JUDGMENT : P.B.BALAJI, J. 1. The present Criminal Appeal has been filed by the sole accused, challenging the judgment and decree in S.C.No.149 of 2017 on the file of the Additional Sessions Judge, Virudhunagar, dated 28.09.2022, in and by which the appellant has been convicted for the offence under Section 302 I.P.C and was sentenced to undergo life imprisonment and also to pay a fine of Rs.1,000/- and in default of payment of such fine, to undergo six months rigorous imprisonment. 2. Case of the prosecution: 2.1. The deceased Periyasamy, a resident of the Srilankan Refugee Camp, used to receive Rs.1,000/- every month from his son and daughter, who are residing abroad. The amount sent by his children was saved by the deceased Periyasamy. However, when the amount went missing and Periyasamy suspected the accused, namely, Suman, for the theft, Periyasamy had spread word about the same in the Refugee camp and therefore, the accused provoked by the actions of the deceased Periyasamy, has committed the murder on 09.05.2017 at 09.30 pm. The deceased Periyasamy was initially taken to a private hospital and from there to the Government Hospital, Sivakasi, where he was declared brought dead. 3.Complaint: 3.1. The daughter of the deceased Periyasamy, Valliammal has given the complaint to the Sub Inspector of Police, Amathur Police Station, Virudhunagar, on 10.05.2017. 3.2. The complaint in brief is that the deceased Periyasamy is a Srilankan National, residing with his wife Anula at the Rufugee Camp, Srivilliputtur. The daughter of the deceased Periyasamy, namely, Valliammal, on 09.05.2017 at about 09.30 pm accompanied by one Padmarajan, was taking food for the deceased Periyasamy. A neighbour, Yogeswari also accompanied them and when they reached the house of the deceased, they heard unusual sounds of the deceased Periyasamy. They saw the accused sitting on the chest of the deceased and pressing his hands on the neck of the deceased. Valliammal and Padmarajan on seeing the same, shouted and the accused pushed them and ran away. Valliammal and Padmarajan took the deceased in an auto-ricksaw to a private hospital, namely, Thangavel Hospital at Thiruthangal. On examining Periyasamy, the Doctor at Thangavel Hospital advised them to take Periyasamy to the Government Hospital. Periyasamy was rushed to the Government Hospital, Sivakasi and there Dr.Kishore, examined him at 10.15 pm and declared him dead. 4.Investigation: 4.1. Valliammal and Padmarajan took the deceased in an auto-ricksaw to a private hospital, namely, Thangavel Hospital at Thiruthangal. On examining Periyasamy, the Doctor at Thangavel Hospital advised them to take Periyasamy to the Government Hospital. Periyasamy was rushed to the Government Hospital, Sivakasi and there Dr.Kishore, examined him at 10.15 pm and declared him dead. 4.Investigation: 4.1. Based on the complaint given by the daughter of the deceased Valliammal, an F.I.R was registered on 10.05.2017 at about 00.30 Hours, in Crime No.180 of 2017 for the offence under Section 302 I.P.C. After registration of the F.I.R, investigation was handed over to the Inspector of Police, Amathur Police Station, namely, Ramaraj, who has been examined as P.W.15. Based on the police report, the case has been taken on file in P.R.C.No.19 of 2017 on the file of the Judicial Magistrate No.II, Virudhunagar and after committal, the case has been made over to the Additional District and Session Judge, Virudhunagar, in S.C.No.149 of 2017. 5. The Additional District and Session Judge, Virudhunagar, framed a charge against the accused under Section 302 I.P.C. 6. On the side of the prosecution, Valliammal, daugther of the deceased was examined as P.W.1 and the eye witnesses, Padmarajan was examined as P.W.2 and Yogeswari was examined as P.W.3, P.W.4 to P.W.7 were neighbours, who however turned hostile. P.W.8 is the mahazer witness; P.W.9 is the Doctor attached to the Government Hospital, Sivakasi, who examined the deceased and declared as dead; P.W.10 is the Doctor, who performed the post mortem; The Police constable Grade-I has been examined as P.W.11. P.W.12 and P.W.13 are the revenue officials who have spoken about the regular receipt of Rs. 1,000/- by the deceased. P.W.14 is the Special Sub Inspector of Police, who registered the F.I.R and P.W.15 is the investigating officer. On the side of the prosecution, Ex.P1 to Ex.P17 have been marked. 7. At the time of questioning under Section 313(2) Cr.P.C, the accused has denied the charges as false. 8.Trial: 8.1. The learned Additional District and Session Judge, Virudhunagar, finding that the prosecution had established the case beyond all reasonable doubt, convicted the accused for the offence of murder under Section 300 I.P.C and consequently imposed punishment of life time imprisonment, together with a fine of Rs.1,000/- and in event of default in payment of fine, directed the accused to undergo further period of six months rigorous imprisonment. 9.Submission of the learned counsel for the appellant: 9.1. We have heard Mr. M.Jegadeesh Pandian, learned counsel for the appellant and Mr.E.Antony Sahaya Prabahar, learned Additional Public Prosecutor for the respondent. 9.2. The learned counsel for the appellant invited our attention to the evidence of P.W.1 and P.W.2 and would state that it was not a case of instantaneous death and the deceased was alive when he was taken to the private hospital and only when he was taken to the Government Hospital from there, he was declared dead. The learned counsel would therefore state that having not examined the Doctor, who examined the deceased at the private hospital, the Court below ought to have drawn adverse inference. He would also specially draw our attention to the post mortem certificate in Ex.P9 and contend that when the Hyoid bone was intact, it cannot be treated as a case falling under Section 302 I.P.C. He would further state that the deceased was aged about 77 years and he was in the habit of playing cards and only as a result of a dispute between the deceased and the accused in relation to the same, quarrels had arisen and in any event from the nature of injuries sustained and as found in the post mortem certificate in Ex.P9, he would contend that it cannot be a case of murder. 10.Submission of the learned Additional Public Prosecutor: 10.1. The learned Additional Public Prosecutor would state that with regard to the case set up by way of defence that the quarrel revolving playing cards, there was absolutely no evidence on the side of the accused; the evidence of eyewitness P.W.1 to P.W.3, despite the witness P.W.4 to P.W7 turned hostile, corroborated with the medical evidence and as well as the Accident Register. He would further state that there is no error committed by the Court, below in coming to the conclusion that the appellant had committed murder and that the case would fall well within the four corners of Section 302 I.P.C 11.Discussion: 11.1. The case of the prosecution is that the deceased had spread word in the Refugee Camp as if the accused had stolen the money that was being sent by his children from Abroad and angered by such acts of the deceased, the accused was provoked and in order to take revenge, he has committed murder. The case of the prosecution is that the deceased had spread word in the Refugee Camp as if the accused had stolen the money that was being sent by his children from Abroad and angered by such acts of the deceased, the accused was provoked and in order to take revenge, he has committed murder. The evidence of the daughter of the deceased P.W.1 and other eyewitnesses P.W.2 and P.W.3 stand corroborated and their versions that the accused sat on the deceased, Periyasamy and strangled his neck and conjointly with evidence of Doctor and post mortem report, confirming nail marks on the neck of the deceased Periyasamy, clearly establishes a direct nexus between the appellant and the death of the said Periyasamy. 12. We have no hesitation in confirming the findings of the trial Court that the accused was the sole cause of the death of the deceased Periyasamy and no grounds arise to interfere with the said well-considered findings of the trial Court, in this regard. 13. Coming to the offence and sentence imposed, we find merit in the arguments of the learned counsel for the appellant that the offence would fall under first Exception to Section 300 of the Indian Penal Code and does not warrant punishment of life imprisonment. The deceased was aged about 77 years and admittedly, there had been an ongoing feud with the accused, as the deceased was suspecting the accused of having stolen money, sent by the children of the deceased from abroad. The deceased has also gone about spreading word in the Refugee Camp, which has provoked the accused and led to the offence being committed on the fateful day. 14. From the post-mortem report, it is seen that “the body of an average-built male was lying on its back with all four limbs extended. The eyes and mouth were open. There was no rib fracture and the hyoid bone was intact. Externally, three crescent-shaped nail marks were seen on the neck.” 15. Under Section 299 I.P.C., an offence of culpable homicide is made out when death is caused by doing an act with the intention of causing death, or with the intention of causing such bodily injury or likely to cause death, or with the knowledge that he is, likely by such act, to cause death. Under Section 299 I.P.C., an offence of culpable homicide is made out when death is caused by doing an act with the intention of causing death, or with the intention of causing such bodily injury or likely to cause death, or with the knowledge that he is, likely by such act, to cause death. However, in terms of Section 300 I.P.C, culpable homicide as set out and explained in I.P.C would amount to murder, when the act by which the death is caused is done with the intention of causing death; or it is done with the intention of causing such bodily injury as the offender knows that it would likely to cause the death; or if it is done with the intention of causing bodily injury and such bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or if the offender does the act knowing that it is so imminently dangerous, that in all probability, it will cause death, or bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 16. Culpable homicide, however, would not amount to murder, in terms of Exception I, if the offender, whilst deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. This exception is however subject to three provisos. Firstly, the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly, the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly, the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation to the Exception states that whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 17. Keeping in mind the above, examining the evidence of P.W.1 and P.W.2 as well as the nature of the injuries, as seen from the post mortem report and the evidence of the Doctor examined in this regard, the Hyoid bone was intact. 17. Keeping in mind the above, examining the evidence of P.W.1 and P.W.2 as well as the nature of the injuries, as seen from the post mortem report and the evidence of the Doctor examined in this regard, the Hyoid bone was intact. The commission of the offence was only because of sustained provocation, though not strictly amounting to any sudden or grave provocation. The case thus clearly false under Exception-I. 18. We also find that the prosecution had not brought on record any legal evidence to establish beyond all reasonable doubt that the appellant's actions were pre-planned or premeditated. When the appellant acted only out of sustained provocation, and he did not have any intention to cause murder, the case would fall only under Section 304 Part-I and not 302 of IPC . The evidence on record would also clearly suggest that on the fateful day, as a result of heated arguments and a fight that followed alone, the appellant acted in the manner, which no doubt resulted in death. Even if the appellant had the intention that his act of strangling the deceased's neck was likely to result in death, when there is no material evidence brought on record by the prosecution that the appellant had necessary mens rea, then the conviction can only be brought under Part I of and not Section 302 . The appellant had also not voluntarily provoked himself and there has been reason for his sustained provocation, as already discussed herein above. We are therefore convinced that the case on hand will certainly fall under Exception (1) to Section 300 of and the accused cannot be sentenced to life imprisonment under of I.P.C. 19.Conclusion 19.1. In the light of the foregoing discussion, we are of the considered view that the conviction as well as the sentence passed by the learned Additional District and Sessions Judge, Virudhunagar, require to be modified. Having found that the case would fall within Exception (1) to Section 300 of the Indian Penal Code , the sentence of life imprisonment is modified to seven years rigorous imprisonment under Section 304 Part I of I.P.C.. The fine of Rs.1,000/- is enhanced to Rs.5,000/-, and in default, the accused shall undergo six months simple imprisonment. 20. Having found that the case would fall within Exception (1) to Section 300 of the Indian Penal Code , the sentence of life imprisonment is modified to seven years rigorous imprisonment under Section 304 Part I of I.P.C.. The fine of Rs.1,000/- is enhanced to Rs.5,000/-, and in default, the accused shall undergo six months simple imprisonment. 20. This Criminal Appeal is partly allowed and the judgment in S.C.No.149 of 2017 on the file of the learned Additional District and Sessions Judge, Virudhunagar dated 28.09.2022, is modified to the extent indicated above. It is needless to state that the appellant shall be entitled for set off in accordance with Section 428 of the Code of Criminal Procedure, for the period of detention already undergone by him. The appellant is directed to surrender before the Judicial Magistrate No.2, Virudhunagar forthwith and the learned Judicial Magistrate shall ensure that the appellant is confined to the prison to undergo the remaining sentence.