JUDGMENT 1. This is an appeal filed by Khaman against the judgment of the learned Sessions Judge, Udaipur, dated October 26, 1972, by which the appellant was convicted under section 302, IPC, and sentenced to undergo imprisonment for life. 2. The incident that led to the prosecution of the appellant may be briefly described as follows:- 3. Mst. Aeji, deceased, was legally married wife of Khaman appellant. Both husband and the wife used to live in a house in village Sagodia along with Nanda. Some time on June 5, 1972, in the afternoon Nanda, father of the appellant, was sitting outside the house while Khaman appellant and his wife Aeji were inside it. No other person was present in the house. All of a sudden, Nanda heard cries of Mst. Aeji such as "run, run I am being beaten." On hearing the cries, Nanda went in and saw Mst. Aeji lying dead in the house and the appellant having a Musal in his hand. Nanda kept his hand on the chest of Aeji with a view to ascertaining whether her heart was palpitating. He noticed blood coming out of the head and mouth of Mst. Aeji, deceased. There was a haematoma on her head which was about the size of an orange and was bleeding. Nanda asked the appellant as to what had happened to Mst. Aeji? The appellant gave him a reply that Mst. Aeji had been bitten by a snake. After some time Nanda with the assistance of Vardha, Chuna and the appellant carried away the dead body of Mst. Aeji on a bier to the cremation ground and burnt it there. In the evening Nanda asked his son Khaman to search out the snake and to kill it but the latter informed the former that he had killed his wife and there was no need to search out the snake. Nanda asked his son why he had killed his wife. Khaman further disclosed that he asked his wife to give him a coconut as he was going to visit a saint. Mst. Aeji refused to give him the coconut so he killed his wife. 4. After the dead body of Mst. Aeji was burnt. Hira uncle of the deceased, heard the news of the murder of Mst. Aeji from Hira son of Sarupji resident of Raoji-ki-Talai. Mst. Aeji refused to give him the coconut so he killed his wife. 4. After the dead body of Mst. Aeji was burnt. Hira uncle of the deceased, heard the news of the murder of Mst. Aeji from Hira son of Sarupji resident of Raoji-ki-Talai. On receiving the news Hira, uncle of the deceased, rushed to the police station, Charbhuja, for making a report to the Station House Officer. He lodged a written report with the Station House Officer, Charbhuja, Camp Sagodia, on June 6, 1972, on the basis of which a criminal case under section 302, I. P. C. was registered and usual investigation was made. In the course of investigation, Durga Singh, Station House Officer, Charbhuja, visited the house of the appellant and inspected the site. He also recovered blood-stained bleedings, one Danda, one Thali and one brass-pot. He noticed blood-stains on the floor of the room and its walls. He inspected the site and prepared a site-inspection memo and arrested the appellant. At the time of his arrest, the appellant was covering his body with a piece of cloth i. e. Dhoti which had stains of blood on it. He took the Dhoti into his possession and sealed it. The appellant, while in the police custody, gave information to the Station House Officer that he had concealed a Musal under an earthen pot Kothi lying inside his house and he was prepared to get it recovered at his instance. The Station House Officer recorded the above Information in a memo Ex. P. 11 and recovered the Musal at the instance of the appellant and in pursuance of his information from underneath an earthen Kothi. The Musal was suspected to have stains of blood on it. So it was seized and wrapped into a piece of cloth and duly sealed. Later on, he sent the Musal and the other articles to the Chemical Examiner for analysis. The Chemical Examiner found the bamboo Danda, Thali, brass-pot, earth of the floor and of the wall, and the Musal positive for blood. The rest of the articles were negative for blood. The Chemical Examiner sent scrapings from Lathi. Thali, brass-pot and the wooden Musal and the sample of the earth to the Serologist, who found the scrapings from lathi, Thali, Musal and the sample of earth stained with human blood. The rest of the articles were negative for blood. The Chemical Examiner sent scrapings from Lathi. Thali, brass-pot and the wooden Musal and the sample of the earth to the Serologist, who found the scrapings from lathi, Thali, Musal and the sample of earth stained with human blood. The Station House Officer collected other necessary evidence in the case and eventually filed a charge-sheet against the appellant for the offence under section 302, IPC in the court of the Munsiff-Magistrate, Raj Samand. The learned Magistrate conducted an inquiry, preparatory to commitment, and, upon finding a prima facie case of murder exclusively triable by the court of Session, committed the appellant to the court of the Sessions Judge Udaipur. The learned Sessions Judge tried the appellant for the offence of murder and found him guilty thereof and sentenced him to undergo imprisonment for life. Aggrieved by his conviction and sentence, the appellant has preferred this appeal through the Superintendent, Central Jail, Udaipur, as stated above. 5. As the appellant was convicted for the offence of murder and as he was not in a position to engage a lawyer, this Court appointed Mr. B. Advani to argue this I appeal on his behalf. 6. We have carefully perused the record and heard the learned Amicus Curiae for the appellant and Mr. N. S. Acharya, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellant that the trial court committed an error in convicting the appellant for the offence of murder of his wife. It was further urged that the prosecution could not lead any evidence - direct or circumstantial to show that Mst. Aeji was done away with by the appellant and the learned Sessions Judge based his decision on mere conjectures. The learned Public Prosecutor, on the other hand, invited, our attention to the statement of Nanda, Ex. P.2, which he gave before the committing court in the presence of the appellant and which was treated as substantive piece of evidence in this case under section 288, old Cr. P. C., and contended on its strength that no other person but the appellant was the perpetrator of the crime of murder of his wife. The Public Prosecutor further relied upon extra judicial confession made by the appellant before Nanda, Wardha and Mst. P. C., and contended on its strength that no other person but the appellant was the perpetrator of the crime of murder of his wife. The Public Prosecutor further relied upon extra judicial confession made by the appellant before Nanda, Wardha and Mst. Lali and on the recovery of the weapon of offence, i.e. Musal from the house of the appellant at his instance and in consequence of his information recorded under section 27 of the Evidence Act. According to his submission, the Musal so recovered at the instance of the appellant was found positive for human blood by the Serologist as is evident from his report Ex. P. 14. 7. We have given our anxious consideration to the rival contentions. In our opinion, the prosecution has led cogent and reliable evidence to prove that the appellant was responsible for the death of his wife. There is trust worthy evidence of the appellants father Nanda which he gave before the committing court and which was treated as evidence in the case by the learned Sessions Judge for all purposes subject to the provisions of the Indian Evidence Act, 1872. In his statement at the trial, Nanda tried to favour his son Khaman by going back upon his previous statement which he gave before the committing court. In the trial court he stated that he was sitting outside his house when the appellant and his wife Mst. Aeji were inside thehouse. He felt thirsty and so he went inside to quench his thirst and saw Mst. Aeji lying dead in the house and the appellant standing by the side of the dead body having no weapon in his hand. He further stated that one Musal was lying on the ground and blood was coming from the head of Mst. Aeji. He asked his son Khaman appellant what had happend to Mst.Aeji? The appellant gave him a reply that Mst. Aeji had been bitten by a snake. Then he along with his brother Wardha and his nephew Chunia and one Dipa carried away the dead body on a bier to the cremation ground and burnt it without giving an intimation about the death of the deceased to the police and to her parents. Nanda was declared hostile and cross-examined by the Public Prosecutor in the trial court. In his cross-examination, he was confronted with his previous statement Ex. Nanda was declared hostile and cross-examined by the Public Prosecutor in the trial court. In his cross-examination, he was confronted with his previous statement Ex. P. 2 which he gave before the committing court. When confronted with his previous statement, Nanda clearly admitted that the statement which he gave before the committing court was true. Again he was confronted with and contradicted by his previous statements Exs. P.3 and P. 1. which he gave before the court of the Sub-Divisional Magistrate under section 164, Cr. P. C. and before the police respectively. When confronted, he admitted these statements also to be true. The Sessions Judge was satisfied that the deposition given by Nanda before he committing court was reliable and true and that Nanda was not telling the truth before himself. So he treated his statement before the committing court as evidence in the case under section 288, Cr. P. C. 1898. 8. In his statement Ex. P. 9 which he gave before the Committing Magistrate, Nanda stated in clear and definite terms that he was sitting outside his house in the afternoon. At that time he heard the cries of Mst. Aeji, such as, run, run. I am being beaten. On hearing the cries, he went inside the house and found Mst. Aeji lying dead. He noticed blood coming out of the mouth and head of Mst. Aeji. He further noticed one haematoma which was bleeding and was of the size of an orange. He saw the appellant having a Musal in his hand. He asked the appellant having as what had happened to Mst. Aeji. The appellant thereupon gave him a reply that she had been bitten by a snake. After some time Nanda prepared a bier with the assistance of Wardha, Chunia and Dipa and carried on it the dead body of Mst. Aeji to the cremation ground where it was burnt without giving any information to the villagers and to the parents of the deceased. In the evening he further asked the appellant to search out the snake and to kill it. Thereupon, the appellant confessed his guilt by stating that he had done away with his wife. Nanda further questioned the appellant why he had killed his wife. Thereupon, the appellant replied that he asked for a coconut from Mst. Aeji but she refused to give him the coconut for being taken to a saint. Thereupon, the appellant confessed his guilt by stating that he had done away with his wife. Nanda further questioned the appellant why he had killed his wife. Thereupon, the appellant replied that he asked for a coconut from Mst. Aeji but she refused to give him the coconut for being taken to a saint. Annoyed by her refusal, he killed her. The above statement of Nanda which he gave before the committing court and which has been brought on the record of this case under section 288, old Cr. P. C. appears to be true and reliable as it has not been shaken at all in cross-examination by the learned counsel for the appellant. Nanda is the father of the appellant. It cannot be expected of him to screen the real offender and to implicate his son falsely in the commission of the crime, especially when there is nothing on the record to show that he had enmity with or personal grudge against his son on any score. From his evidence it is fully established that the deceased raised an outcry such as run, run. I am being beaten. On hearing the cries, Nanda went in and saw her lying dead on the floor having a bleeding injury on her head. The appellant was seen by Nanda standing near the dead body having a `Musal" in his hand. It is further proved from the evidence of Nanda that the appellant, when questioned as to what had happened to his wife, gave a false reply that she had been bitten by a snake and, later on, in the evening when further asked to search out the snake and to kill it, he made an extra judicial confession of his guilt before his father Nanda and uncle Wardha that he had killed his wife. The evidence of Nanda relating to extra-judicial confession of his guilt made by the appellant finds corroboration from the statement from Wardha, P.W.3, who is no other person but the uncle of the appellant. Wardha stated in his deposition that the appellant, when asked to search out the snake, admitted before him and his father that he had killed his wife with a `Musal' and for no purpose the snake should be searched. Wardha stated in his deposition that the appellant, when asked to search out the snake, admitted before him and his father that he had killed his wife with a `Musal' and for no purpose the snake should be searched. There is no reason to disbelieve the evidence of Wardha, especially when it has not been assailed in cross-examination by the learned counsel for the appellant. Consequently, we have no hesitation in holding that the prosecution succeeded in proving beyond reasonable doubt that Mst. Aeji died an instantaneous death on account of an injury caused to her head by the appellant with a `Musal' and the appellant very day later on made an extra-judicial confession of his guilt to his father and uncle. It is no doubt true that the dead body of Mst. Aeji was not available for post-mortem examination as it had been burnt by the appellant, his father, his uncle and others without informing villagers and the parents of the deceased, but, as stated earlier, it has been established on the record that the death of Mst. Aeji was homicidal and no other person but the appellant was responsible for it. 9. There is another incriminating piece of evidence against the appellant. The piece of evidence is the recovery of `Musal' from underneath the earthen container lying in his house. This recovery of the weapon of the offence, i. e. `Musal' was at the instance of the appellant and in pursuance of his information which he furnished to the Station House Officer, while in the police custody. The recovery of the "Musal" stands fully proved by the evidence of Durag Singh, Station House Officer and Motbir Bhura P. W. 6 whose evidence could not be shaken at all in cross-examination, by the defence. The Musal was properly sealed by the Station House Officer in the presence of Bhura as there were stains of blood on it. It was later on sent to the Chemical Examiner, who found it blood-stained. Scrapings from this article were further sent to the Serologist who, upon analysis, found them positive for human blood. The appellant was seen by his father Nanda having this Musal in his hand at the time when the latter entered the house and saw Mst. Aeji lying dead on the floor. Scrapings from this article were further sent to the Serologist who, upon analysis, found them positive for human blood. The appellant was seen by his father Nanda having this Musal in his hand at the time when the latter entered the house and saw Mst. Aeji lying dead on the floor. Hence, the trial court rightly placed reliance on the recovery of the weapon of the offence, i. e. Musal in convicting the appellant as it forms an important link in the chain of evidence established against him. The appellant in his statement before the trial court denied to have killed his wife. His plea at the trial was that his wife suffered from epileptic fits and so she fell from the stairs and sustained an injury. There is no material on the record to Mst. Aeji was having epileptic fits in her life-time and that on the date of the occurrence she fell from the steps and received an injury. Mere denial of the appellant is not sufficient to rebut the strong positive evidence of his guilt adduced by the prosecution. Hence, we do not find any substantial ground to differ with the finding of the trial Judge that the appellant was responsible for the death of his wife. 10. As regards the offence committed by the appellant, it has been contended by the learned Amicus Curiae that from the facts and the circumstances proved in this case no inference can legitimately be drawn that the act of the appellant falls under any of the clauses of Section 300, I. P. C. because the quarrel between the husband and the wife was a sudden one over a petty matter, i. e. demand and refusal to give a coconut for the purpose of offering it to a saint and because as a result of such quarrel the appellant dealt a single blow on the head of his wife with a Musal in a fit of rage. The above contention is not devoid of force. There is nothing on the record to show that the relations between the husband and the wife were strained prior to the occurrence. On the other hand, it appears from the record that both were living together in the house along with Nanda. The above contention is not devoid of force. There is nothing on the record to show that the relations between the husband and the wife were strained prior to the occurrence. On the other hand, it appears from the record that both were living together in the house along with Nanda. The circumstances in which assault had been made on his wife by the appellant clearly indicated that he was angry at the refusal of his wife to give him a coconut for offering it to a saint. In a fit of anger, he picked-up a Musal lying in his house and gave a single blow on the head of his wife which proved fatal. In our opinion, the act by which the death was caused by the appellant was not done with the intention of causing her death or with the intention of causing her such bodily injury as was sufficient in the ordinary course of nature to cause death but certainly it was done with the knowledge that he was likely by such act to cause her death. 11. Mr. N. S. Acharya, Public Prosecutor, argued before us that the circumstances proved in this case clearly indicated that the appellants intention was to cause an injury on the head of the deceased and the injury intended to be caused on the head of the deceased was sufficient in the ordinary course of nature to cause her death and so the appellant was rightly convicted for the offence under section 302 I. P. C. The above contention has no force, because there is no medical evidence to show that the head injury sustained by Mst. Aeji was sufficient in the ordinary course of nature to cause her death. In the absence of any such positive evidence, it cannot be safely held that the act of the appellant fell within clause thirdly of section 300 IPC. The appellant could therefore, he held guilty under Part IIof section 304 I. P. C. 12. As regards the sentence, it may be observed that the appellant has already undergone rigorous imprisonment for more than 6 years and 4 months since the date of his conviction, i. e. October 26, 1972. The appellant could therefore, he held guilty under Part IIof section 304 I. P. C. 12. As regards the sentence, it may be observed that the appellant has already undergone rigorous imprisonment for more than 6 years and 4 months since the date of his conviction, i. e. October 26, 1972. Prior to this date he has undergone detention during investigation, inquiry and trial of this case as an under trial prisoner for which period he is entitled to a set off under section 428 Cr. P. C. Upon calculation, it appears that this period comes to 4 months and 20 days since the date of his arrest i. e. June 7, 1972 to October 26, 1972. The ends of justice would be met if his sentence is reduced to the term already undergone by him.The result of the above discussion is that we partly accept the appeal filed by Khaman, alter his conviction from under section 302, I. P. C. to one under section 304, Part II IPC, and reduce his sentence to the term already undergone by him. The appellant is in jail. He shall be set at liberty forthwith, if not required in connection with some other case.Appeal partly allowed. *******