JUDGMENT 1. Accused-appellant Jaganaya alias Jagan Lai has been convicted under Section 302, IPC for having caused the death of his mother-in-law Smt. Gauri. deceased, and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.200/- and in default of payment of fine to further suffer two months' rigorous imprisonment. 2. The case of the prosecution is that Smt. Topha (PW 3) is the daughter of Smt. Gauri, deceased and Birdaya (PW I). Smt. Topha was married to the accused-appellant. He belong to other village, but for some time he was living with his in-laws. On 6th August, 1980 at about 9 a.m. Topha (PW 3) and Gauri, deceased, were at the house and it is alleged that the accused wanted to take Smt. Topha to his village, to Which his mother-in-law, Smt. Gauri, objected. The accused is said to have given two lathi blows with a fanti (a piece of wood), as a result of which Smt. Gauri fell on the ground. At the time, Birdaya had gone to his field and there Shanti, a girl aged to 10 years (PW 8) came to him and told him that Jaganya has murdered Smt. Gauri. Birdaya (PW 1) reached his house and saw that Smt. Gauri, his wife, was lying dead with injuries on her head, The injuries were bleeding. He also found Ram Swaroop (PW 2), his brother Girdhari (PW 4) and Topha were also there They also told him that Jaganya had caused the death of Smt. Gauri. Birdaya (PW 1) went to the police station and lodged a written report Ex. P/I about the incident at 11.45 a.m. A case was registered and investigation was set in motion. 3. Dr. Mohan Lai Sharma (PW 12) conducted autopsy on the dead body of Smt. Gauri wife of Birdaya, aged 55 years and found the following external injuries: 1. Contusion 4" x 3" on the left parietal and occipital region just above the left ear transversely. 2. Contusion 3" x 21/2" on the middle part of left side of neck. 4. It was also noticed that her body was stout, mouth closed, eye open, legs and hands extended, rigor mortis present clotted blood in and out side of the nose and left ear. 2. Contusion 3" x 21/2" on the middle part of left side of neck. 4. It was also noticed that her body was stout, mouth closed, eye open, legs and hands extended, rigor mortis present clotted blood in and out side of the nose and left ear. On opening the scalp, Doctor found a fracture of left parietal bone, left occipital bone, left temporal bone, intracerebral haemorrhage on the surface of the brain. Blood was accumulated between skull bones and membranes (dura matter) In the opinion of the Doctor, cause of death was fracture of skull bones causing internal haemorrhage and injury to brain matter leading to death immediately. 5. Accused Jaganaya was arrested vide arrest memo Ex P/9 on 8th August, 1980 and after his arrest while in police custody he made a discovery statement that he has concealed a lathi and he would get it recovered. In consequence of the said information, the lathi, which is alleged to be the weapon of offence, was recovered. The SHO prepared an inquest report of the body of Smt. Gauri also seized the blood stained earth from the spot. The clothes of the deceased were also seized and sealed. Wooden fanti was also recovered. Its recovery memos were prepared. The blood-smeared earth and clothes of the deceased were sent to the Chemical Examiner and the Director, Forensic Science Laboratory vide his report Ex Pill found that blood was detected on the clothes as well as wooden fanti. On examination by Serologist, it was found that the clothes of the deceased were stained with human blood. So far as wooden fanti is concerned, the stains were disintegrated and, hence, their origin could not be determined. 6. After investigation, a charge-sheet was filed. The accused pleaded not guilty and claimed to be tried. 7. The prosecution, in all, examined 12 witnesses. Thereafter the accused was examined under Section 313, Cr. PC. He stands on a bare plea of denial. He denied even anything about his mother-in-law Smt. Gauri. According to him, the witnesses were related inter-se and were deposing against him because of enmity. The accused did not examine any witness in his defence. Placing reliance on the evidence of the prosecution, the learned Addl. Sessions Judge convicted and sentenced the accused-appellant as aforesaid, 8. He denied even anything about his mother-in-law Smt. Gauri. According to him, the witnesses were related inter-se and were deposing against him because of enmity. The accused did not examine any witness in his defence. Placing reliance on the evidence of the prosecution, the learned Addl. Sessions Judge convicted and sentenced the accused-appellant as aforesaid, 8. We have heard the learned counsel for the accused-appellant and the learned Public Prosecutor for the State and have been taken through the evidence on record. 9. go far as the evidence that it is the accused Who caused injury to Smt. Gauri is concerned, the learned counsel for the accused-appellant could not convince us that the evidence should not be relied upon. On behalf of the prosecution as many as four eye-witnesses were examined, viz. Ram Swaroop (PW 2) Topha (PW 3), Girdhari (PW 4) and Shanti (PW 8). Out of the above flatbed four witnesses, two witnesses Girdhari (PW 4) and Shanti (PW 8) did not witness the occurrence. Girdhari (PW 4) in his examination-in-chief has stated that Churl had died at her house. Topha and Ram Swaroop has witnessed the occurrence and saw the accused running away. At that time, it was 8-9 a.m. In his cross-examination, he has stated that in between his house there is a house of Jaganaya. But, he could not say as upto what distance the accused-appellants ran away when he was on the spot. Therefore, as per his own statement he reached the spot after the occurrence had taken place and had shanti the accused running away. Shanti (PW 8) is a child witness aged 10 years. According to the note appended by the learned Addl. Sessions Judge, she understood the difference between truth and falsehood and was a competent witness. In her examination-in-chief she has stated that she herself witnessed the occurrence. But, in her cross examination she states that when she reached the spot, Smt. Gauri was lying and blood was oozing out from head injury. She further states at the end of her cross-examination that when she reached the spot from the house of Ram Pyari accused Jaganaya had already run away from the house. She did not see him running. Thus, she did not witness the occurrence. She further states at the end of her cross-examination that when she reached the spot from the house of Ram Pyari accused Jaganaya had already run away from the house. She did not see him running. Thus, she did not witness the occurrence. But, even if the statements of the above two witnesses, Girdhar (PW 4) and Shanti (PW 8) are excluded, there still remains the evidence of Topha (PW 3) wife of the accused and Ram Swaroop (PW 2) who is the sort of the deceased. He resides in the same house. Therefore, his presence was natural at the time of the occurrence. He states that the occurrence took place at about 7 or 8 a m. Topha (PW 3) wife of the deceased, states that the accused had given blows by a wooden fanti on the head of Smt. Gauri, as a result of which she died on the spot. At that time, she, her brother Ram Swaroop and Girdhari were present. According to her, the accused had broken the lock of her (Topha's) room and entered into it. Her mother Smt. Gauri entered that room and thereafter she does not know as to what had happened, but the accused gave beating to her. She raised an alarm and the accused tan away. She has specifically stated that in between the house of Girdhari and her house there is another house. Girdhari arrived after hearing the alarm. She further states that the occurrence was witnessed brother, Ram Swaroop and Shanti. According to her, her husband is not of an unsound mind, but he is of hot temperament. Though, she has denied that her husband wanted to take her to the house of in-laws, but it appears from the First Information Report that this was the reason why the occurrence took place. After having gone through the statement of Topha (PW 3) who is the wife of the accused, we see no reason to disbelieve the statement that the accused-appellant gave blow with wooden fanti to Smt. Gauri, her mother. Ram Swaroop (PW 2) is the son of Smt. Gauri, deceased and brother of Topha. He states that the accused gave beating to his mother and he did not intervene because of the fear of being beaten by the accused. He has further stated that when the accused visited the house he used to maltreat his sister Smt. Topha. Ram Swaroop (PW 2) is the son of Smt. Gauri, deceased and brother of Topha. He states that the accused gave beating to his mother and he did not intervene because of the fear of being beaten by the accused. He has further stated that when the accused visited the house he used to maltreat his sister Smt. Topha. His mother Smt. Gauri had returned from the well after taking bath then the accused gave her beating to her. According to him, the accused had broken the lock of the house of Smt. Gauri. Smt. Gauri has said why the accused had come and if he so likes he can take his wife Topha. No doubt, he has stated that her mother has slipped on the well, but he states that at that time she had not received any injury. 10. From the above evidence, it can be said that and his convictions was converted from Section 302, IPC to Section 304-TI, IPC. In the second case, death occurred on account of dagger injury caused on the neck. The occurrence took place without any pre-meditation while the deceased along with the accused and others had finished meals. It was held that the accused could not be said to have any intention to cause the particular injury on the vital Part. The accused, however, must be deemed to have knowledge that death might be caused by his act, and the conviction was altered from Section 302, IPC to Section 304-II, IPC. 11. In the instant case, as it appears from the evidence on record as well as from the medical evidence of Dr. Mohan Lal Sharma (PW 12) that the accused gave a blow by wooden fanti on the left side of the neck. There was no motive and the occurrence took place all of sudden when, as per the case of the prosecution, the accused wanted to take away his wife. The deceased raised alarm to intervene. But the nature of the injuries inflicted on the head of the deceased is fracture on left parietal bone, left temporal bone and intracerebral haemorrhage found on the surface of the brain. Dr. The deceased raised alarm to intervene. But the nature of the injuries inflicted on the head of the deceased is fracture on left parietal bone, left temporal bone and intracerebral haemorrhage found on the surface of the brain. Dr. Mohan lal has not said that this injury was sufficient in the ordinary course of nature to cause death, though he has said that the cause of death was Fracture of skull bones causing intracerebral haemorrhage and injury to brain matter leading to death immediately. In the instant case, looking to the nature of the injury it can be said that the case of the accused is covered by exception of Section 300, IPC, and it is culpable homicide not amounting to murder. The accused did an act with the knowledge that his act is likely to cause death. The accused is, therefore, liable to be punished under Section 304-11, IPC. 12. In the result, we partly allow this appeal; alter the conviction of the accused-appellant from Section 302, IPC to Section 304-II, IPC and sentence him to seven years' rigorous imprisonment and a fine of Rs. 100/-and in default of payment of fine to further suffer three months' rigorous imprisonment. 13. Let the accused he informed accordingly.Appeal partly allowed. *******