G.M. LODHA, J.—This appeal has been filed by Jagannath who has been convicted under S. 302, IPC and sentenced to imprisonment for life for causing the death of none else but his own wife. Jagannath had two wives. One was married having no child. He, therefore, contracted nata with Ghisi, deceased, and started living with both of them. After the death of the married wife Jagannath lived only with Ghisi. Ghisi had issues from her earlier husband Nand Ram, namely, Jagdish and Ram Karan. She gave birth to son Babu and daughter Santra. They were all living in one house. On 18-5-1977 at 7.00 a.m. Ghisi was injured by Jagannath by knife. Babu was there, who tried to catch hold of Jagannath, but Jagannath ran away. Compounder was called, first-aid was given to Ghisi and she was taken to the Tonk hospital on 19th May, 1977, at 11.50 a.m. she died in Tonk. Before her death Ghisi was examined by PW/6 Udmao Singh, S.H.O. who recorded her dying declaration in the form of FIR. 2. The accused was arrested, investigation followed, challan was filed, after commitment charge-sheet was read over and the accused denied the charge. The evidence was recorded and after hearing both the parties, the accused-appellant was sentenced under Sec. 302 IPC as stated above. 3. There is no doubt nor any challenge has been made, so far as the death of the deceased is concerned, by the counsel for the accused-appellant, in fact, the accused himself admits in his statement under Sec. 313, Cr.P.C. that he had a knife in his hand and that Ghisi abused him and he does not know what happened thereafter. 4. The entire evidence in this case consists of a dying declaration, statement of Babu who is son of the deceased Ghisi from the accused, and the statement of the S.H.O. in addition to the medical evidence. 5. According to the medical evidence, the deceased received the following injuries:- 1. Incised wound 1/2" x 1/4" x skin deep-left forearm in its middle. 2. Incised wound 1/2" x 1/4" cutting the skin. The plurao was also out. Air was coming out from the wound on the left scapula in its middle. 3. Incised wound 1" x 1/4" x skin deep on the right scapula modial side. 4. Incised wound 1/2" x 1/4" x skin deep-left arm. 6. 2. Incised wound 1/2" x 1/4" cutting the skin. The plurao was also out. Air was coming out from the wound on the left scapula in its middle. 3. Incised wound 1" x 1/4" x skin deep on the right scapula modial side. 4. Incised wound 1/2" x 1/4" x skin deep-left arm. 6. Injury No. 2 was grievous and other were simple. All were caused by sharp weapon. According to the Doctor the death was caused due to haemarr-hage due to the injury to the left lung. 7. Incised wound 1" x 1/4" x skin deep on the right scapula modial side. 4. Incised wound 1/2" x 1/4" x skin deep-left arm. 6. Injury No. 2 was grievous and other were simple. All were caused by sharp weapon. According to the Doctor the death was caused due to haemarr-hage due to the injury to the left lung. 7. Ghisi in her dying declaration has given the following story:- ipkZ c;ku Jherh ?khlh ifRu txUukFk tkfr uk;d fuoklh ukusj ih-,l-] ihiyw tkfr uk;d mez 35 lkyA us c;ku fd;k fd eSa lEor~ 2014 esa Jh txUukFk iq= ?kklh tkfr uk;d fuoklh VkSd eksgYyk ?kkoeh gky ukusj ds ukrs dh vkSjr gwWA vkt lqcg 7 cts dh ckr gS esjs ifr txUukFk ds o esjs yM+ds uUnk ds ckrphr r; gq;h Fkh fd cki lwa ek¡ dh ,Dljs IysV djokus dks ysdj x;k Fkk eSaus ,Dljs Hkh ugha djk;k u nok fnyokbZ bl ij esjk ifr ukjkt gqvk vkSj dgus yxk fd vxj rqe yksxksa us T;knk eq>s rax fd;k rks tku ls ¼?khlh½ dks ekj nwaxk vkt tc txUukFk esjs dejs esa ls nks QksVw ¼1½ lUrks"kh ekrk dh o ¼2½ jkenso dh mrkj dj QSad nh eSaus mls Vksdk bl ij og ukjkt gks x;k vkSj viuh iguh gq;h /kksrh dh vksV esa ls pkdw fudky dj esjh ihB esa nks nQk pksV ekjh oks nks pksV ck, gkFk dh dykbZ o Hkqtk ij ekjh esjs [kwu fudyus yxk eSa uhps fxj iM+ xbZ eq>s ekewyh csgkskh vk xbZ Fkh pUn feuVksa esa tc eq>s gksk vk;k rks txUukFk Vksad Hkkx dj vk x;k pkdw ekjrs le; esjs NksVs yM+ds ckcw us ns[kk FkkA chp cpko djk;k FkkA eSa o ckcw us ckgj NksM+k fd;k rks xkao ds cgqr ls vkneh vk x,A ukusj xkao ds ljdkjh MkDVj lkgc Hkh vk x, mUgksaus esjs bUtsDku yxk;k Fkk o iÍh Hkh cka/kh Fkh] vkSj esjs yM+ds uUnjke ls MkDVj lkgc ls dgk Fkk fd Vksad ys tkvksa ij bl uUnjke eq>s Å¡V xkM+h esa Vksad kQk[kkus esa yk, gSA txUukFk esjs ls ihNs ls gh jaftk j[krk gS oks ukjkt jgrk gS txUukFk dh nwljh vkSjr kknhkqnk Fkh tks 2 lky igys ej tkus ls esjs ikl ukusj jgrk gSA 8. Dr. Dr. Tiwari appearing for the accused-appellant has admitted that according to the statement of Babu the incident took place because Ghisi refused to give money to the accused and that followed by not exchange of words. By this the accused, being husband, was enlarged and he picked up a knife from the kitchen and just caused injuries in grave and sudden provocation having lost his self-control. According to Dr. Tiwari, this is well proved by the evidence of Babu, the only eye-witness to the occurrence. Dr. Tiwari, therefore, submits that at the most the case can be held to be proved under Sec. 304-II, IPC against the accused-appellant. 9. The learned Public Prosecutor has opposed the appeal. 10. We have carefully gone through the evidence on the record of the case. There is no doubt that Ghisi was killed on account of the injuries caused by the accused, Jagannath, by knife. The cause of the death, according to the Doctor was haemorrhage due to the injury to the left lung. 11. Now, the principal point to be considered is, whether the accused can be given a lesser sentence, as argued by Dr. Tiwari by altering conviction i.e. from Sec. 302, IPC to Sec. 304-II, I.P.C. 12. Babu in his statement has admitted that so far as his statement under Sec. 161, Cr.P.C. is concerned, he never gave a story that his mother gave beating by chappals to his father at the time of the incident. The explanation given by him is that this question was not asked by the police. We are, ther;-fore, of the opinion that this story that the wife, Ghisi, deceased, gave chappal blows on the head of the accused, the husband appears to be an after-thought and it appears to have been invented to help his father after the death of his mother. 13. The statement of Babu (PW/4) about the story of using the chappal would show that there was some altercation between the husband and the wife. This story further shows that the knife was picked up from that very place. It was a kitchen knife which is used for cutting vegetable and on the spur of the moment, without pre-meditation, when there was some altercation, the husband (accused) feeling enraged picked up a knife and caused injuries. This story further shows that the knife was picked up from that very place. It was a kitchen knife which is used for cutting vegetable and on the spur of the moment, without pre-meditation, when there was some altercation, the husband (accused) feeling enraged picked up a knife and caused injuries. The dying declaration, of course, gave a different story and it shows that the husband was not arranging for the medical treatment of Ghisi. On the earlier day, the accused told Nanda that he (Nanda) neither brought the X-ray plate, nor the medicine for his mother and this enraged the accused. So far as the happening on the day of the occurrence is concerned, the story in dying declaration is that Jagannath threw away the photos, which was objected to by the deceased. On this Jagannath tookup a knife and caused injuries to Ghisi resulting in her death. 14. Since we are left with the statement, of Babu alone, it would be safe to rely on it, rather than the story given in the dying declaration. The common theme between the two is that knife injuries were caused by Jagannath to the deceased, which resulted in her death. Again, the common theme in both is that there was some altercation, although the reasons for altercation are different. 15. In view of the above, we would like to argue on the right side by giving the benefit of doubt to the accused-appellant and convicting him under Sec, 304-11, IPC rather than under Sec. 302 IPC, since the incident took place on the spur of moment and in a sudden altercation the accused lost his self-control. We would, therefore, hold the accused-appellant guilty under Sec. 304-11, IPC. 16. Dr. Tiwari submitted that the accused is an old man and we should leave him to the sentence already undergone by him. We are of the opinion that the present one is not a case of that nature. By an altercation of this nature if the husband, (Jagannath) taking advantage of a weaker sexs weakness inflicts a number of injuries, he is not entitled to any extraordinary leniency or the benefit of being released on the sentence already undergone by him. 17. In the result, the appeal is partly accepted. The conviction of the accused - appellant under Sec. 302, IPC and the sentence for imprisonment for life is set aside. 17. In the result, the appeal is partly accepted. The conviction of the accused - appellant under Sec. 302, IPC and the sentence for imprisonment for life is set aside. Instead, the appellant is convicted under Sec. 304-II, IPC and sentenced to seven years rigorous imprisonment. 18. The accused is not present in Court to day. The learned counsel for the accused should take steps to get him surrendered within a period of one month. The trial Court is also directed to issue a warrant of arrest and get him arrested and send him to jail for undergoing the sentence awarded to him, by this Court. 19. The certified copy of the judgment will be issued only when a certificate for his having been arrested or having surrendered in jail is produced from the jail authorities.