JUDGMENT V. A. Mohta, J. - By this appeal, conviction for murder of a co-wife is challenged. 2. Sakharam (P. W. 1) was married to deceased Manjulabai. They had no issue. Hence Sakharam married a second wife-accused Sumitra. Sakharam was a postman and was living at Chandrapur in a small room. He was posted to Ballarshah where he used to go early morning and return in the evening. No child was born even to Sumitra. Manjula and Sumitra used to quarrel with each other and Sakharam used to rebuke them. A say before the incident when Sakharam returned from duty he found co- wives quarrelling. He, therefore, beat both of them with a stick. In the morning of the fateful day, i.e. 17th February, 1984, Sakharam left the house as usual at 4 a.m. with a lunch prepared by Manjula. Manjula went to bed. While she was sleeping, accused attacked her with an axe (Article 6) causing multiple injuries, resulting into her instantaneous death. The accused went to the police station and reported that she had murdered her co-wife. There were blood - stains on her clothes, hands and legs. Accused had two injuries-one lacerated on the right hand and the other on the parietal region of the scalp 1" X 1 cm. She was examined by Dr. Suresh Sonarkar (P.W. 10). 3. In the trial as many as 11 witnesses were examine-d. The accused did not dispute that she hit Manjula with an axe. But according to her she did that in exercise of her right of self defence. After Sakharam went away for duty, Manjula dealt a blow with axe on her head. Manjula raised to give a second blow. She resisted, held the axe and thinking that Manjula would kill her, she dealt blows with the said axe to Manjula. 4. Now, the incident of hitting Manjulabai with an axe by the accused is beyond dispute. It is unnecessary to discuss the circumstances leading to that aspect in details. Rightly has the learned Sessions Judge held that it was a homicidal death for which the accused was responsible. 5. Shri Baga, the learned counsel for the appellant, took an exception to the finding that Manjula was hit while she was fast asleep. It is unnecessary to discuss the circumstances leading to that aspect in details. Rightly has the learned Sessions Judge held that it was a homicidal death for which the accused was responsible. 5. Shri Baga, the learned counsel for the appellant, took an exception to the finding that Manjula was hit while she was fast asleep. Having regard to the two injuries on the person of the accused and the evidence of Sakharam (P.W. 1), it seems to us that the possibility of the defence of the accused being correct cannot be ruled out. Sakharam (P.W. 1) on whose evidence prosecution has heavily relied, has stated that he had slapped both the wives. Even in his examination-in-chief, Sakharam has not referred to the beating by sticks. He was not declared hostile and it is, therefore, not permissible for the prosecution to take a stand that Sakharam had deliberately spoken falsehood with a view to save his second wife, as held by the learned Sessions Judge. Under these circumstances, we are unable to sustain the finding that Sakharam (P.W. 1) had deliberately spoken falsehood to save his second wife. 6. Dr. Sonarkar (P.W. 10) has admitted in the cross-examination that the two injuries found on the person of the accused could be caused even by sharp object depending upon the force and the position in which it touched the body. According to him, the injuries were fresh. No doubt, according to him, the age of the injuries was about 6 to 7 years, at 7-30 a.m. when the accused was medically examined. That, after all, is an estimate. That timing does not even tally with the timing of incident of beating by stick by Sakharam duty to which it is said that the two injuries had resulted. 7. True it is that Reshamabai (P.W. 2) has deposed that there used to be every time quarrels between the two wives of Sakharam and that a day before the incident Sakharam had beaten the accused with a stick in the presence of her sister's son Vasant. In the face of clear evidence of Sakharam (P.W. 1) it is difficult to accept the statement of Reshamabai specially when Vasant is not examined. Even she has not made a whisper about the injuries on the person of accused as a result of beating by stick. 8. In the face of clear evidence of Sakharam (P.W. 1) it is difficult to accept the statement of Reshamabai specially when Vasant is not examined. Even she has not made a whisper about the injuries on the person of accused as a result of beating by stick. 8. On the basis of the position of the deceased and Chadar being on her person upto the neck, it has been held that Manjula must have been asleep when she was hit. The learned counsel for the appellant is right when he submits that in view of the fact that when neighbours assembled, Manjula was groaning, the possibility of her body being kept in that position with Chador upto the neck, cannot be totally ruled out. The evidence of Dr. Kambale (P.W. 8), who performed the post mortem examination, to the effect that the injuries were caused while the deceased was sleeping is merely an opinion on the basis of the body position noticed by him after the death. 9. No doubt, there is sufficient evidence of motive. Relations between the two wives were strained. But that circumstance is a double edged weapon. It is inconsonance also with the theory of defence about Manjulabai being the aggressor. The accused, as is in evidence was harbouring a belief that all the time Manjulabai was unjust to her. They had a quarrel previous night. In the morning her husband left the room as usual. Possibility of quarrel taking place again in the morning cannot be ruled out. Neither the defence can be ruled out nor can be the possibility of incident having taken place in a sudden fight and heat of passion. Quite obviously, the accused bas exceeded the right of private defence and hence the case comes either under exception II or exception IV, to section 300, I.P.C. 10. Under these circumstances, in our view, this is a case not of murder but of culpable homicide, not amounting to murder, punishable under section 304 Part II, I.P.C. 11. What sentence is the next question. Considering the mental strain on the accused and her conduct of voluntarily going to the police station immediately after the incident are all relevant circumstances. In our view, therefore, the sentence of imprisonment already undergone would meet the ends of justice. She has been in jail for more than four years. 12. To conclude, the appeal is partly allowed. Considering the mental strain on the accused and her conduct of voluntarily going to the police station immediately after the incident are all relevant circumstances. In our view, therefore, the sentence of imprisonment already undergone would meet the ends of justice. She has been in jail for more than four years. 12. To conclude, the appeal is partly allowed. The accused is held guilty of culpable homicide not amounting to murder punishable under section 304 Part II, I.P.C. The sentence is reduced to the period already undergone. The accused be released forthwith from jail, if not required in any other case. Appeal partly allowed.