JUDGMENT Mr. Virendra Saran, J. - This is an appeal against the judgment and order dated 26.2.1983 of the learned Sessions Judge Pilibbit in S.T. No. 166 of 1982. The learned Sessions Judge has convicted and sentenced Prashant Kumar, under Section 302 I.P.C. to imprisonment for life. 2. The prosecution case is that the appellant was married to Snit. Sati Rani, daughter of Mahadev Mandal P.W. 1. The marriage was solemnised about six year proceeding the incident. The couple was residing in Gupta Colony within the jurisdiction of police station Neoria in the district of Pilibhit. While P.W. I Mahadev Mandal was residing in another colony, known as Rani colony within the jurisdiction of the same police station. The incident is said to have taken place in the night intervening 10/1 1-4-1982 at about mid night. It is alleged that P.W. 4 Sri Pad Mandal informed P.W. I Mahadev Mandal at about 7. a.m. on 11.4.1982 that the appellant had murdered Smt. Sati Rani and at about 12 O'clock in the night cries of Snit. Sabi Rani attracted P.Ws. Panni Prahlad Kaviraj, Sri Pad Mandal and one Naresh who saw the incident in torch light. It is further alleged that witnesses were able to apprehend the appellant with a Katari in his hand. On this information informant Mahadev Mandal reached the spot and he as well as others took the appellant to the Police Station leaving the dead body being watched by villagers. 3. P.W. Mahadev Mandal lodged a First Information Report at P.S. Neoria on 11.4.1982 at 9.30 a.m. and the same was registered as Crime No. 49. The investigation ensued. The investigation was taken up by Sub-Inspector Raghubir Singh, who was posted as S.O. Neoria. The Investigating Officer reached the spot and drew the inquest report and sent the body for post-mortem examination. 4. Dr. S.K. Manocha, Medical Officer, Civil Hospital, Pilibhi conducted the post-mortem examination on 12.4.1982 at 1.(10 p.m. Dr. Manocha has not been examined as a witness in this case. However, the post-mortem report discloses the following injuries on the person of the decreased Ante Mortem Injuries 1. Incised wound 5 em. X 1 cm. X bone deep on the right side of neck, 8 cm. below the right car root. 2. Incised wound 7cm. X bone deep on right side of neck 1 cm. below injury No. 1 Right side tracbes cut, 3. Incised wound 5 em. X 1 cm. X bone deep on the right side of neck, 8 cm. below the right car root. 2. Incised wound 7cm. X bone deep on right side of neck 1 cm. below injury No. 1 Right side tracbes cut, 3. Incised wound 4cm. X 6cm. on the left forearm medial side lower part. The internal examination revealed that the stomach was empty. Large intestines contained faecal matter. The doctor had opined that the death was caused by shock and hemorrhage due to antemortem injuries. 5. The appellant pleaded not guilty and claimed to be tried. 6. The support of its case, the prosecution examined three eye-witnesses, namely, Panni P.W. 2, Prahlad Kaviraj P.W. 3 and Sri Pad Mandal P.W. 4. The prosecution also examined informant Mahadev Mandal, father of the deceased as P.W. 1. The last witness is Sub-inspector Raghubir Singh, P.W. 5, the Investigating Officer of the case. 7. After considering the evidence on record, the learned Sessions Judge has convicted and sentenced the appellant, as has been mentioned above. 8. We have heard Sri P.N. Mishra, learned Amicus Curie, appearing for the appellant, in this appeal as well as learned State Counsel and have perused the record. In our opinion, the prosecution has succeeded in establishing its case regarding participation of the appellant in the present crime. P.Ws. Panni and Prahlad Kaviraj have deposed that at about 12 O'clock in the night they got upon hearing the alarm raised by the deceased Snit. Sati Rani. They further stated that they rushed to the house of the appellant and in the light of torch they saw that the appellant was holding a Katari with blood stains and his wife was lying dead. P.W. 4 Sri Pad Mandal has stated that he was sleeping and was amused from his sleep on the alarm raised by the deceased. He rushed to the house of the appellant and in the light of the torch he saw the appellant delivering Katari blows to his wife. 9. We arc not satisfied that Sri Pad Mandal would have been in a position to see, the actual assault by the appellant. Admittedly, he was sleeping at about mid night. He rushed to the house of the appellant and in the light of the torch he saw the appellant delivering Katari blows to his wife. 9. We arc not satisfied that Sri Pad Mandal would have been in a position to see, the actual assault by the appellant. Admittedly, he was sleeping at about mid night. We find that there are solitary three injuries which could he easily inflicted within lt) or 15 seconds by the time P.W. 4 Sri Pad Mandal was aroused from his deep slumber, picked up his torch and rushed to the house of the appellant, the whole assault must have been over. We are, however, inclined to accept the submission of the learned State Counsel to the extent that P.W. Sri Pad Mandal had reached immediately after the assault was over along with P.Ws. Prahlad Kaviraj and Panni and would have been in a position to see the appellant holding a blood stained Katari and the three witnesses would have been able to apprehend the appellant then and there. 10. The above three witnesses have no enmity with the appellant and in his statement the appellant has not given any reason as to why the above three witnesses were falsely implicating the appellant. 11. The learned Counsel has argued, on behalf of the appellant, that no blood was found on the clothes of the appellant. This circumstance alone does not indicate that there was no assault by the appellant because the appellant bad been arrested with a blood stained Katari immediately after the incident, the appellant has not offered any explanation as to how his wife met her death while he was holding blood stained Katari in his hand. The report of the Chemical Examiner shows that there were blood stains on the Katari, recovered from the appellant. 12. It has been next argued that the appellant did not offer any resistance and did not assault the witnesses who tried to arrest him. The appellant, who is a young man, was faced with larger number of witnesses who were trying to arrest him and he could be overpowered without resisting or causing injuries to the witnesses. In view of the above discussion, we are of the opinion that the prosecution has been successful in establishing that the appellant had assaulted his wife on the fateful night and was apprehended by the witnesses on the spot. In view of the above discussion, we are of the opinion that the prosecution has been successful in establishing that the appellant had assaulted his wife on the fateful night and was apprehended by the witnesses on the spot. 13. Lastly, it has been argued by Sri P.N. Mishra, learned Amicus Curiae, appearing on behalf of the appellant that the offence under Section 302 I.P.C. is not made out against the appellant. We find force in this submission of the learned Counsel. The evidence on the record shows that there was no previous ill will between the appellant and the deceased wife. The appellant was married about six years prior to the incident to Smt. Sati Rani. There is no whisper in the entire evidence that the husband and wife had any bad relations. It is also not the case of the prosecution that the present is a case of dowry death. There does not appear any such motive that the appellant may commit the murder of his wife. Even Mahadev Mandal, who is the father of Smt. Sati Rani, has not said a word regarding the cause and the motive behind the present crime. It appears that due to some sudden discord or quarrel between the appellant and his wife prompted the appellant to assault his wife. In the totality of the circumstances of the present case, we are unable to find that the appellant had intended to commit the murder of his wife. The learned Counsel for the appellant has drawn our attention to the reported case of Chilamkaur Nagireddy v. State of Andhra Pradesh, reported in 1977 Allahabad Criminal Cases, 281, wherein the Hon'ble Supreme Court was of the view that in the absence of a specific and definite opinion of the Doctor that the injury was fatal or sufficient in the ordinary course of nature to cause death no offence under Section 302 I.P.C. was spelled out. In ti,e case in hand the prosecution has taken the risk of not examining the doctor and merely relied upon the post-mortem examination report. In ti,e case in hand the prosecution has taken the risk of not examining the doctor and merely relied upon the post-mortem examination report. In the absence of conclusive medical opinion that the injuries inflicted by the appellant were sufficient in the ordinary course of nature to cause death, it could not be said that the offence would be covered by Section 300 (thirdly) I.P.C. A., has already been mentioned above, it appears that there was complete absence on any motive or intention to commit the murder and the unfortunate incident was an out conic be sonie sudden discord or quarrel between husband and the wife and was not a pre-inedited affairs. In Radha Krishna v. State of Harvana, A.I.R. 1987 S.C. page 768, the accused as well as the deceased had been seen exchanging heated arguments some time prior to the incident. It was observed by the Hon'ble Supreme Court : "For nearly three days the appellant was moving closely with Darya and if he had wanted to kill him, he would have dune so on the night of the 5th or 6th December in a lonely place in the forest area. Furthermore, there is evidence that the appellant, Antar Singh and Darya were engaged in sonic heated argument when they passed the land of P.W. 2 a few minutes before the occurrence." In the said case the Hon'ble Supreme Court held that the offence fell under Section 304 Part II I.P.C. even though it was a case where the death has been caused by gun shot. In the case in hand the appellant and his wife had been living cordially and there is nothing in the evidence to suggest that the appellant had any animosity towards his wife. We are of the opinion that the offence in the present case also falls within the mischief of Section 304 I.P.C. 14. The learned Counsel for the appellant had argued that lenient view may he taken. However, in the totality of the circumstances, we are of the opinion that a sentence of ten years' R.I. would meet the ends of justice. 15. In the result, the appeal is partly allowed. The learned Counsel for the appellant had argued that lenient view may he taken. However, in the totality of the circumstances, we are of the opinion that a sentence of ten years' R.I. would meet the ends of justice. 15. In the result, the appeal is partly allowed. The conviction of the appellant under Section 302 I.P.C and sentence of Imprisonment for Life thereunder is set aside and instead the appellant is convicted under Section 304 I.P.C. and sentenced to ten years' R.I. The appellant is already in jail and he shall serve out the sentence.