JUDGMENT 1. - The appellant has been convicted by the Special Judge, SC & ST Court, Kota by his judgment dated 16.11.1992 for the offence under Section 302 IPC and sentenced to life imprisonment and a fine of L 100/- and in default of payment of fine to undergo three months simple imprisonment. Against this conviction and sentence he has preferred this appeal. The appellant was married to the deceased Prembai about 10 years prior to the incident. They have two children. The incident is of 21.2.1990. For about five months prior to this date the husband and wife were not living together. Prembai was living with her parents, PW-2 Hukam Chand and PW-I Gulab Bai. It has come in evidence that the appellant used to beat his wife Prembai, therefore she had gone to her parents' house. 2. On the date of the incident i.e. 21.2.1990 at about 7.00 or 7.30 in the morning, the appellant came to the house of his in-laws where PW-2 Hukamchand was making tea and his wife Gulab Bai was standing in the chowk while Prembai was sweeping the room. The appellant went inside, had a talk with his wife Prembai and took out a knife and inflicted one injury on the nose and another on the abdomen. Hukamchand and Gulab bai shouted and some other persons of locality caught the appellant. Prembai was taken to the Hospital and she was operated upon. Her dying declaration was also recorded by the Additional Munsif and Judicial Magistrate No. 2 Kota. In this statement Ex.P/8 Prembai stated that she was living with her parents for quite sometime and on 21.2.1990 morning her husband Mahabir came there and asked her to accompany him. She said that she would like to take the consent of her parents. Upon this Mahabir took out a knife and made an attempt to cut her nose and then in knife blow on her abdomen on the left side and then gave another blow below the right eye and ran away. She also stated that when ever she lived with her husband he used to beat her. 3. The report of the incident was lodged by PW- 2 Hukam Chand, wherein he reported that Mahabir entered the room and without saying anything, with the intention of causing her death, inflicted a knife blow on the abdomen of Prembai and the wound started bleeding. 3. The report of the incident was lodged by PW- 2 Hukam Chand, wherein he reported that Mahabir entered the room and without saying anything, with the intention of causing her death, inflicted a knife blow on the abdomen of Prembai and the wound started bleeding. When he and his wife tried to save Prembai then the appellant gave a knife blow on the nose of Prembai and ran away. Then some persons of the locality collected there and Prembai was taken to the hospital in an auto rickshaw. This is the case of the prosecution and for proving the same PW-2 Hukam Chand and PW-1 Gulab Bai were produced. PW-3 Ashok Kumar is a neighbour who saw the appellant running away with a knife. The other evidence is about recovery of the knife on the basis of information given by the appellant to the SHO PW-8 Mohanlal. The knife is said to have been recovered from under a heap of stones. The witness PW-7 Phool Chand has turned hostile and not supported the recovery. It may be said that this part of the evidence about the recovery of knife does not appear to be reliable as according to the witnesses the appellant was caught while he was running after committing the offence and if that was so then the recovery of knife after four days would not be possible. However, we shall look into the material while discussing the arguments of the learned Counsel for the appellant and the learned Public Prosecutor. Here it may be mentioned that the accused in his statement under Section 313 Cr.P.C. has denied the incident and stated that his in-laws were annoyed with him and they did not send his wife Prembhai and their children with him. 4. According to the injury report of Prembai, which is Ex.P/5 she had the following injuries: "(1) Incised wound 1' " x ⅓" x ⅓" on right side nose OR shape cosmetic injury final report after 21 days. (2) Incised wound 3/4" x 1/2' x 9" deep above abdomen below costal margin right of Nipple medially." She died at about 6.00 p.m. on 22.2.1990 and on postmortem it was found that the 10th rib was cut, the plural was cut; the peritoneum was pierced, the intestines were repaired and were gangruous. The gallbladder had been removed and the liver and left kidney were repaired. The gallbladder had been removed and the liver and left kidney were repaired. In the opinion of the doctor the death was due to syncope as a result of stab injuries to the chest and abdomen. 5. The learned Counsel for the appellant has argued that the appellant had gone to the house of his in-laws in order to fetch his wife and it is not case wherein he had gone there with the intention of killing his wife. According to him the appellant was maintaining his two children when his wife had gone away to her parents house and in such circumstances he wanted to fetch her but as she was not prepared to come, he, in a fit of remorse attacked her and this cannot be said to be an intentional blow. It is contended that both Hukam Chand and Gulab Bai have stated that the appellant inflicted the blows on the deceased without saying a word but this fact is be belied by the dying declaration of the deceased who stated that the appellant wanted that she should go with him. It is also argued that the postmortem report says that the intestines were gangruous and this could also be a cause of death for which intention or knowledge cannot be attributed to the appellant and the case would not fall under Section 302 IPC. In support of this contention a number of cases have been relied upon 6. In Kesar dev v. State of Rajasthan (1992 Cr.L.R.(Raj.) 663) , there was altercation between the accused and the deceased over cutting of unripen branches of Khejri. Only one blow of knife was caused and the occurrence took place at the spur of moments. The conviction under Section 302 IPC was set aside and conviction was altered to Section 304, Part II IPC. 7. Only one blow of knife was caused and the occurrence took place at the spur of moments. The conviction under Section 302 IPC was set aside and conviction was altered to Section 304, Part II IPC. 7. In Randhir Singh v. State of Punjab ( AIR 1982 SC 55 ) when the altercation was between father of the appellant and the deceased and only one injury was caused, the conviction was altered from Section 302 IPC to Section 304, Part II IPC.In Phula v. State of Rajasthan (1990 Cr.L.R.(Raj.) 627) where death was due to a number of circumstances other than the injuries which were inflicted by the accused, it was stated that it was difficult to decide whether the appellant had the knowledge that he was likely by his act to cause death. When there was surgical manipulation and mishandling of the wound which caused infection then conviction under Section 302 IPC was set aside and the accused was convicted under Section 326 IPC.In Ukarda v. State of Raj. ( 1988(2) R.L.R. 817 ) the husband pressed the neck of his wife which resulted in death, when the wife wanted to go to her parents house, but the accused was not allowing her to do so. As there was no intention or predesign or premeditation to put her to death the offence held to be made out was under Section 304, Part II IPC.In Hari Ram v. State of Haryana ( AIR 1983 SC 185 ) , a single blow was dealt in heat of altercation and intention to kill was not apparent, the conviction was altered to Section 304, Para II I.P.C. Jaganunath v. State of Raj. (1987 (1I) R.L.R. 570) , is also a case of husband inflicting injuries on his wife as a result of which she died. There were as many as four injuries by knife. The incident occurred when the son reminded the father to take steps for the treatment of the mother and the accused resented the same. The accused was held guilty of the offence under Section 304, Part II IPC and not 302 IPC. 8. The learned Public Prosecutor has contended that the appellant in this case has inflicted two injuries and he had carried knife along with him when he had gone to his wife's place. The accused was held guilty of the offence under Section 304, Part II IPC and not 302 IPC. 8. The learned Public Prosecutor has contended that the appellant in this case has inflicted two injuries and he had carried knife along with him when he had gone to his wife's place. This shows that he had an intention of making use of it and it cannot be said that there was no premeditation for the commission of the crime.We have perused the record and considered the contentions raised on behalf of both the sides. From the evidence and the dying declaration of the deceased it is proved beyond doubt that the injuries to the deceased were caused by the appellant. The deceased herself has narrated so while PW-1 Gulab Bai and PW-2 Hukamchand have stated that the appellant entered the room where Prembai was sweeping and the accused gave knife blow on her pen. This part of the evidence stands proved and the only question is in what circumstances the injuries were caused and what offence would be made out on the basis of the same. Prembai has in her dying declaration stated that her husband asked her to accompany him, upon which she stated that the permission of the father and mother should be taken. The appellant want to fetch his wife and this was the intention with which he had gone there. His case would not fall under the first Clause to Section 300 IPC, but then the injuries inflicted by him can be said to be likely to cause the death of the person to whom harm is caused or he caused bodily injury which is sufficient in the ordinary course of nature to cause death. The question would then arise whether his act would fall under any of the exceptions to Section 300 IPC. Here is a man looking after his two children without assistance of his wile for five months and he wants that his wife should accompany him and stay with him. She might be having her own reasons for not staying with the appellant, but the appellant wanted that she should accompany him but Prembai wanted to take the permission of her parents. According to the statement of the appellant the parents were not sending her with the appellant and in the heat of moment he inflicted the injuries on the deceased. According to the statement of the appellant the parents were not sending her with the appellant and in the heat of moment he inflicted the injuries on the deceased. There was no premeditation but there was just a short quarrel. The frustrated man could not bear this. The evidence also shows that the appellant had come to the house of Hukam Chand in the nounal manner wishing his mother-in-law and father-in-law before meeting his wife. There was no immediate reason on account of which it could be said that he wanted to kill his wife. No doubt he had come with a knife in his pocket but it cannot be said that he had brought it with some motive. His intention was to take the deceased along with him and when he found that she was not prepared to take a decision by herself then in the heat of moment he inflicted the knife blows on her. One of them is simple injury while the other proved to be fatal. 9. The learned Counsel for the appellant has even tried to argue that the intestines had become gangruous and this could be the cause of death. In the long cross examination of the doctor such a suggestion was not made. Moreover, it cannot be said that gangrene was caused as a result of surgery and not as a result of the injury inflicted by the appellant. When the result of the chest blow was the cutting of rib, plura, lung and kidney then the appellant cannot claim that the cause of death was gangruous intestine or the negligence of the doctor. 10. In our view the death of the deceased was due to the injuries inflicted by the appellant and we are further of the view that the injuries were caused without premeditation in the heat of moment when the appellant found that the deceased was not willing to accompany him and wanted to consult her parents. The offence would fall under Execution IV of Section 300 IPC. As the appellant had not gone with the intention of killing his wife it can only he said that the act was done with knowledge that it was likely to cause death, and the offence would fall under Section 304, Part II IPC. 11. The appeal is partly allowed. The offence would fall under Execution IV of Section 300 IPC. As the appellant had not gone with the intention of killing his wife it can only he said that the act was done with knowledge that it was likely to cause death, and the offence would fall under Section 304, Part II IPC. 11. The appeal is partly allowed. The appellant is acquitted of the offence under Section 302 IPC and the sentence for this offence is set aside, but he is convicted for the offence under Section 304, Part II IPC and sentenced to imprisonment for five years and a fine of L 100/- and in default of payment of fine he shall undergo simple imprisonment for three months.Appeal Partly Allowed. *******