JUDGMENT 1. - The accused stands convicted by the learned Additional Sessions Judge, Jhalawar, Camp Aklera (Raj.) under the judgment dated 27th November, 1992, under Section 302 Indian Penal Code and has been sentenced to undergo imprisonment tor life and to pay a fine of Rs. 500/- (in default, further to suffer two months rigorous imprisonment). 2. Deceased-Roopa Bai was the wife of the accused appellant, she was aged about 65 years and was blind. The accused appellant is also an old person, and is also aged 65 yeas. He is also handicapped as it appears from the arrest memo - Ex.P. 10 wherein it has been Stated that there is thinning of the right leg from the knee upto the ankle. The accused appellant alongwith his wife (deceased-Roopa Bai) and his sons and other members of his family used to reside in village Nana Khera under Police Station-Ghatoli, Distt. Jhalawar. 3. The case of the prosecution is that deceased-Roopa Bai was of old age and being handicapped there was quarrel between the accused appellant and his wife deceased-Roopa Bai, who, as said earlier, was blind. On 27.12.1991 being a Friday, there was some quarrel between the accused appellant and the deceased (wife of the appellant) and the accused is said to have told his wife-Roopa Bai (deceased) that she being blind was unable to cook food for him and he has not been provided the food in time and is dependent on others. The deceased also said that both are unlucky. There was some quarrel between them on this issue and it is alleged that the accused appellant took an axe and gave a blow on the neck of deceased-Roopa Bai, as a result of which died. A report of the incident was lodged on the same day at 5.00 p.m. by Amar Singh (PW - 1), the son of the accused appellant. A case was registered and after investigation, a charge-sheet was filed against the accused. The accused pleaded not guilty and came out with the case that he has been falsely implicated by his sons. The learned Additional Sessions Judge convicted and sentenced the accused appellant as indicated above. 4. Two fold contentions have been raised by the learned Amicus Curiae appearing for the accused appellant. The accused pleaded not guilty and came out with the case that he has been falsely implicated by his sons. The learned Additional Sessions Judge convicted and sentenced the accused appellant as indicated above. 4. Two fold contentions have been raised by the learned Amicus Curiae appearing for the accused appellant. He contended that there is no direct evidence to connect the accused with crime and secondly if assuming there is some evidence by which the accused is held to be responsible for causing the death of his wife, in the facts and circumstances of this case, the case does not travel beyond Section 304-11 of the Indian Penal Code. 5. It will be seen from the record and the judgment of the learned trial Court that two sons of the accused appellant, namely, Amar Singh (PW - 1.) and Lal Singh (PW - 2) did not support the prosecution story and have been later on declared hostile and the Public Prosecutor put to them questions in the nature of cross-examination. Both of them have Stated that the occurrence had not taken place in their presence. Amar Singh (PW 1) stated that when he returned back to his house, the incident was narrated to him by Ratan Gujar and then he lodged the report. Ratan Gujar did not appear in witness box. Lal Singh (PW 2) has stated that he was not at the house when the incident has taken place and Dhuli Bai (PW 3), his wife, narrated the incident when he returned to the house in the afternoon. He saw his mother lying dead. But, despite the fact that above two sons of the accused appellant have not supported the case of the prosecution, the statement of Dhuli Bai (PW 3) who is the daughter-in-law of the accused appellant and the wife of Lal Singh (PW 2), has to be examined. 6. Dhuli Bai (PW 3) being a lady was present at the house when the incident took place and she has stated that her mother-in-law was blind and her father-in-law used to quarrel with her mother-in-law as well as with her. She states that she had witnessed the occurrence. 6. Dhuli Bai (PW 3) being a lady was present at the house when the incident took place and she has stated that her mother-in-law was blind and her father-in-law used to quarrel with her mother-in-law as well as with her. She states that she had witnessed the occurrence. She was at her own house, at some distance and according to her she was attracted to see the occurrence and when she reached the spot, she saw that the accused appellant was armed with an axe which was having blood stains and her mother-in-law was lying in a pool of blood and she was dead. There is no reason to disbelieve her statement and it can be said that even in her statement it has clearly come out that it was the accused who caused injury to his wife as a result of which she died. 7. Learned counsel contended that even as per the case of the prosecution and the statement of Smt. Dhuli Bai (PW 3) there was some quarrel between the accused appellant and the deceased (wife of accused appellant) and then the occurrence look place. The accused picked up the axe and gave a blow and as per the statement of the doctor the possibility is that the second injury was the result of the first blow, cannot be excluded. He, therefore, contended that in the facts of this case, it can be said that there was no intention to cause the death and the offence is one of 304 part II of the Indian Penal Code We are of the opinion that the case falls under Section 304(I) and as such it is an offence falls for punishment for culpable homicide not amounting to murder, but we are unable to agree with the learned counsel that it is a case falls under Section 304 part II of the Indian Penal Code In the facts of the case, we are of the opinion that the case falls under part I of Section 304 of the Indian Penal Code We have already said that the accused can be said to have inflicted only one injury and the doctor has not said that that injury was sufficient in the ordinary course of nature to cause death. The case, in our opinion, does not fall under part II of Section 304 of the Indian Penal Code 8. The case, in our opinion, does not fall under part II of Section 304 of the Indian Penal Code 8. Consequently, we hereby partly allow this appeal, alter die conviction of the accused appellant from Section 302, Indian Penal Code, to Section 304 part I of the Indian Penal Code, and the accused appellant is sentenced to undergo three years rigorous imprisonment. The accused will be entitled to get benefit of Section 428 of the Criminal Procedure Code. *******