JUDGMENT 1. - This appeal isdirected against the judgment dated 31-7-87, passed by the Additional District and Sessions Judge, Barmer, by which the learned Additional Sessions Judge convicted the (accused-appellant for the offence under Section 302 Indian Penal Code and sentenced him to undergo imprisonment for life and a fine of Rs. 100/- and in default of payment of fine further to undergo six months' rigorous imprisonment. 2. The appellant was tried by the learned Additional Sessions Judge, Barmer, for committing the murder of his wife Smt. Andar on 1-9-86 at 2.00 a.m. in his own house situated in village Hathma. The case of the prosecution is that Bagh Singh went to his in-laws' house in village Hathma (district Barmer) to bring his wife Smt. Annu as well as his sister Smt. Andar, who was married to accused Pappu Singh. Accused Pappu Singh's sister Annu was married to Bagh Singh and Bagh Singh's sister Andar was married to the accused. He had gone to village Hathma to bring both these ladies as his father was ill. He reached village Hathma by the last bus and requested accused Pappu Singh to send Smt. Andar and Smt. Annu, but Pappu Singh refused to send his wife Smt. Andar with Bagh Singh. They were talking together and at about 1.00 a.m. in the night, they went to sleep. At about 2.00 a.m., he heard the cries of his sister Smt. Andar. He and Sujan Singh alongwith Mohan Singh went running there. When they entered in the room, they saw the accused carrying a Kulhari and inflicting injury by it on his sister Smt. Andar, who was sleeping on a cot. Smt. Andar, succumbed to the injuries. When they took care of Smt. Andar, they found her having injuries on her nose, both the hands and the neck. The accused, after inflicting the injuries, ran away. Rugga followed the accused, caught hold of him and brought him to the village. The accused confessed his guilt before the Panchas. The prosecution, in support of its case, examined sixteen witnesses. The accused did not examine any witness in defence. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused- appellant as stated at the very out-set. 3. It is not in dispute that Smt. Andar died an unnatural death. From the evidence of PW 1 Dr. The prosecution, in support of its case, examined sixteen witnesses. The accused did not examine any witness in defence. The learned Additional Sessions Judge, after trial, convicted and sentenced the accused- appellant as stated at the very out-set. 3. It is not in dispute that Smt. Andar died an unnatural death. From the evidence of PW 1 Dr. Anil Kumar and the evidence of the other eye-witnesses, it has been established beyond reasonable manner of doubt that Smt. Andar died an unnatural death and the cause of her death was the injuries inflicted on her neck by the Kulhari. 4. The question, which requires consideration, is : who is the perpetrator of the crime : whether it was the accused-appellant who committed the murder of his wife Smt. Andar or it was some other person who committed her murder and the accused has been falsely implicated in the crime ? The prosecution, in support of its case, examined number of eye-witnesses, viz., PW 5 Bagh Singh, PW 7 Smt. Annu and the brothers of the accused and the other inmates of the house, namely, PW 6 Rukma, PW 8 Jabbar Singh, PW 9 Sujan Singh and PW 10 Mohan Singh. Except PW 5 Bagh Singh and PW 7 Smt. Annu, the other witnesses, who are the relatives of the accused-appellants, have not supported the prosecution case and they were declared hostile. The other set of evidence, produced by the prosecution, consists of the statement of PW 15 Ruga Ram, who followed the accused, caught hold of him and brought him to the village. PW 11 Sardar Singh and PW 12 Bhikh Singh are the witnesses, before whom the accused confessed his guilt. These witnesses, before whom the alleged extrajudicial confession was made by the accused, have not supported the prosecution case and they were declared hostile. There, therefore, remains the evidence of PW 5 Bagh Singh and PW 7 Smt. Annu. The defence of the accused, as stated in his statement recorded under Section 313 Cr. P.C., is that he went inside the room where deceased Smt Andar was sleeping and tried to have cohabitation with his wife but she refused to cooperate and asked him to go and sleep with his mother, which enraged him. 5. The defence of the accused, as stated in his statement recorded under Section 313 Cr. P.C., is that he went inside the room where deceased Smt Andar was sleeping and tried to have cohabitation with his wife but she refused to cooperate and asked him to go and sleep with his mother, which enraged him. 5. The case of the prosecution, therefore, rests upon the statement of PW 5 Bagh Singh and PW 7 Smt. Annu - the sister of the accused. PW 5 Bagh Singh has stated that his father's condition was serious and he had gone to his in-laws house to bring his wife Smt. Annu and sister Smt. Andar. He went to village Hathma by the last bus and requested accused Pappu Singh to send Smt. Annu and Smt. Andar with him. The accused agreed to send Smt. Annu but refused to send Smt. Andar. They continued talking upto 1.00 a.m. and thereafter went to sleep. At about 1.30 a.m. he heard the tries of his sister Smt. Andar whereupon he went inside the Court-yeard and saw the accused armed with the Kulhari and inflicting injuries on the neck and other parts of the body of Smt. Andar. He ran towards his sister whereas Sujan Singh and Mohan Singh caught-hold the accused. In the meanwhile Ishwar Singh, also, came there. His mother-in-law, father-in-law and brothers-in-law were, also, present there. Sometime thereafter accused Pappu Singh rescued himself and ran away. The persons, who were present there, followed the accused and Rugha caught-hold of the accused and brought him to the village and the accused confessed his guilt before the Panchas. Certain recoveries etc. were, also, made in his presence. A lengthy cross-examination has been conducted with this witness but his evidence remained unshaken and nothing could be elicited in his cross-examination which could make his evidence unreliable. He had gone to village Hathma, where his in-laws members live, and his presence there was most natural and it is not the defence case that this witness was not present in the house of the accused at the relevant time. 6. PW 7 Smt. Annu, who is the sister of the accused and the wife of PW 5 Bagh Singh, has stated that she was in her parents house situated in village Hathma at the relevant time. Her husband (PW 5 Bagh Singh) had, also, come there on that day. 6. PW 7 Smt. Annu, who is the sister of the accused and the wife of PW 5 Bagh Singh, has stated that she was in her parents house situated in village Hathma at the relevant time. Her husband (PW 5 Bagh Singh) had, also, come there on that day. Her sister-in- law (Nanad) was, also, there. Her husband came to village Hathma to take her and her sister-in-law Smt. Andar. She was sleeping in the night. At about 12.00 (zero hour) in the night, she heard the cries. Her husband got up and went there. She followed her husband Bagh Singh and saw the accused armed with the Kulhari in the Court-yard. By that time, Smt. Andar was dead. Accused Pappu Singh tried to run away but he was caught-hold. In the cross-examination, she has admitted that there was no lamp at the place of the incident. During the cross-examination, nothing could be elicited which could make her testimony unreliable. 7. From the evidence of these two witnesses, it has, therefore, been established that the accused was the perpetrator of the crime, who inflicted injuries to deceased Smt. Andar by the Kulhari and the deceased, after receiving the injuries, died instantaneously. 8. The next question, which requires consideration, is: what offence has been committed by the accused-appellant? It is, no doubt, true that it was the accused-appellant who inflicted injuries by the Kulhari to deceased Smt. Andar. The deceased was the wife of the accused. The relations between them were very cordial. He never wanted to send his wife with his brother-in-law but the deceased might have forced him to send her with her brother Bagh Singh and that might be the bone of contention between the accused and the deceased. In his statement recorded under Section 313 Criminal Procedure Code, the accused has stated that the deceased refused to cohabit with him, and asked him to go and sleep with his mother. This infuriated him and- under the fits of grave and sudden provocation, he inflicted injuries by the Kulhari on the person of the deceased. The appellant had no intention to kill his wife because the relations between the husband and the wife were cordial and his likings towards her was so much that he was not ready to send her for some days to her parental house. The appellant had no intention to kill his wife because the relations between the husband and the wife were cordial and his likings towards her was so much that he was not ready to send her for some days to her parental house. Therefore, it is a case of culpable homicide not amount to murder and the appellant can be convicted for the offence under Section 304 Part-I, Indian Penal Code and as such his conviction is altered from Section 302 to Section 304 Part-I, Indian Penal Code. 9. In the result, the appeal, filed by accused-appellant Pappu Singh, is partly allowed. His conviction and sentence for the offence under Section 302 Indian Penal Code, passed by the learned Additional Sessions Judge, Barmer, are set aside. However, the appellant is convicted for the offence under Section 304 Part-I, Indian Penal Code and is sentenced to undergo seven years' rigorous imprisonment and a fine of Rs. 100/- (Rs. one hundred) and in default of payment of fine further to undergo fifteen days' rigorous imprisonment. 10. The appellant is in Jail. The period of detention undergone by the appellant during investigation, enquiry or trial shall be set-off against the term of sentence imposed against him. The appellant is in the custody since 02.9.1986 and if it is so then he has undergone the sentence imposed upon him and he shall be released forthwith if not required in any other case.Appeal partly allowed. *******