JUDGMENT 1. - This appeal has been preferred against the Judgment dated 3.8.1988 passed by learned Additional Sessions Judge, Beawar, whereby he convicted the appellant for the offences Under section 302 Indian Penal Code and sentenced her to life imprisonment and imposed a fine of Rs. 500/-. In default of payment of fine she was further directed to undergo R.I. for one year. He also held the appellant guilty for the offence Under section 201 Indian Penal Code and sentenced her to two years R.I. and a fine of Rs. 200/- and in default of payment of fine R.I. for six months. 2. Briefly, the relevant facts are that the appellant-Tulsi was married to deceased Devi Singh. The deceased was living separately from his brothers and there was some dispute regarding their ancestral land. It is alleged that the deceased Devi Singh after consuming liquor used to quarrel with the appellant. He also used to maltreat and harass her. It is the case of the prosecution that on or about 20.1.1988 appellant Smt. Tulsi committed murder of her husband-Devi Singh by inflicting injuries to him by a `Katari', that thereafter she buried his dead body a room situated in the house and thus caused disappearance of the evidence of the said offence. On 26.1.1988, she lodged a report in Police Station, Beawar to the effect that on 20.8.1988 at about 7.00 PM. her husband Devi Singh had left his house, saying that he was going to the octroi post and at that time he was having Rs. 350/- with him but thereafter he did not return. She also reported that despite search made by her Devi Singh's whereabouts could not be known. She further reported that Devi Singh was putting on a brown coloured Bushirt, white Dhoti, RT. Shoes and sky blue socks. The police recorded the said report Ex.P 2 in the daily diary (Ex.P 21). On 30.1.88, PW-1 Mithu Singh, brother of the deceased, submitted a written report (Ex.P 1) at police station Sadar, Beawar to the effect that his brother Devi Singh was missing since 20.1.88, that Ram Singh (PW 8) had informed him that Smt. Tulsi was weeping in her husband and that she had asked him to make search of her husband in wells and `Bavris' including `Tikranawali Bavri'. Mithu Singh also mentioned in his written report that thereupon his mother Smt. Keshi, brother Kishna and others went to the said well, where they noticed shoes lying therein. On 30.1.88 in the morning he alongwith his brother went to the said well, it was a dry well and wherein they noticed a pair of shoes and some clothes, that thereupon they enquired from Smt. Tulsi as to from whom she could know about the fact that pair of shoes and the clothes were lying inside that well, to which she replied that some kids had told her about the sdme. Mithu Singh further mentioned in his report Ex.P 1 that when he went inside a vacant room of her house and found that that the floor of that room was raised. Thereupon he dugg its floor and noticed a 'knee' of a dead body. He also noticed foul odour emanating from the dead body. He informed about this to his brother-Kishna. Mithu Singh also mentioned in report Ex.D 1 deceased Devi Singh used to quarrel with his wife Tulsi and who after committing his murder had buried his dead body there. 3. PW-10 Ratan Singh ASI drew FIR Ex.P 2 rushed to the house of the appellant, where in presence of PW-5 - Mahesh Narayan, Tehsildar and motbirs, the dead body of Devi Singh was taken out by digging the floor of that room and Panchayat nama (Ex.P 3) and Site Plan (Ex.P. 4) was drawn. The Investigation Officer lifted the blood stained soil and control sample. He also noticed blood stains on a `Niwar' of a cot lying in another room of appellant's house. The wall of the room was also found stained with blood. The Investigating Officer took the blood stained lime by scratching the wall, and seized the blood stained `Niwar' of the cot and `Gudra'. It is alleged that the appellant was putting on a yellow `odhana' and a `ghaghara' (skirt) having blood stains, which were also seized vide Seizure Memo Ex.P 13. It is the case of the prosecution that the appellant in pursuance to her disclosure statement (Ex.P 19) got recovered a blood stained Katari concealed underneath slabs from her house vide recovery memo Ex.P 16. A spade was also recovered at her instance from her house vide recovery memo Ex.P 22, a spade in her house (Ex.P 22). 4. It is the case of the prosecution that the appellant in pursuance to her disclosure statement (Ex.P 19) got recovered a blood stained Katari concealed underneath slabs from her house vide recovery memo Ex.P 16. A spade was also recovered at her instance from her house vide recovery memo Ex.P 22, a spade in her house (Ex.P 22). 4. A medical board including Dr. R.K. Garg, PW-9, and conducted post mortem examination of dead body of Devi Singh and as per post mortem report Ex.P 19 found the following injuries : (1) A large gap of 5" x 2" involving the soft tissues in the mandibular and maxillary area of the left side of the face. (2) A skin gap of 1-.5" x 1.5" x 2" on the lateral aspect of the left side of the neck in its middle ⅓rd lying deep towards the carotid vessels which were cut. It was a de-composed body having blisters. I here was peeled skin an over the body. Both the eye sockets were shrunken and empty and eye balls were not present. Maggots were present at various places of the body. The scalp was peeled off over the skull except on the left side. The brain matter and membranes were liquified and shrunken to nearly ⅓rd size. The left carotid vessels had been cut in the middle ⅓rd of the neck. Other visceras were decomposed, shrunken and black in colour. The Board opined that the cause of death was due to trauma to large carotid vessels and that the duration of death was 4 to 10 days. 5. The seized packets of the blood smeared soil, dhoti of the deceased, pieces of black `Niwar', blood smeared `chuna' (lime), gudhra, underwear, baniyan and T-shirt of the deceased, odhna and ghaghara of the appellant and the blood stained `Katari' as also the control samples of soil and lime were sent to the State Forensic Science Laboratory. The Assistant Director, (Serum), State FSL vide his report Ex.C. 1 opined that blood could not be detected on the odhna of the appellant while her `Ghaghara' and all other blood smeared articles were stained with human blood and that the blood smeared soil, dhoti, pieces of plastic Niwar, blood smeared lime, 'gudra', underwear, baniyan, RT. Shoes and T.shirt of the deceased and the Katari' were stained with `B' Group blood. Shoes and T.shirt of the deceased and the Katari' were stained with `B' Group blood. However the blood group of the stains on the Ghaghra of the appellant could not be determined to due to disintegration. 6. After completion of the investigation the police submitted challan before the Additional Chief Judicial Magistrate, Beawar, who in turn committed the case to the learned trial Judge. 7. The appellant was charged for offences Under sections 302 and 201 Indian Penal Code. She denied the indictment and claimed trial. To prove its case the prosecution examined as many as 13 witnesses. The appellant in her plea recorded Under section 313 Criminal Procedure Code denied all the circumstances appearing against her in the prosecution evidence and asserted that she neither gave any information nor got recovered the katari and the spade. She also denied that her husband used to quarrel with her after consuming liquor. She stated that PWs Mithu Singh & Kishna Singh used to quarrel with her husband because they had sold the agricultural land of the share of her husband to someone- else. She pleaded ignorance about the presence of the blood stains on the walls of her room and Niwar' of the cot. However, she stated that since she had sustained an injury on her leg, her 'ghaghra' got stained with blood. She asserted that she has been falsely implicated. She examined two witnesses in her defence. After trial, the learned Sessions Judge, by his impugned Judgment convicted and sentenced the appellant in the manner indicated above. Hence this appeal. 8. We have heard Shri N.C. Chaudhary the learned counsel for the appellant and Shri MJ_. Goyal the learned Public Prosecutor at length and carefully perused the record of the trial court in extenso. 9. At the very outset, Shri N.C. Chaudhary submits that he does not challenge the factum of the alleged incident and conviction of the appellant but he has strenuously urged that in this case from the prosecution evidence of stands firmly established that deceased Devi Singh after consuming liquor used to beat the appellant and quarrel with her. It transpires that on-the ill fated day due to the cruel behaviour of the deceased, she suddenly got enraged and on the spur of the moment she inflicted only one injury by a `katari' on his mandibular and maxillary region cutting the vessels of carotid. It transpires that on-the ill fated day due to the cruel behaviour of the deceased, she suddenly got enraged and on the spur of the moment she inflicted only one injury by a `katari' on his mandibular and maxillary region cutting the vessels of carotid. Thus it appears that the appellant did not have any intention to commit the murder of her husband but simply had the knowledge that by inflicting `katari' blow, she was likely to cause his death and as such the offence committed by her does not travel beyond the offence Under section 304 Part II Indian Penal Code. Shri Chaudhary has further contended that the appellant was arrested on 30.1.88 and since then she has been continuously under detention and has already undergone sentence for a period of 8 years 9 months and 8 days till date and therefore her sentence be reduced to the period undergone by her. 10. The learned Public Prosecutor has however supported the impugned judgment and reiterated the reasonings given by the learned trial Judge. As regards the injuries; the learned Public Prosecutor has also stated that as per the statement of PW-9 Dr. R.K. Garg he was not in a position to say as to whether injury No. 1 i.e. gap of 5" x 2" involving the soft tissues in the mandibular and maxillary area of the left side of the face of the deceased was ante-mortem or post-mortem. 11. We have given our thoughtful consideration to the rival submissions PW-1 Mithu Singh - brother of the deceased, PW-2 Bhim Singh, PW-3 Nathu Singh & PW-6 Kishan Singh have deposed that deceased-Devi Singh used to quarrel with the appellant after consuming liquor. The appellant was married to the deceased about eight years prior to the alleged incident. There is no direct evidence about the alleged incident and case hinges on circumstantial evidence. 12. PW 9 Dr. R.K. Garg has stated that he could not say as to whether injury No. 1 of post mortem report (Ex.P 19) was ante mortem in nature or not. The alleged incident took place on or about 20.1.88 whereas the post mortem examination was conducted on 30.1.88 and by that time the dead-body had became decomposed. From the prosecution evidence it is manifest that a blood stained `katari' was recovered at the instance of the appellant. The alleged incident took place on or about 20.1.88 whereas the post mortem examination was conducted on 30.1.88 and by that time the dead-body had became decomposed. From the prosecution evidence it is manifest that a blood stained `katari' was recovered at the instance of the appellant. The blood stained soil taken from the floor of the room from where the dead-body of the deceased was taken out, the sample of blood stained lime (chuna) scratched from the walls of another room of the appellant's house and the blood stained plastic `Niwar' of the cot, were found stains with human blood having `B' Group as per FSL report. The extra judicial confession alleged to have been made by the appellant before PW 6 Kishan Singh and Dhanna Singh stand well proved. Both these witnesses have stated that the appellant had made an extra judicial confession before them and informed that her husband Devi Singh used to quarrel with her after taking liquor and after killing him, she had burried his dead body. Therefore, from the evidence recorded in this case, it is firmly established that the appellant had inflicted injury No. 1 by Katari by which the large vessels of the carotid were cut, which proved fatal. As regard the first injury detailed in the post mortem report (Ex.P 19) it cannot be conclusively said that it was inflicted by the appellant, because PW 9 Dr. R.K. Garg has specifically stated that he cannot say as to whether this injury was ante mortem or post mortem in nature. In such circumstances, it appears that on the ill fated day the deceased after consuming liquor quarrelled with the appellant, that she suddenly got enraged and on the spur of moment, she inflicted a `katari' blow on the neck of the deceased, which proved fatal. However, she did not give another blow. Thus, it transpires that she had no intention to commit the murder of her husband but positively she had an intention to commit such an injury on the neck of the deceased, which was likely to cause death. Therefore, keeping in view all the facts and circumstances of the case, we are of the considered opinion that the prosecution has failed to successfully bring home the offence Under section 302 Indian Penal Code against the appellant. Therefore, keeping in view all the facts and circumstances of the case, we are of the considered opinion that the prosecution has failed to successfully bring home the offence Under section 302 Indian Penal Code against the appellant. However the offence committed by the appellant amounts to homicide not amounting to murder which is punishable Under section 304 Part-1 Indian Penal Code. The appellant has-been under detention since 30.1.88 and till this date she has suffered sentence for a period of eight years nine months and eight days. To our mind, period of sentence already undergone will be sufficient to meet the ends of justice. 13. In the result, we partly allow this appeal and set-aside the conviction and sentence of the appellant-Smt. Tulsi for the offence Under section 302 Indian Penal Code but convict her for the offence Under section 304 Part I Indian Penal Code and sentence her of the period already undergone by her with a fine of Rs. 100/- (Rupees one hundred only) failing which she shall further undergo sentence for a period of 15 (fifteen) days. Her sentence and conviction for the offence Under section 201 Indian Penal Code are hereby maintained and she has already undergone the sentence on this count. The appellant-Smt. Tulsi be released forthwith, if not required in any other case. The appellant through the Superintendent, Central Jail, Jaipur be informed accordingly.Appeal Partly Allowed. *******