L. C. BHADOO, J. ( 1 ) THE accused/appellant has preferred this criminal appeal under Section 374 (2) of the Cr. P. C. being aggrieved by the judgment of conviction and sentence dated 11/01/1999, passed by the Sessions Judge, Raipur, in Sessions trial No. 198/1998, by which the learned sessions Judge after holding the accused appellant guilty of the offence under Section 302 of the I. P. C. sentenced him to undergo imprisonment for life. ( 2 ) THE prosecution case, in brief, is that on 25/03/1998, at about 4 p. m. , some altercation took place between the accused and his wife Usha, and the accused assaulted his wife with a wooden mallet (a wooden piece meant for washing clothes) of the size of 39. 5 cms. in length. As a result of the assault when Usha became unconscious, the accused went to Mohd. Moin (PW-5) at about 7 p. m. and requested him to examine his wife. The accused also informed him that as he had assaulted his wife she had become unconscious. On this, mohd. Main went to the house of the accused along with the accused and saw that the wife of the accused was lying on the ground covered with a bed sheet. On exam nation he found that the artery of Usha w as not pulsating. He therefore, advised the accused to take his wife to the hospital. T he accused brought a rickshaw and took his wife to the hospital. Dr. Abdul Hame'edmemon (PW-4) examined the wife of the accused and on examination he found that she had already died. The accused brought the dead body of his wife back to his house in the same rickshaw. On seeing the people standing outside the house of accused, Kajo habit Ur Rehman (PW-11) went to the house of the accused and there the people were talking among themselves that the accused has murdered his wife. ( 3 ) KAJI Habib Ur Rehman (PW-11) lodged a report Ex. P-17) at Police Statio, tikrapara. On his report, F. I. R. (Ex. P-18)was registered and the police took up. the investigation. The Panchanama of the dead body was prepared. The dead body was sent for post-mortem examination. Dr. Sanjay. Kumar Dadu (PW-8) conducted the postmortem examination on the dead body of usha on 26-03-98 at about 4 p. m. and prepared the post-mortem report (Ex. P-8 ). P-18)was registered and the police took up. the investigation. The Panchanama of the dead body was prepared. The dead body was sent for post-mortem examination. Dr. Sanjay. Kumar Dadu (PW-8) conducted the postmortem examination on the dead body of usha on 26-03-98 at about 4 p. m. and prepared the post-mortem report (Ex. P-8 ). The investigating Officer seized the clothes oi the deceased. The accused while in police custody gave memorandum (Ex. P-14) and in pursuance of that memorandum, the police seized the clothes of the accused and the weapon of offence i. e. wooden mallet, the police also seized the broken bangles of t he deceased under Ex. P-16. The seized. articles were sent for chemical examination to the Forensic Science Laboratory, Sagar (M. P.) from where the report (Ex. P-28) was received. After completion of the investigation, charge-sheet was filed against the accused/appellant. ( 4 ) THE learned Sessions Judge after hearing the arguments of the Public Prosecutor and the counsel for the accused, and after perusal of the record, was of the opinion that there was sufficient material on record to frame charge under Section 302 of the I. P. C. against the accused/appellant. Accordingly, he framed the charge against the accused/ appellant for commission of the offence under Section 302 of the I. P. C. and, read over and explained the same to him. The accused/appellant denied the charge and claimed to be tried. ( 5 ) THE prosecution in order to prove the charge against the accused/appellant examined in all fifteen witnesses. The statement of the accused under Section 313 of the Cr. P. C. was recorded by the learned Sessions judge. The accused denied the prosecution evidence and stated that he has been falsely implicated in the crime. He examined Jeevan rao Jachak (DW-1) in his defence. ( 6 ) THE learned Sessions Judge after hearing the arguments of the Public Prosecutor and the counsel for the accused, and after believing the prosecution evidence, convicted and sentenced the accused/appellant for the commission of the offence under Section 302 of the I. P. C. in the aforesaid manner. ( 7 ) WE have heard Shri Kishore Bhaduri, counsel for the accused/appellant and Shri p. S. Koshy, Govt. Advocate for the State/ respondent. ( 7 ) WE have heard Shri Kishore Bhaduri, counsel for the accused/appellant and Shri p. S. Koshy, Govt. Advocate for the State/ respondent. ( 8 ) AS far as the question of nature of the death of deceased Usha being homicidal is concerned, it is not disputed. Dr. Sanjay kumar Dadu (PW-8) has stated in his evdence that he conducted the post-mortem examination on the dead body of Usha on 26-3-98 and on examination he found in all 14 contusions on her body. Her 3rd to 5th ribs of right side and 4th to 6th ribs of left side were fractured; in the right thorax cavity 400 m. l. blood was present; and right lung was ruptured and contused. The doctor opined that the death of the deceased was due to shock and haemorrhage as a result of injury to thorax region. Other injuries were also present on the body. The doctor further opined that the injuries were caused b hard and blunt object and the death was homicidal in nature. In view of the above evidence, it is proved that the death of deceased Usha was homicidal in nature. ( 9 ) AS far as the involvement of the accused/appellant in causing the death of his own wife Usha is concerned, the learned counsel for the accused/appellant has not argued on this point. Gunjita Jachak (PW-3), aged about 8 years, is the daughter of the accused and the deceased. She was present in the house at the time of the incident and she has categorically stated in her evidence that her father and mother used to quarrel with each other. On the fateful day, when her father and mother quarrelled, her lather assaulted her mother with a wooden mallet and a brick. She further stated that she was present in the house when her father was assaulting her mother and her mother was asking not to beat her. She (PW-3) also requested her father not to beat her mother, but her father continued to beat her mother. Her father had beaten her mother from 1 p. m. to 7 p. m. Her mother received the injuries on neck and mandible. Blood was coming out of the injuries. When her mother became unconscious, her father called the doctor. She (PW-3) also requested her father not to beat her mother, but her father continued to beat her mother. Her father had beaten her mother from 1 p. m. to 7 p. m. Her mother received the injuries on neck and mandible. Blood was coming out of the injuries. When her mother became unconscious, her father called the doctor. The doctor advised her father to take Usha to hospital and thereafter her father took her mother in a rickshaw to the hospital. ( 10 ) MOHD. Moin (P. W. 5) who was working as Compounder in the Memon Nursing home has categorically stated in his evidence that on the fateful day i. e. 25th March, 1998, at about 7 p. m. when he was at his residence, the accused came and requested him to examine his wife. The accused also informed him that he had assaulted his wife and that is why she became unconscious. On his request, he went to the house of the accused and saw that the wife of the accused was lying on the ground covered with a bed sheet and on examination he found that she was already dead. He has further stated that on enquiry by him the accused confessed before him that by beating he has killed his wife. ( 11 ) MOHD. Shakeel Khan (P. W. 2) has also stated in his evidence that on the fateful day in the evening at about 7 p. m. when he was at his residence, Mohd. Moin (P. W. 5) came and informed him that the wife of the accused was lying in unconscious condition. Thereafter, he went to the house of the accused and saw that the wife of the accused was lying on the ground in unconscious condition. On the advise of Mohd. Moin, the accused brought a rickshaw and took his wife to the hospital. ( 12 ) PEELARAM (P. W. 1) has stated in his evidence that he has his own rickshaw and daily he used to take the daughters of the accused to school in his rickshaw. On the fateful day, in the evening on the request of the accused he went to his house and took his wife in the rickshaw to the hospital and thereafter, he also brought back the accused and his wife to the residence. On the fateful day, in the evening on the request of the accused he went to his house and took his wife in the rickshaw to the hospital and thereafter, he also brought back the accused and his wife to the residence. ( 13 ) IN the cross-examination of these witnesses (P. W. 1, PW 2, P. W. 3 and P. W. 5)the defence has not been able to elicit anything which makes the evidence of these witnesses doubtful or untrustworthy. ( 14 ) IN view of the above evidence, there is ample evidence on record, which shows that the accused assaulted his wife Usha with a wooden mallet. Gunjita Jachak (P. W. 3), who is the daughter of the accused, aged about 8 years, has categorically stated in her evidence that she saw her father assaulting her mother. She also tried to intervene and persuade her father not to beat her mother, but her father had not acceded to her request. There is no reason to disbelieve the evidence of this witness. Mohd. Moin (P. W. 5) who is a Compounder is an independent witness and he had seen and examined the wife of the accused and found that she was dead. He has stated in his evidence that the accused/appellant made extra-judicial confession before him, that he had beaten his wife that is why she had become unconscious. According to the postmortem report, in all 14 contusions were noticed by the doctor on the dead body. The evidence of Gunjita Jachak (P. W. 3) stands corroborated by the injuries found on the dead body of the deceased. Therefore, we are of the considered opinion that the learned Sessions Judge was right in holding that the accused has caused the death of his own wife by assaulting her with a wooden mallet and we do not find any infirmity or illegality in the said finding of the trial Court. ( 15 ) THE learned counsel for the accused/ appellant argued that in the facts and circumstances of the case, the offence of murder is not made out against the accused/ appellant and the offence does not travel beyond S. 304, Part II of the I. P. C. He placed reliance on the judgment of Madhya Pradesh high Court in the case of Gend Lal v. State of M. P. , reported in (2003) 1 MPLJ 46. ( 16 ) AS per the evidence of Gunjita Jachak (P. W. 3) she has stated that her father and mother used to quarrel with each other and on the fateful day also some quarrel took place between them and her father assaulted her mother with a wooden mallet (a wooden piece meant for washing clothes ). Dr. Sanjay kumar Dadu (P. W. 8) in his cross-examination in para 23 has stated that on examination of the injuries, he noticed that the intention of the person who assaulted the injuries was not to murder the deceased because, there were so many injuries on the dead body of the deceased and except injury No. 7, other injuries were not sufficient to cause the death. There is nothing in the prosecution evidence, which goes to show that there was any motive in the mind of the accused to cause the murder of his own wife. As per the evidence of Gunjita Jachak (P. W. 3), the accused and the deceased used to quarrel with each other and on the fateful day also some quarrel took place between them and the accused picked up a wooden mallet which is meant for washing clothes and assaulted the deceased with the wooden mallet which itself shows that during the course of some altercation and quarrel between the two, the accused all of a sudden picked up the wooden mallet and assaulted the deceased with the same. Therefore, in the above facts and circumstances of the case, it cannot be attributed to the accused that his intention was not to cause the death of his wife or his intention was to cause such injuries which were sufficient to cause death in the ordinary course of nature. However, looking to the nature of the injuries, as the ribs of the deceased were fractured, it can safely be inferred and attributed to the knowledge of the accused that he had the knowledge that by causing such injuries he might cause the death of his wife. Therefore, offence under S. 304, Part II of the I. P. C. is made out. ( 17 ) IN the result, the appeal of the appellant partly succeeds and the same is partly allowed. The conviction and sentence of the accused/appellant under S. 302 of the I. P. C. are set aside and he is acquitted of the said offence. Therefore, offence under S. 304, Part II of the I. P. C. is made out. ( 17 ) IN the result, the appeal of the appellant partly succeeds and the same is partly allowed. The conviction and sentence of the accused/appellant under S. 302 of the I. P. C. are set aside and he is acquitted of the said offence. However, instead of that, the accused/appellant is convicted under S. 304, Part II of the I. P. C. and sentenced to undergo rigorous imprisonment for six years. Order accordingly. --- *** ---