P. S. NARAYANA, J. ( 1 ) HEARD Sri Bomminayuni Apparao, the counsel representing the appellant provided by Legal Aid and the learned Additional public Prosecutor Mohd. Osman Shaheed. ( 2 ) SRI Bomminayuni Apparao, learned counsel for the appellant would contend that the version of the prosecution is that this is a quarrel between wife and husband and the wife was axed to death by M. O. 5. The learned counsel also further would contend that there is no direct evidence, but only on the strength of the circumstantial evidence, which would not prove the guilt of the accused beyond all reasonable doubt, the accused had been convicted. The learned counsel also further pointed out that at any rate the accused is aged more than 70 years and in view of the facts and circumstances, the quantum of sentence imposed, definitely is highly excessive. ( 3 ) ON the contrary, learned Additional public Prosecutor would contend that there is clear substantial evidence as deposed by p. Ws. 1, 2 and also P. W. 3 Panch for the scene of offence. P. W. 4 Panch relating to recovery and P. W. 5 Panch for confession in relation to recovery and the medical evidence also would clearly corroborate the evidence of P. Ws. 1 and 2 and hence, the conviction and sentence are well justified. ( 4 ) HEARD both the counsel. ( 5 ) THE case of the prosecution is that the deceased Annapurnamma is the wife of the appellant-accused and since two years prior to the offence, there were no cordial terms and they were quarrelling even on petty matters and being fed up with the attitude of the appellant-accused, deceased-wife- annapurnamma had been living with her son at Lalapet, Hyderabad and now and then she was coming to Masaipet village where the accused was residing and even then the accused was picking up quarrels with her and forcing her to stay with him, but she was not acceptable for the same. ( 6 ) IT is also the version of the prosecution that on 06-02-1998 Annapurnamma went to masaipet, during morning hours to inform her husband and her relations that she was going to perform Cradle Ceremony of her grand-daughter at Lalapet. At about 9 a. m. on that day they quarreled with each other and it was tried to be pacified by neighbours viz. At about 9 a. m. on that day they quarreled with each other and it was tried to be pacified by neighbours viz. , P. W. 1 -Smt. Veeravelli Andamma and p. W. 2-Smt. Boorujukindi Manemma. After a little while, there was complete silence. Having become suspicious, P. Ws. 1 and 2 have gone to the house of accused around mid-day and found that Annapurnamma was axed to death and she was in a pool of blood. They went to the Sarpanch Smt. Gottiparthi Jayamma-P. W. 7 and informed the incident and she in turn lodged report ex. P-6. ( 7 ) ON 07-02-1998 at about 4 p. m. accused went to the place of Vemula ravinderp. W. 9, President of Mandala praja Parishad, Yadagirigutta Mandal, and when he was in his office, the accused was discussing something with Saboori Narsaiah p. W. 4 and Gawala Pochaiah P. W. 5 and confessed to have committed the offence. P. W. 9 handed over the accused to the police whose police station is in the next door and they have recorded confessional statement of accused in the presence of p. Ws. 4 and 5 in Ex. P-3 and in pursuance of his confessional statement, recovered an axe M. O. 5 under Ex. P-4 panchanama from backside of the house of accused. After completion of investigation, charge-sheet has been filed. ( 8 ) THE matter was committed to the Court of Session and the learned Sessions Judge had tried Sessions Case No. 320 of 1998 and on appreciation of the evidence of p. Ws. 1 to 12. Exs. P-1 to P-7 and M. Os. 1 to 5, came to the conclusion that the accused is found guilty of an offence punishable under Section 304 Part IIPC and sentenced him to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. 100/- , in default to suffer simple imprisonment for a period of fifteen days. ( 9 ) P. WS. 1 and 2 had deposed what happened on the date of offence at about 8 a. m. P. W. 2 also deposed that when they were quarrelling, she advised them not to quarrel since they are having grown up children. 100/- , in default to suffer simple imprisonment for a period of fifteen days. ( 9 ) P. WS. 1 and 2 had deposed what happened on the date of offence at about 8 a. m. P. W. 2 also deposed that when they were quarrelling, she advised them not to quarrel since they are having grown up children. P. W. 2 is the witness who had gone to the house of the accused as there was some commotion and on opening the door, she found Annapurnamma, inside the house, in a pool of blood and then she shifted and got the attention of the neighbours. On hearing the same, P. W. 2 also reached the spot and there was an axe injury on her neck and right hand fingers. This was informed to the Sarpanch of the village-P. W. 7. P. W. 7 also had deposed about the other aspects P. W. 9 surrendered the accused. P. Ws. 10 to 12 are the investigating Officers who had deposed about the details of investigation. P. Ws. 3,4 and 5 are the panch witnesses in relation to the scene of offence and also to the confession and recovery. M. 0. 5 is the axe, m. O. 1 is the bloodstained urea bag. M. O. 2 is the bloodstained blouse of annapurnamma, M. O. 3 is the bloodstained red saree, M. O. 4 is the blood stained red blouse. Ex. P-1 is the Scene of Offence panchanama, Ex. P-2 is the Inquest panchanama, Ex. P-3 is the Confession panchanama (to the extent of admissible portion), Ex. P-4 is the Recovery panchanama, Ex. P-5 is the Post-mortem examination Report, Ex. P-6 is the Original complaint and Ex. P-7 is the First Information report. ( 10 ) P. W. 6 conducted autopsy. P. W. 8 is the son of the deceased, whose evidence had been corroborated with the version of p. Ws. 1 and 2. The learned Judge had discussed the evidence available on record in detail and ultimately had arrived at a conclusion that the accused is found guilty under Section 304 Part I IPC. ( 11 ) THIS appears to be an incident in between the husband and wife. It is also the version of the prosecution that the quarrels had been there even prior thereto and the quarrel did not occur only on the fateful day. ( 11 ) THIS appears to be an incident in between the husband and wife. It is also the version of the prosecution that the quarrels had been there even prior thereto and the quarrel did not occur only on the fateful day. In the course of quarrel, it may be that the husband had no real intention of doing away with the life. But, in a fit of anger, he might have attacked. Hence, in the facts and circumstances, the offence may not fall under Section 304 Part I IPC, but would fall under Section 304 Part II IPC. ( 12 ) ACCORDINGLY, the conviction and sentence under Section 304 Part-l IPC are hereby set aside and instead, the appellant- accused is convicted under Section 304 part-ll IPC. It is also brought to the notice of this Court that the accused is aged more than about 70 years and it is unfortunate that at this old age due to quarrel between the husband and wife, husband-accused had lost the wife, whatever may be the reason. Accordingly, in view of the fact that the appellant-accused has been suffering imprisonment for about five years, it would be just to sentence him for a period of imprisonment which he had already undergone in this regard. ( 13 ) IN the result, the Criminal Appeal is partly allowed. The conviction and sentence recorded by the learned Principal Sessions judge, Nalgonda, in Sessions Case No. 320 of 1998, dated 31-07-1999, against the appellant-accused under Section 304 Part I ipc are hereby set aside, but as he is convicted under Section 304 Part II IPC and in view of the fact that the period of sentence of about five years had been already undergone, the accused to be let off forthwith and accordingly the appellant- accused is ordered to be released forthwith, after following due procedure, if not required in any other crime.