JUDGMENT - PALSHIKAR V.G., J.:-Being aggrieved by the judgment and order of conviction and sentence passed on 28-6-2001 by III Additional Sessions Judge, Nashik in Sessions Case No. 10/2000 the appellant named above has preferred this appeal on the grounds mentioned in the memo of appeal and as verbally canvassed by the learned Advocate appearing on behalf of the appellant before us. 2. With the assistance of the learned Counsel for the defence and the prosecution we have scrutinized the record and reappreciated the evidence. 3. The prosecution story as disclosed on reappreciation of evidence of record stated briefly is that the accused committed murder of his wife by using sickle for causing hurt to her on 29-8-1999. Thereafter he cut his own throat. The matter was informed to his son who arrived to note that his mother has died and father is removed hospital in an unconscious condition. Police investigate the death and prosecuted the accused for murdering his wife and for attempting to commit suicide by himself. The prosecution examined seven witnesses to prove its case which was accepted by the learned trial Judge and the accused was convicted as aforesaid. 4. The entire evidence is circumstantial in nature but it is impacable. The First Information Report has been lodged by son of the accused complaining of killing his mother by the accused. It is case of father killing wife and son complaining. F.I.R. is proved by him. P.W. 2 Dr. (Mrs.) Kalpana Vyavahare who conducted the post-mortem has deposed the injuries on the person of the deceased. She has proved that the death was homicidal. P.W. 3-Shivaji Ravale and P.W. 4-Suresh Vadhere are panchas who took the articles to Chemical Analyser, P.W. 5 Hanusanta Giri is the Police Inspector who found dead body, took the injured accused to the hospital and sent the articles to the Chemical Analyser whose report was received and duly proved. The report said that the sickle contained blood stains of the accused and clothes of the accused were blood stained of his own blood as also his wifes blood. In this case the police at Nashik have used sniffing dogs for investigation. The report said that the sickle contained blood stains of the accused and clothes of the accused were blood stained of his own blood as also his wifes blood. In this case the police at Nashik have used sniffing dogs for investigation. P.W. 6 Shaikh Ahmed was the trainer of the sniffing dog who was taken to the spot who smelled the victim, entered the house, smelled the place where the accused was lying and indicated towards the police jeep, the fact being it was that very jeep in which P.W. 5 had taken the accused to the hospital. The dog was thereafter taken to the hospital where he led the police to the bed where the accused was lying. Acceptance of this evidence was therefore only thing that can be done by the trial Court. 5. The only question which arises for our consideration is whether the accused who killed his wife and then cut his own throat had the intention to commit murder of his wife or wanted to end both. The injuries on the person of accused were severe. He has also made extra judicial confession to his son P.W. 1-Bajirao Waghmare. It is obvious therefore that he was enraged by consistent nagging of his wife requiring him to go to work, he hit her and on having realised what he has done cut his own throat. In our opinion, the prosecution has failed to prove any intention on the part of accused to commit murder. In the state in which he was when he assaulted and thereafter was found unconscious having tried to commit suicide himself likelihood of knowledge that such injury may cause death is the maximum that can be attributed to the accused. It is peculiar unfortunate case in which the husband has killed his wife and tired to end himself. In our opinion, therefore, the proper conviction would be under section 304(II) of I.P.C. In the result, therefore the appeal succeeds partly and is partly allowed. Order of conviction and sentence under section 302 of I.P.C. is set aside and instead the accused is convicted under section 304(II) of I.P.C. and is sentenced to suffer rigorous imprisonment for five years. We are informed that the period of five years is already over. In such eventuality after examination of factual correctness of the statement he be released forthwith if not otherwise required. We are informed that the period of five years is already over. In such eventuality after examination of factual correctness of the statement he be released forthwith if not otherwise required. Appeal partly allowed. -----