T. MEENA KUMARI, J. ( 1 ) THIS criminal appeal is preferred against the judgment of conviction and sentence dated 16-4-2004 passed in S. C. No. 528 of 2003 on the file of Special Judge forthe trial of offences under the SCs and STs (Prevention of Atrocities) act - cum - VI Additional Metropolitan Sessions judge, Secunderabad. ( 2 ) THE brief facts of the case are as follows: The Inspector of Police, Gandhi Nagar police Station filed charge sheet alleging that the accused married the deceased Latha about 10 years ago and they were blessed with four children. Six years after the marriage, the accused developed suspicion over the character of his wife and started harassing her and in that connection the deceased filed a complaint against the accused in Uppal Police station Under Section 498 IPC; while so, on the intervening night of 6/7-6-2003 the accused with an intention to eliminate his wife, picked up a quarrel on petty matter that she did not cook mutton curry and beat her with hands and legs indiscriminately and thrashed her with a wooden plank on her hand and when she fell down on a cot, he throttled her as a consequence of which she died in the hospital on 7-6-2003 and therefore he has committed the offence punishable under Section 302 IPC. ( 3 ) THE learned X Metropolitan Magistrate, secunderabad took cognisance of the offence under Section 302 IPC against the accused and after furnishing the copies to the accused under Section 207 Cr. P. C. committed the case to the Court of Sessions under section 209 Cr. P. C. The Metropolitan sessions judge, Hyderabad, having taken the case on file, made over the same to the Court of Special Judge-cum-VI Additional metropolitan Sessions Judge, Secunderabad who framed Charges under Sections 498-A and 302 IPC, read over and explained the same to the accused for which he pleaded not guilty and claimed to be tried. During trial, the prosecution examined PWs 1 to 11 and exhibited Exs. P-1 to P-19 and M. Os 1 and 2 on its behalf while Exs. D-1 and D-2 were marked on behalf of the defence. During trial, the prosecution examined PWs 1 to 11 and exhibited Exs. P-1 to P-19 and M. Os 1 and 2 on its behalf while Exs. D-1 and D-2 were marked on behalf of the defence. ( 4 ) AFTER considering the material available on record, the Court below found the appellant- accused guilty of the offence punishable under section 302 IPC and accordingly convicted and sentenced him to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine to suffer simple imprisonment forone month. Aggrieved by the said conviction and sentence, the appellant-accused preferred this appeal. ( 5 ) LEARNED counsel for the appellant contended that though the evidence of PW-1 is in the nature of hearsay and PWs 2 and 3 who are the son and daughter of the deceased and the accused turned hostile, the Court below relied upon a stray sentence in the cross-examination of PW-3 and basing on the evidence of the child witness wrongly came to the conclusion that the appellant-accused committed the murder of the deceased; that there is no evidence available on record to show that the accused had any intention to kill the deceased and that the evidence available on record is not at all clinching to establish the guilt against the accused for the offence under section 302 IPC and therefore the Court below gravely erred in convicting and sentencing the appellant-accused for the offence under section 302 IPC and hence the judgment of the Court below is liable to be set aside. ( 6 ) ON the other hand, learned Public prosecutor supported the judgment passed by the Court below contending that though pws 2 and 3 have been turned hostile, their evidence establishes the factum of murder of the deceased and nobody other than the accused had access or grudge to kill the deceased and the medical evidence also clearly establishes the case of the prosecution that the deceased was subject to beatings and throttling and in view of the categorical evidence available on record, the Court below was right in convicting and sentencing the appellant-accused for the offence under section 302 IPC and it needs no interference by this Court and therefore the appeal is liable to be dismissed. ( 7 ) HEARD the learned counsel for the appellant and the learned Public Prosecutor and perused the material available on record. The case of the prosecution is that the appellant-accused committed murder of the deceased by beating on her head with a wooden plank and throttling her. The evidence of PW-8 the doctor shows that on 7-6-2002 on the requisition of Inspector of Police, p. S. Gandhinagar, he conducted autopsy over the dead body of the deceased and found the following features: "rigor marks not yet set in and body clothed in saree, petticoat, blouse, tracheotomy would over the neck. The following ante mortem injuries were found on the body: 1. A lineal scratch 1 cm. long below the chin on the left side. 2. Abrasion 1 x 1 cm below the angle of the right lower jaw. 3. Abrasion 2 c 1 cm. over the medial end of the left collar bone. 4. Abrasion x cm. below the right collar bone. 5. Contusion of inner aspct of lower lip. 6. Three small scratches over the front and middle of neck. 7. Abrsion 2 x 1 below the right knee. 8. Abrasion 2 x 1/2 cm. over the lower part of the centre of the back. 9. Contusion scalp internally 2 x 2 cm. with corresponding periosteal contusion. 10. Contusion scalp left parietal 4 x 2 cm. internally. 11. Contusion scalp internally over the occipital 3 x 3 cm. 12. Bruising of neck, muscles. " ( 8 ) THE doctor further found that the brain was congested and oedematous with petechial haemorrhage on cut section, lungs congested and that the cause of death was due to asphyxia consequent to compression of the neck. Ex. P-10 is the post mortem certificate issued by him. ( 9 ) FURTHER, the evidence of PW-7 the panch witness for the inquest panchanama and pw-11 the Inspector of Police also shows that inquest was conducted over the dead body of the deceased. PW-1 is the father of the victim and his evidence is that the accused used to beat his wife and he found injuries all overthe body of the deceased, which fact is supported by the medical evidence. Therefore, it can be safely concluded from the evidence available on record that the death of the deceased was homicidal. PW-1 is the father of the victim and his evidence is that the accused used to beat his wife and he found injuries all overthe body of the deceased, which fact is supported by the medical evidence. Therefore, it can be safely concluded from the evidence available on record that the death of the deceased was homicidal. ( 10 ) NEXTLY, it has to be seen whether it is the appellant-accused who has committed the murder of the deceased. PW-1 is the father of the deceased. According to him, there were differences between the deceased and the accused and the deceased used to inform him that the accused was in the habit of beating her in drunken state. On 7-6-2003 in the morning time he received a phone call from the father of the accused stating that latha (deceased) was in Gandhi hospital in serious condition. Immediately he rushed to the hospital and found the deceased who was breathing hard and she was unable to speak. He found injuries on the neck and chest of the deceased and she died within one hour after his reach. He went to police station, gandhinagar and gave Ex. P-1 statement. Though he was cross-examined at length, nothing was elicited to discredit his testimony. However, he stated in the cross-examination that he does not know whether the accused did not have any intention to kill his daughter on account of their disputes as suggested and he does not think that the accused would kill the deceased. ( 11 ) PW-2 is the son of the deceased and the accused and he did not support the case of the prosecution and therefore the prosecution sought permission to treat him as hostile witness. PW-3 is the daughter of the deceased and the accused who also turned hostile. However, in the cross-examination pw-3 stated that her sister and younger brother in weeping state went down to ground floor during the said night. She further stated that her father. e. the accused took her and pw-2 to upstairs while there was bleeding from the nose and mouth of her mother. e. the deceased. From the evidence of PW-3 it is clear that the accused was very much present when the deceased was bleeding from nose and mouth and he took PWs 2 and 3 to upstairs. ( 12 ) PW-4 is the mother of the accused. e. the deceased. From the evidence of PW-3 it is clear that the accused was very much present when the deceased was bleeding from nose and mouth and he took PWs 2 and 3 to upstairs. ( 12 ) PW-4 is the mother of the accused. She also turned hostile but her evidence discloses that her grandson Vikram came and informed that his mother was not getting up and then she went to the house of the accused and then the victim was lying on bed and then she took the victim to Gandhi hospital at 3. 00 a. m. and later the victim died at 12. 00 noon. From the evidence of PW-3 it is evident that the accused alone was present with his wife during the said night. The evidence of the doctor and Ex. P-10 post mortem certificate disclose that the cause of death was due to asphyxia consequent to compression of neck and there were scratches and abrasions at several parts of the body and the medical evidence clearly suggests that it is a case of death due to compression of the neck and thus supports the case of the prosecution. Though PWs 2 and 3 did not support the entire case of the prosecution, the evidence of pw-3 that her father took her and PW-2 to the upstairs when there was bleeding from the nose and mouth of the deceased clearly supports the case of the prosecution to the effect that the accused beat the deceased with wooden plank and when she fell down, throttled her. By adopting the last seen theory, in this case the evidence is clearly that except the accused no other person had any access or enmity to kill the deceased. ( 13 ) PW-5 is one of the tenants of PW-1. He also spoke that the accused used to beat the deceased frequently and on one occasion he himself personally witnessed the accused beating the deceased. On the date of incident also he came to know that the deceased was beaten and killed by the accused. ( 14 ) PW-6 is also resident of the locality who has acted as mediator for Ex. P-8 confessional statement of the accused and also for the recoveries of M. O.-1 empty beer bottle and M. O-2 Kattipeta. On the date of incident also he came to know that the deceased was beaten and killed by the accused. ( 14 ) PW-6 is also resident of the locality who has acted as mediator for Ex. P-8 confessional statement of the accused and also for the recoveries of M. O.-1 empty beer bottle and M. O-2 Kattipeta. PW-7 is a panch witness for the inquest conducted over the dead body of the deceased and he stated that the police conducted inquest over the dead body of the deceased and they found injuries on the head of the deceased and it appeared that she was strangulated. PW-9 is the S.. of police who deposed as to receiving complaint from the deceased for the alleged harassment and registering the same as Cr. No. 65 of 2000 under Section 498-A IPC. Ex. P-11 is the true copy of the FIR in Cr. no. 65 of 2000 and Ex. P-12 is the true copy of the charge sheet along with two sheets of case diary. ( 15 ) PW-10 is the S.. of Police who recorded the oral statement of PW-1 under Ex. P-1 and registered the same as a case in Cr. No. 184 of 2003 under Section 307 IPC and issued FIRs to all the concerned. Ex. P-13 is the printed fir. He stated that he examined PW-1 and recorded his statement, Later, on receiving message from Gandhi hospital that the victim latha died, he altered the section of law from 307 IPC to 302 IPC and intimated the same to his superior. He apprehended the accused on 7-6-2003 at 12. 30 hours and in presence of mediators he recorded the confessional statements of the accused. He further stated that the accused stated before him that he was suspecting the character of his wife and he also stated that he consumed a bottle of beer. PW-10 further stated that the accused showed them a wooden plank with which he beat his wife on her head. Ex. P-14 is the statement with regard to consumption of one bottle of beer in his house. Ex. P-15 is the portion of confessional statement that he showed them the cot and side walls of the room in which he banged his wife and also the wooden plank with which he beat his wife on her head. Ex. P-14 is the statement with regard to consumption of one bottle of beer in his house. Ex. P-15 is the portion of confessional statement that he showed them the cot and side walls of the room in which he banged his wife and also the wooden plank with which he beat his wife on her head. PW-10 drafted the rough sketch of scene of offence under Ex. P-17 and Ex. P-18 is the scene of observation contained in confessional statement to the effect that the scene of offence consists of cot lying in the room. ( 16 ) PW-13 is the Inspector of Police who is said to have altered the section of law from 307 IPC to 302 IPC and submitted express memo to the court concerned. Ex. P-19 is the alteration memo. He conducted inquest over the dead body of the deceased under Ex. P-9 and examined PWs 1 to 4 and recorded the statements of PWs 2 to 4. After receipt of post mortem examination report and after completion of investigation, he filed charge sheet. ( 17 ) AS could be seen from the evidence available on record, PWs 2 and 3 are the child witnesses and PW-1 is the father of the deceased who came to know through the father of the appellant herein regarding admission of the deceased in the hospital. The deceased died around 12. 00 noon after admission in the hospital and the dying declaration could not be recorded as she was unconscious. A perusal of the evidence available on record goes to show that except the oral evidence of PWs 2 and 3 who are declared, hospital, there is no eyewitness available to the incident. However, the evidence of PW-3 who is the daughter of the accused and the deceased goes to show that the deceased and the accused were very much present in the house and PW-3 has seen the deceased with bleeding in her nose and mouth. The evidence available on record clearly shows that the deceased was subjected to throttling and no evidence was adduced by the defence to rebut the case of the prosecution that except the accused there was no access to anybody to kill the deceased. As spoken to by PW-1 and other witnesses, the accused was in the habit of drinking and beating the deceased in a drunken state. As spoken to by PW-1 and other witnesses, the accused was in the habit of drinking and beating the deceased in a drunken state. The natu re of the injuries received by the deceased coupled with the medical evidence clearly suggests that the deceased was subjected to beatings and throttling and the circumstantial evidence available on record unerringly points that it is the accused who alone is responsible for killing the deceased. However, from the evidence available on record there is nothing to come to the conclusion that the accused had any intention of killing the deceased or that he has done the act with any pre-meditated intention. The evidence available on record clearly suggests that the act done by the accused was in the heat of passion and he had no intention of killing the deceased. Even pw-1 stated that he did not think that the accused would kill the deceased. Even according to the prosecution, the accused picked up a quarrel on the ground that the deceased did not cook mutton curry. It is improbable to believe that on such a petty matter the appellant-accused would murder the deceased with the intention of eliminating her. The other evidence available on record also does not suggest that the appellant-accused had done the act with the intention of killing the deceased, and in the absence of any evidence available to the effect that the accused had killed the deceased with the intention to cause death and having regard to the evidence of PW-3 and the medical evidence, it can be safely concluded that the appellant-accused had knowledge that the act done him is likely to cause the death of the deceased. In the circumstances, as the ingredients of the offence of murder are not attracted and this Court is of the considered view that the accused done the act with the knowledge that it is likely to cause death but without any intention to cause death, the conviction recorded by the Court below against the accused under Section 302 IPC is required to be modified to that of the conviction under section 304-II IPC and the sentence of imprisonment for life is to be reduced to a period of four years. ( 18 ) IN the result, the appellant-accused is not found guilty of the offence under section 302 IPC but he is found guilty of the offence under Section 304-II IPC, Accordingly, the judgment passed by the Court below against the appellant-accused in S. C. No. 528 of 2003 dated 16-4-2004 convicting the appellant-accused under Section 302 IPC is modified to that of conviction under section 304-II IPC and the sentence of imprisonment for life is reduced to that of imprisonment for four years. While calculating the period of imprisonment, the period which the appellant-accused has already undergone, shall be given set-off. ( 19 ) THE criminal appeal is accordingly allowed partly. .