N. V. DABHOLKAR, J.:- Original accused, by this appeal under Section 374(2) of the Code of Criminal Procedure, 1973, challenges the judgment and order passed by II Adhoc Additional Sessions Judge, Latur, in Sessions Case No. 68 of 2005, on 28-3-2006. The appellant was tried for offences under Sections 302 and 498-A of Indian Penal Code and after finding the appellant guilty on both the counts, learned Sessions Judge has sentenced him to life imprisonment, fine Rs. 1,000/- in default rigorous imprisonment for three months on the first count, and rigorous imprisonment for three years, fine Rs. l,000/-, in default, rigorous imprisonment for three months on the second count. Feeling aggrieved by finding of guilty, conviction and sentence, the appellant-accused is before us. 2. The factual matrix of the incident can be narrated as follows: The incident in question is said to have taken place on 3-6-2005 at about 9.00 to 9.30 a.m. at Village-Bhoira, Taluka and District Latur. Mahanada, victim of the incident, was the wife of the present appellant. It is alleged that the accused struck the victim on her forehead by means of a stone, which caused serious injury to her and due to which she succumbed to death. Mahananda was married to accused appellant about ten years prior to the alleged incident. She had delivered three children out of the wedlock, who were aged 7,5 and 3-1/2 at the time of incident. viz. two daughters (Manisha and Mayura) and youngest is the son Vijay. According to the prosecution, matrimonial life of the couple was happy for a period of six years where after the accused took to bad habits. It is said that he kept a mistress and, therefore, he started ill-treating deceased Mahananda. It is narrated by almost all witnesses related to victim that, Mahananda used to narrate this whenever she visited the place of her brother (PW-4 Arun) on festive days. The alleged incident is said to have taken place on 3-6-2005 at the place of PW-4 Arun, real brother of deceased Mahananda. On reference to evidence of Bhagirathi, maternal aunt (??????) of Mahananda, it is evident that the appellant had come in search of Mahananda in the former night and also in the early morning of 3-6-2005. From the evidence of PW-5 Rambhau, it appears that Mahananda alighted from the bus with three kids and proceeded towards the house of her brother Arun. From the evidence of PW-5 Rambhau, it appears that Mahananda alighted from the bus with three kids and proceeded towards the house of her brother Arun. Accused had followed her after short time gap. Arun was informed of the incident when he was working in agricultural land, by his cousin Kisan Gaikwad. Quarrel between the couple is said to have been witnessed by PW-8 Tanubai. PW10 Anita is also said to have arrived on the scene within shortest time, soon after the incident. It is the contention of the prosecution that after hitting Mahananda, accused took to his heels. He was chased by Vinayak and Tatya who were shouting, “catch him”. Accused was obstructed by Angad Mhaske and thereafter he was taken control of and beaten by the villagers. Sarpanch Vilas Mane reported the matter on telephone, to Investigating Officer Ramesh Ghodke (Deputy Superintendent of Police, Crimes) who was then attached to Murud Police Station. The victim was admitted to Government Hospital, Latur and is said to have expired on the next day i.e. 4-6-2005 at about 10.30 p.m.. Upon telephonic intimation from Sarpanch Vilas Mane, Investigating Officer Ramesh Ghodke seems to have visited village Bhoira. He recorded statement of PW-4 Arun there itself, which was subsequently treated as F.I.R. He recorded spot panchanama, also approached the hospital authorities for the purpose of recording statement of Mahananda, but such attempt was frustrated since the Medical Officer opined that the patient was not in a condition to make a statement. Investigation was completed by Shri. Ghodke after seizure of clothes of the deceased, seizure of shirt of accused, as also that of Kishan who had helped injured to the vehicle by which she was taken a to hospital. Blood samples of the accused and I victim were also collected and the report of t analysis is obtained from forensic laboratory, c about all these articles. Statements of child a witnesses were also recorded before the Magistrate, although they were not examined during the trial. On completion of the v investigation, charge-sheet was filed in the court a of competent Magistrate and upon committal, V trial ended in conviction as above. 3. Heard respective counsel. Learned Counsel for the appellant and learned A.P.P. together have taken us through entire evidence. On completion of the v investigation, charge-sheet was filed in the court a of competent Magistrate and upon committal, V trial ended in conviction as above. 3. Heard respective counsel. Learned Counsel for the appellant and learned A.P.P. together have taken us through entire evidence. On reference to the impugned judgment, 0 it can be said that the learned Judge treated the evidence of PW-4 Arun, PW-5 Rambhau, PW- 8 Tanubai and PW-l0 Anita, as of significance It and he has believed them and, therefore, :r accepted the prosecution story, of accused having inflicted the fatal injury by striking the e victim on her forehead with a large stone. So far as charge under Section 498-A, I.P.C. is concerned, very little discussion h appears in paragraphs 36, 38 and 39 of the judgment. Statement of all witnesses to the e effect that accused had kept a mistress and therefore, he had subjected the victim to harassment and cruelty, is accepted by the learned Judge He has observed that, the deceased had gone to commit suicide due to beating at the hands of the accused, is a matter of record and, therefore, the Judge has held the offence under Section 498-A of IPC to have been proved. The incident of deceased Mahananda attempting to commit suicide in the canal while the couple was staying at Pune, is taken as the basis. For the reasons recorded in paragraph 43, learned Judge rejected the plea of the defence that it is an offence attracting only Section 304(2) and not Section 302, and hence the conviction. 4. Before going to consider the evidence for its appreciation and correctness or otherwise of the findings by the learned trial Judge, we must refer to the statement of the accused u/s.313 of the Code of Criminal Procedure, 1973. The accused has taken liberty to file written statement (Exh.58) at the conclusion of this statement under Section 313 and tried to make out an elaborate defence. According to this written statement, Mahananda was unwilling to reside in a small village and, therefore, they stayed at Pune for about 1-1/2 years, soon after the marriage. When they returned to native place from Pune, she compelled the accused to stay at Latur. At Latur, he was earning by labour and it became difficult for him to pay attention to his parents and ancestral land at Akherwai, Taluka-Latur. When they returned to native place from Pune, she compelled the accused to stay at Latur. At Latur, he was earning by labour and it became difficult for him to pay attention to his parents and ancestral land at Akherwai, Taluka-Latur. Naturally, the family suffered financial crunch. On the day previous to the alleged incident there was a skirmish between the couple, because the deceased expressed that she did not wish to continue co-habitation with the accused and she angrily left. Accused searched for her, whole the night, apprehending that she may take untoward steps towards herself and children, as she was a woman of very hot temperament. In order to search the deceased, and if necessary to disclose to her relatives regarding her conduct, the accused went to Bhoira on the day of the incident. Mahananda was seen sitting in the shed in front of house of her brother. Seeing the accused, she abused him in a filthy language, again proclaimed her intention to discontinue co-habitation and threw away mangalsutra towards the accused. The accused reacted by taking the children with him and indicating his departure. According to the accused, feeling annoyed and frustrated by this reaction on his part, Mahananda got herself struck on her forehead by the stone. As she started bleeding, the accused started towards the bus stand to procure a rickshaw and while he was running, the villagers, believing that he must have beaten Mahananda, caught him and thrashed him. Although accused suggested that the wife should be immediately shifted to dispensary, under the apprehension that he may file prosecution for the beating, they have managed false prosecution against him. The accused has concluded the written statement, by blaming relatives of Mahananda, as also doctors for not providing proper medical assistance and with promptness to her. Although appellant-accused replied all the questions, generally by saying, "It is false", few questions are answered by him in the affirmative by saying, "It is true". Total effect of these affirmative replies can be narrated thus: It is not disputed that the victim had suffered head injury which resulted into her death (question No.4). It is admitted that accused reached village Bhoira after some time, since arrival of Mahananda with children (question No. 15) and that he proceeded towards the house of Mahananda’s brother Arun. Total effect of these affirmative replies can be narrated thus: It is not disputed that the victim had suffered head injury which resulted into her death (question No.4). It is admitted that accused reached village Bhoira after some time, since arrival of Mahananda with children (question No. 15) and that he proceeded towards the house of Mahananda’s brother Arun. Autorickshaw was procured by Achut Mhaske and Mahananda was helped in Rickshaw by Anita and Tanubai and she was shifted to hospital at Murud. After primary aid at Murud, Mahananda was shifted to Civil Hospital, Latur. The accused has accepted the version of Bhagirathibai that on former night at 11.00 p.m. he had gone in search of Mahananda and also again at 7.00 a.m. on the next morning. 5. First of all, coming to the charge under Section 498-A, IPC, taking into consideration the definition of ‘cruelty’ as contained in explanation to Section 498-A, we are of a considered view that there is no sufficient material on record to sustain the charge. The definition ‘cruelty’ is in two parts. According to clause (a) of the explanation, wilful conduct of such a nature as is likely to drive the woman to commit suicide or cause grave injury or danger to life, limb or health of the woman, is a ‘cruelty’ punishable under Section 498-A. Clause (b) presupposes that unlawful demand on the part of husband and his relatives to physical or mental harassment of the woman and her relatives, must be aimed at coercing them to satisfy his/their unlawful demand. In the matter at hands, it is nobody’s case that something was being demanded either by the accused, or his relatives. Reasons discussed by learned Judge in paragraphs 36, 38 and 39 of the impugned judgment, which related to charge under Section 498-A, IPC, clearly indicate that the Judge has placed reliance upon definition of ‘cruelty’ as contained in clause (B) and that is why the Judge has referred to the incident, wherein Mahananda had attempted to commit suicide in a canal while the couple was staying at Pune. Otherwise, all the witnesses, who speak about cruelty, say that the accused had kept a mistress and, therefore, he had started ill-treating the wife Mahananda. Unfortunalely, narration that the accused had kept a mistress, has come in very casual and vague term. Otherwise, all the witnesses, who speak about cruelty, say that the accused had kept a mistress and, therefore, he had started ill-treating the wife Mahananda. Unfortunalely, narration that the accused had kept a mistress, has come in very casual and vague term. Nobody has narrated, whether the mistress was co-habiting with accused in the same house as the victim Mahananda. In fact, Mahananda left the husband’s place on 2-6-2005 after a quarrel and yet, it has not come by any mode on record, that the mistress had any role to play at that quarrel. Admittedly, accused was earning by labours and he does not seem to be a person with capacity to maintain mistress in an independent house. So far as attempt on the part of Mahananda to commit suicide is concerned, PW-9 Bhagirathibai, although narrated in her chief-examination that the quarrel started on account of "mistress" of accused, was required to admit in her cross-examination that she has not so narrated in her police statement. In paragraph 4 of her cross-examination, Bhagirathi deposed that she had narrated to the police that because of beating by the accused, Mahananda had tried to commit suicide by jumping in canal at Pune. Admittedly, the couple stayed at Pune for first 1-1/2 years immediately after the marriage and the marriage had taken place ten years prior to the alleged incident. Thus, the incident of Mahananda attempting suicide was nearly eight years old at the time of alleged incident. We, therefore, feel that the learned Judge could not have taken such an incident as basis for sustaining charge of cruelty as defined by explanation (a) to Section 498-A of IPC. We feel that the charge u/s. 498A,.IPC is not sustainable and finding of guilty, as also conviction on that count, will have to be set aside. 6. So far as charge u/s.302, IPC is concerned, Mahananda having suffered head injury caused by stone, has become an admitted fact, even if we are to take into consideration, the defence theory. Consequently, there is no need to refer either to inquest or to medical evidence. The dispute is how the injury was suffered, whether it was a result of action on the part of accused, or it was an attempt by Mahananda to commit suicide, on seeing that her husband was taking away the children. Deposition of Tanubai is the best possible direct evidence. The dispute is how the injury was suffered, whether it was a result of action on the part of accused, or it was an attempt by Mahananda to commit suicide, on seeing that her husband was taking away the children. Deposition of Tanubai is the best possible direct evidence. According to Tanubai, her house is in front of the house of Arun and although she was going to fetch water in a direction opposite to the house of Arun, hearing noise of quarrel, she had gone in front of the house of Arun and entered his house only when she heard loud cry “vkbZ vkbZ” of Mahananda. As she entered the house, the accused ran away. An attempt was made by learned counsel for the appellant to demonstrate that Tanubai could not have witnessed anything, by relying upon admission of Anita who said that she and Tanubai together went to the house of Arun. In fact, this admission of Anita is required to be ignored as wrong admission, in view of sentence preceding this admission. We quote both the sentences together : “..... Due to loud shout of Tanubai, I turn to the house of Arun. Tanubai and myself went to the house of Arun, together.” By first admission, it is clear that the two ladies were not together. Anita heard shout of Tanubai from the location near the house of Arun and then she turned her course to the house of Arun. First admission should confirm the correctness of version of Tanubai that hearing the noise of quarrel, she had been close to the house of Arun, out of curiosity. The fact that Anita heard shout of Tanubai, on the contrary, indicates that Tanubai herself had missed some part of occurrence. Anita heard shout of Tanubai, should confirm that Tanubai must have seen accused assaulting Mahananda. The appellant-accused does not dispute that he had started running; that he was chased by people and also beaten by them. It is his claim that he had started running in order to procure a rickshaw. Unfortunately for the accused, this defence theory propounded by him, fails on the touchstone of probability and on several counts. It is his claim that, he had already started his return journey with children. After he started walking away with children, Mahananda, out of frustration, got herself hit on the forehead by the stone. Unfortunately for the accused, this defence theory propounded by him, fails on the touchstone of probability and on several counts. It is his claim that, he had already started his return journey with children. After he started walking away with children, Mahananda, out of frustration, got herself hit on the forehead by the stone. The defence has not been able to obtain an admission from any of the witnesses that initially, accused had started running away from the location and then he had again ran back to the location. Natural instinct should have been to first prevent the wife from hitting her head on stone or hitting stone on her head. Accused does not attribute any such reaction to himself. Even the Medical Officer, although admitted that such an injury is possible by fall, added that it is less likely by self infliction With due respect, we are unable to agree with both the views expressed by the Medical Officer. As rightly observed by learned trial Judge, if the victim strikes the stone on her forehead or hits the forehead on the stone, in that case, she would not cry. Witness Tanubai had heard cry of Mahan and a, when she suffered injury. About opinion of Medical Officer that such injury is possible by fall, it must be noted that there are no other corresponding injuries and a person may not fall in such a manner that left part of forehead would strike stone, suffers skull fracture but no other abrasion on any other part of the head. In fact, it is natural instinct that when a person falls on the face, he would support himself by his hands. A fall on the back in an unguarded position may be completed, but a fall on the face would always be saved, so far as intensity of the impact is concerned, by use of arms as buffers. Last but not the least. On reference to report of the analyser, it is evident that manila of the accused is stained with human blood. No doubt, blood group is not determined but it is not the case of the accused that as a result of beating by people, he had suffered bleeding Injury. We, therefore, feel that, by an attempt to rely upon improbable story, the accused has given strength to the prosecution case. No doubt, blood group is not determined but it is not the case of the accused that as a result of beating by people, he had suffered bleeding Injury. We, therefore, feel that, by an attempt to rely upon improbable story, the accused has given strength to the prosecution case. We do not find any reason why Tanubai and Anita, should depose against accused, when a consistent story is coming through the version of four witnesses i.e. Rambhau, Tanubai, Anita and Arun (brother of victim). 7. Learned Counsel for the appellant - accused was critical, because the child witnesses are not examined, by putting them in witness box. Evidence is to be weighed and not counted. If the prosecution had couple of adult witnesses, who could give an account of the incident, no adverse inference is invited, merely because child witnesses are not put in witness box. The children were aged 7, 5 and 32/2 years at the time of alleged incident and it was a wiser decision not to put them in the witness box. In fact, the query which is posed by defence to the prosecution, can also be posed by prosecution to the defence. Even the accused could have put the child witnesses in the witness box to say that father did not strike the mother. 8. Last part of the legal battle between the two counsel was on the point whether the facts and circumstances attract section 302 of IPC, or it is a culpable homicide not amounting to murder, thereby attracting, at the most; section 304(2) of IPC. Number of cases were placed before us by both the sides, but findings in those cases were based on facts and circumstances of the reported matters. In the matter at hands, trial Court has rejected the plea of the defence, of grave and sudden provocation and held that, it would not be termed as “culpable homicide not amounting to murder”. We may repeat the factual details for considering this aspect. The marriage of the couple was ten years old. They had three children. We have disbelieved the story of husband maintaining a mistress. The contention of the husband is that the wife was forcing him to stay at city like Pune or Latur. The husband admits that financially, they were not well-off and there were frequent quarrels on that count. The marriage of the couple was ten years old. They had three children. We have disbelieved the story of husband maintaining a mistress. The contention of the husband is that the wife was forcing him to stay at city like Pune or Latur. The husband admits that financially, they were not well-off and there were frequent quarrels on that count. The couple had hot exchanges on the previous night and the wife had angrily left the house with the children. The husband had searched for her entire night and the search was on, even just before the alleged incident. The husband was not armed with any weapon. What was used as a weapon, was stone of loose stone wall compound. It is not the prosecution story that the victim was pinned down to the ground and repeated blows were inflicted on the skull. Admittedly, stone was hurled at the victim, which she could have avoided. Although it is the story of the prosecution that three stones were hurled, other two stones in the photographs (Exh.41) by their size and weight that can be inferred, we are of considered view; could not have been hurled. Therefore, hurling of three stones is an exaggeration. It is thus evident that probably, the night quarrel was carried forward in the morning and in the heat of quarrel, husband picked up the stone and hurled it at the victim, which hit on her forehead. Taking sum total of these circumstances, we feel that “intention to kill” is not brought home hundred per cent We are, therefore, inclined to agree with the learned counsel for the appellant, that this would be a case within purview of Section 304(2) of IPC, death having ensued by an act done with the knowledge that it is likely to cause death but without intention to cause death. The appeal to that extent will have to be allowed as against the finding of guilty and conviction under Section 302 of IPC as recorded by the trial Court. 9. The appeal is, therefore, partly allowed. Finding of guilty and conviction recorded by II Adhoc Additional Sessions Judge, on 28-3-2006 at the conclusion of Sessions Case No.68 of 2005, so far as charge under Section 498-A, IPC is concerned, is quashed and set aside. The appellant-accused Mohan Sopan Barbole is acquitted of the said charge. Fine amount of Rs. 9. The appeal is, therefore, partly allowed. Finding of guilty and conviction recorded by II Adhoc Additional Sessions Judge, on 28-3-2006 at the conclusion of Sessions Case No.68 of 2005, so far as charge under Section 498-A, IPC is concerned, is quashed and set aside. The appellant-accused Mohan Sopan Barbole is acquitted of the said charge. Fine amount of Rs. 1,000/- if is deposited, shall be refunded to the accused. So far as finding of guilty and sentence imposed, regarding charge under Section 302, I.P.C. is concerned, the same is set aside, accused is held guilty for offence punishable under Section 304(2) of IPC (instead of Section 302, IPC). Consequently, life imprisonment is set aside and the accused is sentenced to suffer rigorous imprisonment for ten years. Fine amount imposed by the Sessions Judge, shall remain undisturbed. The appellant - accused is in prison since the date of arrest i.e. 3-6-2005, throughout during pendency of case before the Sessions Court and appeal before this Court. Set off under Section 428 of the Code of Criminal Procedure, 1973, be allowed to the appellant, of this detention period. Since we have maintained part of the conviction, office shall furnish a certified copy of this judgment to the appellant-accused Mohan s/o. Sopan Barbole, free of costs, through jail authorities. Appeal partly allowed.