JUDGMENT State is in appeal under Section 378 of the Criminal Procedure Code, 1973 questioning the acquittal of the respondent for the offence under Section 304 of the Indian Penal Code, 1860 by judgment in Sessions Case No.6 of 2007 on the file of the District and Sessions Judge at Gadag passed on 15-2-2008. 2. We have heard the learned High Court Government Pleader and the learned amicus curiae for the respondent. 3. The material accusation on the basis of which, the respondent was arraigned, charged, tried and ultimately found not guilty for offence under Section 302 of IPC are: The respondent-Veeresh Andappa Abbigeri married P.W. 3-Smt. Sunitha and through her had two male children. He was in business but as it did not succeed, he fell in debts. He was upset and became a demanding husband and also undulged in several undesirable habits. Sunitha would advise him, which upset him often. It is alleged that on 5-11-2006, he approached P.W. 1, his sister-in-law Smt. Kavitha asking her to leave the house which she was occupying adjacent to his residence. He was at that time seen armed with a chopper which sent fear in her mind. Thereafter, the accused is said to have moved over to his house and Kavitha followed him. Before she could realise what was in fact happening, the accused is alleged to have assaulted Sunitha with a knife causing injury to her head as she refused to give him water. Meanwhile his son Akash who came there was also assaulted by him causing injury to his person followed by assault on the second son Avinash. The accused thereafter attempted suicide by stabbing on his abdomen with knife. 4. Report in this regard was lodged by P.W. 1-Kavitha which was registered as a complaint and investigation was taken up. Meanwhile, the injured Sunitha, Akash and Avinash were rushed to the hospital and were under treatment. During this period, Akash succumbed to the injuries, while Sunitha and Avinash survived. The accused was also rushed to the hospital for treatment and was taken to custody. The Medical Officer examined injured and recorded homicidal injuries on the person of Akash and similar grievous injuries on the person of Sunitha and simple injuries on the person of Avinash. During this period, Akash succumbed to the injuries, while Sunitha and Avinash survived. The accused was also rushed to the hospital for treatment and was taken to custody. The Medical Officer examined injured and recorded homicidal injuries on the person of Akash and similar grievous injuries on the person of Sunitha and simple injuries on the person of Avinash. The incident was seen by four more witnesses, amongst whom, the prosecution relied on the evidence of C.W. 15-Basappa Sagar, P.W. 6-Irappa Kalappa Hosalli, C.W. 10-Rachappa Sheelavantar and C.W. 12-Rachappa Pattanashetti. 5. The accused did not make any statement either inculpating him or exculpating him. 6. Recovery of three material objections was done during the investigation of the site of the incident authenticated by three witnesses. The Inspector came to a logical end that the statement of witnesses directly indicts him as the assailant and the three persons and thus, charge-sheet was laid. During the trial, before the learned Sessions Judge, the prosecution examined in all 13 witnesses and placed reliance on 22 documents and 14 material objects. The accused put up a defence of denial simplicitor which led to the learned Sessions Judge weighing the evidence of the prosecution against the charge. The learned Sessions Judge found the evidence establishing overt acts of the accused in causing the injuries on the person of Akash, which killed him and attempt on the life of Sunitha and Avinash. Though the learned Sessions Judge found the evidence established the overt acts of the accused but while considering as to what happened due to which the accused has committed the crime, the learned Sessions Judge turned down that the offence comes within Section 300 of IPC. Thus, he was acquitted of the offence under Section 302 and it was scaled down for offence punishable under Section 304, Part II of IPC. The learned Sessions Judge also found him guilty for the offence punishable under Section 324 of IPC in matter relating to injuries on Sunitha and Avinash. 7. The accused has not questioned the conviction but the State is aggrieved, as it finds that he should have been convicted for the major offence punishable under Section 302 of IPC. 8. The learned Sessions Judge also found him guilty for the offence punishable under Section 324 of IPC in matter relating to injuries on Sunitha and Avinash. 7. The accused has not questioned the conviction but the State is aggrieved, as it finds that he should have been convicted for the major offence punishable under Section 302 of IPC. 8. In support of the grounds in appeal, the learned Prosecutor would contend that the prosecution has established not only the assault on Akash, Sunitha and Avinash but has also established that the accused had a definite intention to commit murder of his wife and two sons and then to commit suicide. He should have been found guilty for the offence under Section 309 also. In this regard, he placed heavy reliance on the evidence of Kavitha-P.W. 1 who has lodged Complaint, to set the investigation into motion and ultimate filing of the charge-sheet. Reliance is also placed on the unequivocal statement given by Sunitha about the injuries caused to her person by the accused in an attempt to commit her murder. He submits that these two witnesses are consistent on material particulars regarding the place, time and the offence committed. The consistency in their statement gives no scope for doubt that accused had the intention to achieve object by his overt acts. He refers to medical evidence to indicate that but for timely medical help, Sunitha would have also lost her life. Therefore, offence falls within the scope of Section 307 of IPC and not under Section 324 of IPC. 9. Besides, he would also contend that the accused had made a clear attempt of ending his own life and was therefore, liable to be convicted for the offence under Section 309 of IPC. 10. Referring to the reasoning assigned by the learned Sessions Judge, it is urged that the learned Sessions Judge, while deciding the issue inspite of accepting the quality of evidence, concluded that the attempt was not to commit murder. He submits that non-examination of three more witnesses cited by the prosecution had in no way affected the prosecution case. The two witnesses had spoken to the facts. Besides circumstantial evidence also showed that the accused had shared a twin portion of the house along with his brother Veeresh in which Kavitha was residing. He submits that non-examination of three more witnesses cited by the prosecution had in no way affected the prosecution case. The two witnesses had spoken to the facts. Besides circumstantial evidence also showed that the accused had shared a twin portion of the house along with his brother Veeresh in which Kavitha was residing. He would further submit that preplanning and premeditation by the accused to commit the crime is manifest from his conduct prior to commission of the offence. In this regard, he refers to what Kavitha has spoken. Our attention is drawn to the fact that the accused had tried his best to send away Kavitha wife of his brother Veeresh, so that there will be no witness available when the crime is so committed. Lastly, he would also contend that as Sessions Judge finds the evidence establishing the overt acts of the accused, it could not have scaled down offence from Section 302 of IPC. In view of medical evidence that Akash died suffering injuries caused by the accused. 11. Per contra, in negation what is urged by the learned State Prosecutor, the Counsel for the respondent would support the impugned judgment and in fact, would contend that the accused has a good case on merits for acquittal and unfortunately, the accused has not filed any appeal for the impugned judgment because of the fact that the learned Sessions Judge found he was not liable to be sentenced to a longer period of imprisonment but only the period of imprisonment he has undergone during the trial. Therefore, he submits that any interference with the impugned judgment will result in injustice to the respondent-accused, as accused has failed to satisfy that the offence falls only as defined under Section 300 and not under Section 304, Part II of IPC. 12. Keeping in mind, what is urged before us by both the sides, we have examined the records in substitution thereof. 13. It must be noticed that according to the prosecution, the respondent accused was facing financial crisis due to failure in practicing as a medical practitioner. He had also lost much of the money and was virtually a mentally disturbed man. He was in depression and had indulged in undesirable habits. The incident on 5-11-2006 is a result of his disturbed mind. He had also lost much of the money and was virtually a mentally disturbed man. He was in depression and had indulged in undesirable habits. The incident on 5-11-2006 is a result of his disturbed mind. It is also the case of the prosecution that the accused in such mental debility had been atrocious towards his wife on a trivial matter of not giving water when he demanded. He followed her to kitchen and when she was about to get him water, he assaulted her with axe causing injury to her head which rendered her unconscious. Then he is alleged to have assaulted Akash - his elder son with Ellige Mane-M.O. 1 and also Avinash - his second son. The prosecution relies on the complaint of Kavitha, which the learned Sessions Judge has extracted in paragraph 4 of his impugned judgment. It also reveals that Kavitha though claims to have seen the accused entering his residential unit but she is also not clear as to how he assaulted each of the victims. In this context what Sunitha, the wife of the accused speaks, gains importance. According to the version of Sunitha, the accused hit her on the head, consequent to which, she had become unconscious. It is later, she learnt from others as to the fact that Akash and Avinash - her two sons were also assaulted by the accused and accused had made suicidal attempt on his life. 14. Therefore, it is seen that Sunitha P.W. 3-wife of the accused on whose testimony the prosecution relies, speaks only assault on her but is undoubtedly not the eye-witness to the assault on her sons Akash and Avinash. 15. As regards complainant Kavitha is concerned, though she has lodged a report which is at Ex. P. 1, she retracted from each statement appearing therein. She turned hostile to the prosecution showing adverse animus supporting no incriminating circumstances. However, the complainant received in evidence has been marked as Ex. P. 1. It is undoubtedly report received by police. It could certainly be used by the prosecution either to corroborate or contradict the statement of the giver mainly P.W. 1. But does not become the substantive evidence to be acted upon to decide culpability of the accused. We have noticed that the entire report has been marked at Ex. P. 1. It is undoubtedly report received by police. It could certainly be used by the prosecution either to corroborate or contradict the statement of the giver mainly P.W. 1. But does not become the substantive evidence to be acted upon to decide culpability of the accused. We have noticed that the entire report has been marked at Ex. P. 1 and the learned Prosecutor, while conducting the case has not drawn our attention to the inconsistency in her evidence before the Court and the incriminating statement as per in Ex. P. 1. Therefore, her evidence is of no avail. 16. We have already referred to the fact that P.W. 3-Sunitha could only speak of the assault on her person but has not either seen the incident or spoken to the fact that the accused assaulted Akash - her son and killed him. Kavitha's statement at Ex. P. 1 also does not show that she is in fact the eye-witness to the assault on the two young infants. 17. Apart from these two witnesses, the prosecution had cited evidence of P.Ws. 4, 5 and 6 to support the allegation that accused had indulged in the overt acts attempted to by him but those witnesses have also failed to give evidence and has virtually absolved him of the allegation made in the charge. When the eye-witnesses cited by the prosecution are at variance in the statements given by them during the investigation, their evidence on record is such that it hardly can be used by prosecution. The learned Prosecutor has not been successful in salvaging anything from their cross-examination which supports the fact that accused had in fact assaulted them. Be that as it may. In view of the fact that accused has also made suicidal attempt on his life, the learned Sessions Judge accepted the evidence of Sunitha as establishing the overt acts of the accused. The accused has not questioned his conviction on the basis of such acceptance of the evidence. However, for our assertion we also looked into the medical evidence. 18. It must be noticed that the medical officer who examined the injured Akash and Avinash has given the detailed description of the injuries suffered by them. The Medical Officer Dr. Panchaxarappa who examined Sunitha has recorded in the injury certificate the following injuries: 1. However, for our assertion we also looked into the medical evidence. 18. It must be noticed that the medical officer who examined the injured Akash and Avinash has given the detailed description of the injuries suffered by them. The Medical Officer Dr. Panchaxarappa who examined Sunitha has recorded in the injury certificate the following injuries: 1. Lacerated wound occipital region on either side of midline 4 length x 1/2 depth 2 cms. width. 2. Lacerated wound parietal area right side middle and scalp 5 cms. x left side 4 cms. x 1 complaint depth x 1 complaint width. 3. Lacerated wound parietal area right side in front of 2nd wound 3 x 1 x 1 cms. 4. Sutured wound forehead left side above the left eye 2 cms. long. 5. Pain right elbow. 19. Similarly P.W. 7-Dr. Girijatai has also recorded the injuries found on Sunitha at KIMS Hospital where she was shifted. Injuries found on Avinash are recorded by Dr. Panchaxarappa which are as follows.- 1. Sutured wound left eyebrow 2 cms. 2. Sutured wound reiterated, Eyebrow 2 cms. 3. Sutured wound over the forehead on either side of midline 2 cms. 20. The autopsy report of Akash reveal the following injuries as recorded by doctor who conducted the autopsy: 1. Compound communicated fracture of left occipital and left parietal bone. 2. Left Occipital lobe injured. 3. Left Parietal lobe injured. 21. No doubt, we see that the injuries suffered by Sunitha on the vital part of the body i.e., occipital bone but it must be also noticed that the prosecution is not very clear as to which object was used by the accused to cause such injuries. Three objects have been seized by the prosecution as weapons of assault namely, one Eelige mane and two knives. No evidence is found establishing as to which object was used to cause injuries to which of the victims. The fact that accused had caused single injury on the person of his wife Sunitha is further reaffirmed by her own statement. We shall-therefore consider whether acquittal of the accused for the offence under Section 307 levelled against him regarding assault on Sunitha is justified. 22. Provision of Section 307 would certainly come into play, if the accused either had intention or knowledge that the injuries causing was likely to result in death. We shall-therefore consider whether acquittal of the accused for the offence under Section 307 levelled against him regarding assault on Sunitha is justified. 22. Provision of Section 307 would certainly come into play, if the accused either had intention or knowledge that the injuries causing was likely to result in death. Consequently, it must also be shown that the accused had indulged in such act deliberately. In the instant case, it is seen that the accused had full opportunity to cause such injuries as were likely to sniff life of Sunitha. But the fact show that the accused had dealt with only one blow and did not attempt further assault so as to do away with her life. Therefore, the intention to commit her murder is absent. The injuries are fracture of the occipital bone but the fact remains that the opportunity and willingness to cause such injury is not fully established. In the circumstances, the learned Sessions Judge was right in concluding that the charge for the offence under Section 307 was not established and has scaled it down under Section 324 of IPC for causing grievous injuries on the person of Sunitha. 23. We shall now come to the principal charge of the offence under Section 302 of IPC. In order to sustain charge under Section 302 of IPC, the prosecution has to establish the ingredients of the offence under Section 300. Section 300 also needs to be read along with 299 for proving culpable homicide not amounting to death. We are now concerned with the description as found in 3rd and 4th circumstances as exceptions under Section 300. But certainly in the fact situation of this case, our attention is drawn to the explanation provided under Section 300. Exception 1 postulates that when culpable homicide is not a murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 1 postulates that when culpable homicide is not a murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. Exception 2 postulates culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. 24. In the instant case, the prosecution itself has levelled charge against the accused that he was in a severe depression being unable to have a regular source of income as he sustained loss in medical practice. He was therefore not in a proper senses when the alleged incident occurred. The prosecution appears to be under impression that Exception 1 covers only when provocation is supplied to the offender but the circumstances under second part of Exception 1 includes when a person loses his self control. In the instant case, the case falls under that category. However, the learned Sessions Judge finds that the case falls under Section 304, Part II of IPC. 25. Considering the over all circumstances in this case, the question now is whether really Section 304, Part II of IPC would sustain the charge against the accused. Provision of Section 304 reads that whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. In the instant case, learned Sessions Judge noticed from the evidence of witnesses that accused could be said to have knowledge that by that act, he was causing death but the intention to commit murder of his own son is conspicuous by absence. Therefore, considering the nature of punishment prescribed for offence under Section 300 of IPC, the Sessions Judge has rightly accepted the clinching evidence to establish that he did not have clear intention to commit murder of his son. The learned Sessions Judge has noticed the circumstances which made the accused commit such assault on the family members. That itself showed that he was not mentally stable and indulged in act of harming his own loved ones. 26. The charge of murder virtually is lacking. Therefore, we find that the learned Sessions Judge was right in holding that there was lack of intention. The fact that prosecution itself says accused was mentally disturbed, the offence does comes within Section 300 of IPC and falls within the ambit of Section 304 of IPC. The learned Sessions Judge has also examined the other attending circumstances which show the accused could be attributed with knowledge that by that act, he was causing death and not intention to cause murder. 27. As had the impugned judgment been challenged by the accused, it was possible for us to consider the fact that the evidence tendered by the prosecution was not very clinching to establish the said fact because there was no eye-witness to it. Now it is well-settled by the Apex Court that when acquittal of the accused by the Trial Court is challenged, the Appellate Court i.e., High Court would be slow in reversing a judgment of acquittal as the accused enjoys two presumptions of innocence under common law that he is innocent that presumption gets fortified by the acquittal recorded by the Trial Court. 28. In the instant case, the reasons assigned by the Sessions Judge are justified in the circumstances and the evidence supports such conclusion. The ultimate conclusion of the learned sessions acquitting him for the offence under Section 302 and convicting him under Section 304, Pari II of IPC is well-founded. We find no reason to interfere with the said finding. It is also noticed that the question of enhancement of session sentence could have been considered if the state had filed appeal under Section 377 of Cr. We find no reason to interfere with the said finding. It is also noticed that the question of enhancement of session sentence could have been considered if the state had filed appeal under Section 377 of Cr. P.C., but State has not done so. 29. In the result, we confirm the judgment passed by the learned Sessions Judge, Gadag in S.C. No. 6 of 2007 as also the sentence imposed upon the accused. The appeal of the State therefore is dismissed as devoid of merits. 30. The accused has been taken into custody pursuant to the order passed by this Court and is presently lodged in District Prison, Gadag. We therefore direct the jail authorities that the accused shall be set at liberty forthwith unless his detention is required in any other case. 31. We direct the Registry to communicate the operative portion of this judgment to the jail authorities and also issue a copy of this order to the learned Counsel for the respondent. 32. We place on record, able professional assistance rendered by Sri Bahubali N. Danawade, amicus curiae. We therefore fix his remuneration at Rs. 5,000/- (Rupees five thousand only), which the registry shall ensure to pay expeditiously.