Judgment Sushma Shrivastava, J. ( 1. ) Appellant has preferred this appeal challenging his conviction and order of sentence passed by Sessions Judge, Damoh in S.T.No.112/99, decided on 29.09.2000. ( 2. ) Appellant has been convicted under Section 302 of IPC for committing murder of his wife Meera @ Mayarani and sentenced to imprisonment for life with fine of Rs.300/-, in default rigorous imprisonment for three months, by the impugned judgment. ( 3. ) According to prosecution, on 4.11.98 about 10 Oclock in the morning at village Umrav, appellant was cutting black plum tree standing in front of his house, which was objected to by his wife Meera @ Mayarani (hereinafter referred to as the deceased). This enraged the appellant and he threatened his wife that he would cut and kill her. Thereafter appellant walked away towards the village and asked his wife to cook food, as he wanted to go to Bandakpur. When Meera @ Mayarani was cooking food inside her dwelling hut, appellant came there, began taking meals and asked for water from his daughter Bhaggobai. The girl, took sometime in giving water, appellant gave her beating with small stick and then went inside and assaulted his wife Meera @ Mayarani by a wooden pestle (ewlj) on her head. As a result, her head got ruptured and she fell down. Appellant then came out and fled away. Bhaggobai, the daughter of deceased, who witnessed the incident, started weeping and screaming. On hearing her screams, her two sisters, who had gone to the field, and other villagers came there and found Meera @ Mayarani lying injured and dead. ( 4. ) The FIR of the incident was lodged by village Kotwar Ganku at Police Station Pathariya, District Damoh, on the basis of which an offence was registered against the appellant and was investigated. Merg intimation was also recorded at his instance and merg inquest report was prepared. The dead body of deceased Meera @ Mayarani was sent for postmortem examination. Blood stained earth and plain earth was seized from the spot. The spot map was also drawn. During investigation, the pestle (ewlj) used in the commission of offence was seized at the instance of appellant. His blood stained clothes were also seized. Blood stained clothes of the deceased were also seized by the Police. The seized articles were sent for forensic examination. The spot map was also drawn. During investigation, the pestle (ewlj) used in the commission of offence was seized at the instance of appellant. His blood stained clothes were also seized. Blood stained clothes of the deceased were also seized by the Police. The seized articles were sent for forensic examination. After due investigation, appellant was prosecuted under Section 302 of IPC and was put to trial. ( 5. ) Appellant abjured the guilt and pleaded innocence and also took the plea of insanity. ( 6. ) Learned Sessions Judge, after trial and upon appreciation of the evidence adduced in the case, rejected the plea of insanity set up by the appellant and found him guilty for committing murder of his wife under Section 302 of IPC, convicted and sentenced him as aforesaid by the impugned judgment, which has been challenged in this appeal. ( 7. ) We have heard learned counsel for the parties. ( 8. ) It was no longer disputed that deceased Meera @ Mayarani met a homicidal death. It is also reflected from the medical evidence of Dr. B.P. Ahirwal (P.W-6) that deceased died of head injury. Dr. B.P. Ahirwal (P.W-6), who conducted the postmortem examination on the dead body of deceased, found antemortem lacerated wound 8cm x 3cm muscle deep and 3cm x 3cm muscle deep over occipital region with depressed fracture of occipital bone and destruction of brain matter. A contusion measuring 3cm x 1cm over forehead towards left side was also found. In the opinion of Dr. B.P. Ahirwal (P.W-6), the cause of death of Meera @ Mayarani was coma as a result of fracture of the skull bone and destruction of brain. ( 9. ) There are no reasons to discard or disagree with the aforesaid medical evidence, which remained unrebutted and unchallenged. It is thus clearly evident that death of deceased Meera @ Mayarani was homicidal in nature. ( 10. ) Learned counsel for the appellant, however, submitted that the trial court gravely erred in rejecting the plea of insanity put forth by the appellant and failed to consider that even after the occurrence appellant was treated for mental disease like schizophrenia, and erroneously convicted him without there being any cogent evidence against him. ( 10. ) Learned counsel for the appellant, however, submitted that the trial court gravely erred in rejecting the plea of insanity put forth by the appellant and failed to consider that even after the occurrence appellant was treated for mental disease like schizophrenia, and erroneously convicted him without there being any cogent evidence against him. In the alternative, it was submitted that appellant had no motive or intention to kill his wife and his case would not travel beyond the ambit of Section 304 Part II of IPC. ( 11. ) Learned counsel for the State, on the other hand, justified and supported the conviction of the appellant. ( 12. ) We have gone through the entire evidence on record. ( 13. ) The main evidence is that of Bhaggobai (P.W-1), the daughter of the deceased. Bhaggobai (P.W-1) is a child witness aged about six-seven years, who was present at the time of occurrence and witnessed the entire episode. Bhaggobai (P.W-1) categorically deposed in her evidence that appellant, her father had assaulted her mother by means of pestle (ewlj) on her head, as a result of which she died. According to Bhaggobai (P.W-1), when appellant assaulted her mother by pestle on her head, she was present there. Bhaggobai (P.W-1) further deposed that her mother had prevented the appellant from cutting black plum tree, therefore, he had assaulted her by pestle and when she screamed, her uncle Jagdish and others had come there. ( 14. ) Jagdish (P.W-4) also corroborated this fact that on hearing the screams of Bhaggobai (P.W-1), he had gone to the place of appellant and found his wife lying injured and dead and Bhaggobai (P.W-1) told him that appellant had assaulted her mother by pestle. Imartibai (P.W-2), another daughter of the deceased, also deposed that when she came back with goats from the field, she saw the appellant going towards the hillock and found her mother dead at home and she was informed by Bhaggobai (P.W-1) that her mother was assaulted by appellant by wooden pestle. ( 15. ) Karan Singh (P.W-3) has also deposed that on hearing the screams of the children, he had gone to the place of appellant and found his wife lying dead with head injury and he had come to know that appellant had assaulted him. ( 15. ) Karan Singh (P.W-3) has also deposed that on hearing the screams of the children, he had gone to the place of appellant and found his wife lying dead with head injury and he had come to know that appellant had assaulted him. Village Kotwar Ganku (P.W-9) also testified the lodging of the FIR (Ex.P-6), which was recorded by Sub-Inspector S.C.Sharma (P.W-12) at Police Station, Pathariya. ( 16. ) Although some of the other witnesses like Radhabai (P.W-5), Munnalal (P.W-8) and Ramprasad (P.W-10) did not adhere to their statements that appellants daughter Bhaggobai (P.W-1) had informed them that her mother (deceased) was assaulted by appellant, there is clear cut evidence of Bhaggobai (P.W-1) to the effect that appellant had assaulted the deceased by pestle (ewlj) and thereby caused her death. ( 17. ) Bhaggobai (P.W-1) was extensively cross-examined, but nothing has been elicited so as to distrust her statement that appellant had assaulted her mother (deceased) by pestle. On the other hand, she gave a detailed narration of the incident during her cross-examination. Bhaggobai (P.W-1) stated in her cross- examination that when appellant assaulted her mother by pestle, she was cooking food and appellant was taking food and he assaulted her too by small stick when she took time in giving him water. According to Bhaggobai (P.W-1), appellant had to go to Bandakpur and her mother was taking time in cooking food, therefore, he assaulted her by pestle. She also deposed that there was none else present at that time in her house and as soon as she cried and screamed, her uncle etc. had come there. The statement, as given by Bhaggobai (P.W-1), both in chief-examination and cross- examination is found to be clear, cogent and trustworthy and it has a ring of truth. Her evidence on the whole is found to be natural, credible and she does not appear to be a tutored witness. ( 18. ) Needless to emphasize that Bhaggobai (P.W-1) is also daughter of the appellant, as that of the deceased, so there can hardly be any doubt that she would give a tutored version so as to falsely implicate her father. In fact, upon careful scrutiny of the entire evidence of Bhaggobai (P.W-1), her evidence is found to be natural, reliable and trustworthy. Although, Bhaggobai (P.W-1) is a child witness, but her evidence cannot be rejected on this ground. In fact, upon careful scrutiny of the entire evidence of Bhaggobai (P.W-1), her evidence is found to be natural, reliable and trustworthy. Although, Bhaggobai (P.W-1) is a child witness, but her evidence cannot be rejected on this ground. As held by the Apex Court in the case of Panchhi and others Vs. State of U.P. reported in 1998(7) Supreme Court Cases page 177 it is not the law that if a witness is child, his evidence shall be rejected even it is found reliable, though the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is an easy prey to tutoring. ( 19. ) Moreover, there is corroborative evidence of Imartibai (P.W-2) and Jagdish (P.W-4), who reached there immediately after the occurrence on hearing the screams of Bhaggobai (P.W-1), to whom she narrated that her mother was assaulted by appellant by means of pestle. Their evidence also lends assurance to the version of the child witness Bhaggobai (P.W-1) ( 20. ) Thus, in view of the evidence available on record, we have no hesitation in accepting the finding recorded by the trial court that appellant assaulted his wife Meera @ Mayarani by means of pestle and thereby caused her death. ( 21. ) As regards the plea of insanity, it is well settled that when a plea of legal insanity is set up, it must be proved that at the time of commission of the offence the accused, by reason of unsoundness of mind, was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law. The Apex Court in the case of Dahyabhai Chhaganbhai Thakkar Vs. State of Gujarat reported in AIR 1964 Supreme Court page 1563 held that there is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence- oral, documentary or circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings. The Apex Court further held that crucial point of time for ascertaining the state of mind is the time when the offence was committed. The Apex Court further held that crucial point of time for ascertaining the state of mind is the time when the offence was committed. Whether the accused was in such a state of mind as to be entitled to benefit of Section 84 of Indian Penal Code can only be established from the circumstances, which proceeded, attended and followed the crime. ( 22. ) In view of the legal position enunciated above, the core question to be examined is whether the appellant could establish his state of insanity at the time of commission of the offence in the instant case. ( 23. ) Although Bhaggobai (P.W-1) and Imartibai (P.W-2) as well as Sukhlal (P.W-13) admitted in cross-examination that appellant was insane and he also used to take treatment of the insanity, but there is no medical evidence on record to indicate that before or at the time of commission of offence, appellant was suffering from any mental disorder or insanity so as to be incapable of understanding the nature of his act. Though the evidence of Tejsingh Kushwaha, Jailer, District Jail Damoh (D.W-1) indicates that appellant was treated in the Mental Hospital, Gwalior from 6.12.98 to 18.6.99 and as per doctors certificate (Ex.D-3), appellant was treated for schizophrenia during this period, but again there is no such positive medical or other evidence on record to indicate that appellant was suffering from any such mental disease or insanity at the time of commission of the offence on 4.11.98, so as to be capable of understanding the nature of his act. On the other hand, it is revealed from the evidence of Bhaggobai (P.W-1) that appellant had fled away after the incident of assault at his wife. It also transpires from her evidence that appellant wanted to go to Bandakpur and the deceased was taking time in cooking food, he, therefore, assaulted her. His conduct in disappearing from the spot after the occurrence indicates that he understood the nature of his act and therefore, in order to save himself he escaped and fled away. The trial court has also given the cogent reasons for drawing an inference that appellant was sane enough at the time of commission of the offence and was capable of knowing the nature of his act. The trial court has also given the cogent reasons for drawing an inference that appellant was sane enough at the time of commission of the offence and was capable of knowing the nature of his act. The mere statement of Jagdish (P.W-4) that Bhaggobai told him that appellant assaulted her mother in a fit of insanity, in absence of any such cogent evidence and circumstances justifying such inference, cannot be taken to hold that appellant acted in a fit of insanity. The plea of insanity of the appellant has, therefore, been rightly rejected by the trial court. ( 24. ) The last submission of learned counsel for the appellant has been that the appellant had no motive or intention to kill the deceased and he acted under an impulse, being enraged by delay in cooking food by his wife and in a heat of passion upon sudden quarrel, without any premeditation he gave a single pestle blow to deceased which resulted into her death, his case would, therefore, come within the ambit of Section 304 of IPC. Reliance was also placed in this behalf on the decision rendered in the case of Joseph Vs. State of Kerala reported in AIR 1994 Supreme Court page 34. ( 25. ) We have considered the aforesaid submission. It transpires from the evidence of Bhaggobai (P.W-1), the sole eyewitness to the incident that some dispute occurred between the appellant and his wife over cutting of black plum tree standing in front of their house prior to the occurrence. It is further revealed from her evidence that the appellant wanted to go to Bandakpur and he was getting late, as his wife was delaying in cooking food, which enraged him and he assaulted his wife in a heat of passion on the spur of moment without any premeditation and gave a solitary blow by pestle on her head resulting into her death. ( 26. ) In the aforesaid facts and circumstances of the case, we are of the considered opinion that the act of the appellant would come within the purview of Section 304 Part I of IPC. The conviction of the appellant under Section 302 of IPC, therefore, deserves to be altered to one under Section 304 Part I of IPC. ( 27. ) As regards the sentence, appellant has already undergone imprisonment for more than ten years. The conviction of the appellant under Section 302 of IPC, therefore, deserves to be altered to one under Section 304 Part I of IPC. ( 27. ) As regards the sentence, appellant has already undergone imprisonment for more than ten years. Therefore, custodial sentence of ten years rigorous imprisonment with fine of Rs.300/-, as already imposed by the trial court, in default further imprisonment for three months, would meet the ends of justice in the facts and circumstances of the case. ( 28. ) Appeal is, therefore, partly allowed. The conviction of the appellant under Section 302 of IPC is altered to one under Section 304 Part I of IPC and life imprisonment awarded to him is modified and reduced to the period of rigorous imprisonment for ten years, with fine of Rs.300/-, in default further rigorous imprisonment for three months. ( 29. ) As appellant has already undergone the sentence imposed on him, he shall be released forthwith, if not required, in any other case. ( 30. ) Appeal stands allowed to the extent indicated above.