JUDGMENT K.L. MANJUNATH, J.-The appellant is questioning the legality and correctness of the judgment of conviction and order of sentence passed by the Addl. Sessions Judge, Hassan, dated 28.2.2008 in S.C. No. 166/2005. 2. The appellant was tried for the offence punishable under Sections 302 and 307 of IPC. He was convicted for the offence punishable under Sections 302 and 326 of IPC and has been acquitted for the offence punishable under Section 307 of IPC and has been sentenced to undergo imprisonment for life for the offence punishable under Section 302 of IPC and to pay fine of Rs. 1,000/- and in I.D. to pay fine to undergo S.I. for two months. He is sentenced to undergo simple imprisonment for five years and to pay fine of Rs. 500/- I.D. to pay fine to undergo S.I. for one month for the offence punishable under Section 326 of IPC. 2.1. The case of the prosecution in brief is that deceased Parvathi Bai was the second wife of the appellant. He had deserted his first wife but his two sons Shivarajanaika and Rajashekara born to his first wife were with him. Two daughters, by name Pavithra and Pushpa, are born to the deceased Parvathi Bai. When the first wife had left the company of the appellant, her two sons were of tender age. The deceased Parvathi Bai and the appellant were living together with all four children. Fifteen days prior to 13.7.2005 deceased Parvathi Bai alongwith her two daughters had come to the house of the complainant-PW1-Jayabai, mother of the deceased, stating that she cannot look after the two sons of the first wife of the appellant. On 12.7.2005 the deceased received a call from the appellant calling upon the deceased to attend the Court at Arasikere on 13.7.2005 which case was filed by the first wife of the appellant against the appellant and the deceased-Parvathi Bai. On 13.7.2005 morning the deceased-Parvathi Bai, PW1-Jayabai alongwith two minor daughters of the appellant had been to Arasikere Court where the appellant had also joined them. After the hearing of the Court was over all of them returned to the house of the appellant. At night the appellant, deceased Parvathi Bai, PW1-Jayabai and two minor daughters of the appellant were sleeping in the hall side by side. The two sons were sleeping on the attic of the house. After the hearing of the Court was over all of them returned to the house of the appellant. At night the appellant, deceased Parvathi Bai, PW1-Jayabai and two minor daughters of the appellant were sleeping in the hall side by side. The two sons were sleeping on the attic of the house. It is further the case of the prosecution that when the deceased and the appellant were sleeping alongwith PW1 and two minor daughters, there was a quarrel between the appellant and the deceased Parvathi Bai. The appellant was questioning his wife as to why she was not looking after his two children born to his first wife, for which the deceased had told the appellant that it is not possible for her to look after the two sons born to the first wife of the appellant and she asked the appellant to take care of those two sons and live with her two sons. Having enraged by the same appellant took a knife and stabbed her which was witnessed by PW1-Jayabai and when she made an attempt to rescue her daughter, the appellant also injured her with the knife and in order to escape from the clutches of the accused, deceased and PW1 alongwith PW9 Pavithra ran out the house and when the deceased came out of the house, the appellant took a stone and threw the same on the head of the deceased. As a result of which she succumbed to the injuries. 2.2. PW1 having seen the incident became unconscious and she took her grand daughter PW9 and stayed in front of a petty shop throughout the night and on the morning of 14.7.2005 she went to the Arasikere Rural police and lodged a complaint as per Ex.P1 and the same was recorded by station house officer between 6.00 a.m. to 7.00 a.m. and registered a case in Crime No. 92/2005 for the offences punishable under Sections 302 and 307 of IPC. 2.3. PW1 was sent by the police for treatment and she was treated by PW2-Dr.Sumangala. The appellant had also sustained injuries and he was treated by PW2 Dr. Sumangala. Thereafter, inquest was drawn, body was sent for post mortem examination. Post mortem was conducted by PW14-Dr.Chakravarthy and report was issued as per Ex.P42. After investigation charge sheet was filed. 2.4. 2.3. PW1 was sent by the police for treatment and she was treated by PW2-Dr.Sumangala. The appellant had also sustained injuries and he was treated by PW2 Dr. Sumangala. Thereafter, inquest was drawn, body was sent for post mortem examination. Post mortem was conducted by PW14-Dr.Chakravarthy and report was issued as per Ex.P42. After investigation charge sheet was filed. 2.4. The appellant pleaded not guilty before the Sessions Court and he claimed to be tried. In order to bring home the guilt of the accused the prosecution relied upon the evidence of PWs 1 to 27, exhibits P1 to P55, MOs 1 to 12. While answering the statement under Section 313 Cr.P.C. the accused denied the incriminating circumstances found against him in the evidence of the prosecution. The evidence of the accused was total denial. 2.5. The learned Sessions Judge after hearing the Public prosecutor and defence counsel formulated the following points for its consideration: 1. Whether the prosecution proves that the deceased Parvathi Bai died a homicidal death? 2. Whether the prosecution proves that on 13.07.2005 at about 11.30 p m, in G. Shankaranahalli Tandya Village, Kasaba Hobli Hassan Taluk the accused committed the murder of Parvathi Bai, thereby committed the offence punishable under Section 302 of Indian Penal Code beyond all reasonable doubts? 3. Whether the prosecution proves that on the above said date time and place the accused has attempted to commit the murder of the complainant-Jayabai thereby committed the offence punishable under Section 307 of Indian Penal Code beyond all reasonable doubts? 4. What order ? 2.6. After appreciation of the evidence in detail, the Sessions Judge came to the conclusion that the prosecution has failed to bring home the guilt of the accused for the offence punishable under Section 307 of IPC and he further held that the prosecution has proved that the appellant has committed the offence punishable under Section 302 of IPC. Accordingly, convicted and sentenced him as aforesaid. This judgment is called in question in this appeal. 3. We have heard the counsel for the appellant and the learned Addl. SPP for the State. 4. Accordingly, convicted and sentenced him as aforesaid. This judgment is called in question in this appeal. 3. We have heard the counsel for the appellant and the learned Addl. SPP for the State. 4. Though the appellant's counsel has contended that the prosecution has failed to bring home the guilt of the accused for the offence under Section 302 and 326 of IPC, alternatively he contends that the appellant never intended to commit murder of his wife Parvathi Bai, but on account of sudden provocation the appellant assaulted the deceased as she was refusing to look after two minor sons born to his first wife. In such circumstance the death of Parvathi Bai cannot be treated as a murder and it amounts to culpable homicide not amounting to murder and therefore, he requests the Court to modify the judgment in accordance with law. According to him the appreciation of evidence by the Sessions Court is not proper and it is perverse. Therefore, he requests this Court to set aside the conviction and order of sentence. 5. Per contra, Mr. Nawaj, learned Addl. SPP submits that the prosecution has let in clear evidence and has proved beyond reasonable doubt the guilt of the accused for having committed the offence punishable under Section 302 and 326 of IPC because the injuries inflicted by the appellant on the body of the deceased with MO 10 and MO1 is supported by the evidence of PW1- the mother of the deceased, PW9-daughter of the deceased and PW14 medical officer who conducted the autopsy and the injuries found on the body of the deceased Ex.P42-post mortem report clinches the evidence. Therefore, he contends that the appreciation of evidence is proper and does not call for any interference. 6. Having heard the counsel appearing both sides, since the appellant's counsel has not disputed the death of deceased-Parvathi Bai as homicidal the points that arise for our consideration are: "Whether the prosecution has made out a case for conviction of the appellant for the offence punishable under Section 302 and 326 of IPC? or Whether it falls under any other exception as found in Section 300 of IPC as contended by the learned counsel for the appellant?" 7. We have seen the entire evidence let in by the prosecution. PW1-Jayabai the mother of the deceased is the complainant. Ex.P1 is the complaint. or Whether it falls under any other exception as found in Section 300 of IPC as contended by the learned counsel for the appellant?" 7. We have seen the entire evidence let in by the prosecution. PW1-Jayabai the mother of the deceased is the complainant. Ex.P1 is the complaint. On perusal of the complaint it is clear that the appellant married the deceased Parvathi Bai after his first wife deserted him with two tender aged sons. In order to look after the tender aged sons of the appellant he had married the deceased Parvathi Bai. All was well till the deceased gave birth to two daughters-Pavithra and Pusha and thereafter, it appears the deceased was not looking after the welfare of minor sons of the appellant born to his first wife properly as it was difficult for her to look after her four children. 8. It has also come in the complaint of PW1 that from 15 days prior to the incident deceased-Parvathi Bai was residing with her two minor daughters on the ground that it was not possible for her to look after the two sons born through the first wife and it has also come in the complaint that there used be quarrel between the deceased and the appellant on account of the same. 9. It is clearly mentioned in Ex.P1 that the deceased received a phone call from the appellant on 12.7.2005 calling upon the deceased to attend a case in Arasikere Court filed by the first wife of the appellant against the appellant and the deceased. Accordingly, on 13.7.2005 morning PW1, deceased and her two minor daughters went to Arasikere to attend the Court. After attending the Court at Arasikere they returned to the house of the appellant in the evening. After taking food at night the PW1, deceased and two daughters of deceased alongwith the appellant were sleeping in the hall. The two sons of the appellant born to his first wife were sleeping on the attic. It is the specific case of the appellant that at about 10.30 p.m. in the night there was a quarrel between the deceased and the appellant and the appellant had questioned the deceased as to why she was not looking after the two sons born to him through his first wife properly. It is the specific case of the appellant that at about 10.30 p.m. in the night there was a quarrel between the deceased and the appellant and the appellant had questioned the deceased as to why she was not looking after the two sons born to him through his first wife properly. For which the deceased had flatly refused stating that it was not possible for her to look after the two sons of the appellant born to his wife and in turn she asked the appellant to live separately. Apprehending that the deceased is trying to leave him and his two minor sons, being provoked by the statement of the deceased, he stabbed the deceased with MO 18 and when PW1 went to her rescue, she also sustained injuries. 10. In the complaint it is specifically stated that thereafter the deceased and PW1 went out of the house in order to escape from the clutches of the appellant. The appellant threw a stone on the head of the deceased and as a result of which she succumbed to the injuries. 11. We have seen the autopsy report, the injuries found on the autopsy report is as hereunder: I. Facial Injury: (a) A fractured nasal bone with fragments seen. (b) Left maxillary fracture seen on medial end. (c) A compressed fracture with bony fragment of ethmoid and malar bones of nasal bone seen. (d) A loose incisor teeth of lower end first and second. II. Skull Injury: (a) A compressed fracture of left frontal bone of skull. (b) A fracture on right occipital region of skull bone. III. Right Arm: (a) A superficial lacerated injury over right arm. (b) An incised injury over right elbow above exposing the muscle tissue. (c) A chop like injury over medial end of right forearm. (d) An incised injury between index and thumb of right hand. (e) A superficial lacerated injury over right side of chest exposing the muscal tissue. (f) A penetrating wound at the level of second right rib extending to viscera. IV. Left Arm: (a) An abrasion injury over the lateral aspect of left arm. (b) A chop like lacerated injury over lateral side of left arm. (c) An abrasion injury over lateral aspect of elbow. (d) An abrasion injury over left forearm. (f) A penetrating wound at the level of second right rib extending to viscera. IV. Left Arm: (a) An abrasion injury over the lateral aspect of left arm. (b) A chop like lacerated injury over lateral side of left arm. (c) An abrasion injury over lateral aspect of elbow. (d) An abrasion injury over left forearm. PW14-Dr.Chakrapani has deposed that all injuries are ante mortem in nature and that the death was due to shock and hemorrhage due to multiple injuries on the vital parts of the body. The evidence of PW14 is not seriously challenged. Therefore, the death is not seriously disputed by the appellant. The only question is, whether the appellant had any intention to commit murder of the deceased and that on account of sudden quarrel and provocation, he has committed murder and therefore, whether the judgment of conviction punishable under Sections 302 and 326 of IPC has to be brought down to any other provisions of law? 12. So far as this point is concerned as could be seen from the complaint- Ex.P1 given by PW1, the appellant had no intention to commit murder of the deceased because on 13.7.1999, PW1, appellant and the deceased alongwith her minor daughters Pushpa and Pavithra attended the Court at Arasikere, a case filed by the first wife of the appellant against them. Thereafter, PW1, appellant, the deceased and her two daughters returned to the house of the appellant at about 5.00 p.m. They took food at night and while sleeping suddenly quarrel erupted in regard to deceased refusing to maintain the two sons of the appellant born to his first wife. As already stated it has also come in the evidence of PW1 that 15 days prior to 13.7.2005, the deceased had come to the house of PW1 alongwith her two minor daughters, leaving the two sons born to the appellant though his first wife on the ground that it was not possible for her to look after the appellant and his two minor sons. In such circumstances, the appellant was quarrelling with the deceased after the deceased had flatly refused to maintain his two sons born through his first wife. In such circumstances, the appellant was quarrelling with the deceased after the deceased had flatly refused to maintain his two sons born through his first wife. Out of provocation he had inflicted injuries and in the process, he has also sustained injuries, as could be seen from the evidence of PW2-Dr.Sumangala who has issued the wound certificate as per Ex.P6, which would only conclusively prove that due to sudden provocation he had inflicted injuries and he had no intention to commit murder of his wife-the deceased and therefore, the offence will not fall under Section 300 CPC, but it falls within the exception to Section 300 CPC. 13. In the result, the judgment passed by the Sessions Court has to be modified by holding that the prosecution has proved beyond reasonable doubt the guilt of the accused for the offence punishable under Section 304 Part I of IPC and Section 326 of IPC. 14. In the result, we pass the following : ORDER (i) The appeal is allowed in part. (ii) The judgment of conviction passed under Section 326 of IPC and the sentence ordered therein is hereby confirmed. (iii) The judgment of conviction under Section 302 of IPC and the sentence passed therein is modified holding that the appellant is convicted for the offence punishable under Section 304 Part I of IPC. Accordingly, he is sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1,000/- I.D. to undergo further S.I for three months. The appellant is entitled to the benefit of under Section 428 of Cr.P.C.