JUDGMENT A.R. Joshi, J. 1. Heard learned appointed advocate Mr Murtaza Najmi for the appellant -accused. Also heard learned Additional Public Prosecutor for the State. 2. The present appeal is preferred by the appellant who is presently in jail since the day of his arrest, challenging the judgment and order dated 23rd May, 2007 in Sessions Case No. 167 of 2006. The appellant -accused was convicted for the offence under section 302 of IPC and was sentenced to suffer imprisonment for life and to pay fine of Rs.1000/ - in default to suffer imprisonment for two years. 3. The case of the prosecution, in nut -shell, is as under: The incident of assaulting and killing the victim, wife of the present appellant, occurred on the night between 1 and 2nd September, 2005. About three to four days prior to this date, the appellant and his wife the victim came to reside in the hutment owned by one Jijabai Sonwane PW 3. They took the room on rent of Rs.300/ - per month with deposit of Rs.200/ -. Since then for these three days the appellant and his wife had frequent quarrels and on the next day of their stay landlady Jijabai Sonawane PW 3 asked the appellant to leave the place. However, he requested the landlady to allow them to stay. On the night of the incident the victim was in her house and apparently the accused was also in the house as he came at about 9:00 p.m. or so. This was witnessed by PW 3 landlady. According to her, when she had been to one neighbour Vanita Gaikwad PW 5 for some work, she had noticed the appellant - accused had entered the room. Thereafter, only on the next day morning PW 3 noticed that nobody was awakened in the said room. As such PW 3 called neighbouring woman Vanita Gaikwad PW 5 and with her help the door of the room was opened and they found the victim woman by name Chhaya lying on the ground inside the room. She had sustained some injuries at the backside of her neck and also on the shoulder and one injury was on the eyebrow and blood had oozed from the said wound and reached upto the ear. Both these women noticed that the victim had died. She had sustained some injuries at the backside of her neck and also on the shoulder and one injury was on the eyebrow and blood had oozed from the said wound and reached upto the ear. Both these women noticed that the victim had died. Even by that time PW 1 Sharad Sonawane and PW 2 Smt. Alka Sonawane son and daughter -in -law of PW 3 arrived as they were also seen along with PW 3. They also noticed the dead body of the victim and according to their evidence on the earlier night they heard quarrel between the appellant and his wife Chhaya. On noticing dead body of Chhaya, PW 1 Sharad went to the concerned police station and gave intimation. Said intimation was reduced into writing at Exh.9 and ADR was registered by the police. Since then the appellant accused remained absconding and his whereabouts could not be found. When the investigation on the said ADR was handed over to PW 6 Hodge I.O., he visited the spot and drew spot panchnama which is Exhibit 21, also the inquest panchnama on the dead body of victim was conducted and in which PW 2 Smt. Alka Sonawane took part as a lady pancha. Dead body of victim was sent for postmortem and postmortem report received from Dr Govind Kulkarni PW 4 is at Exh.15. The injuries observed by Dr Govind PW 4 during the postmortem are of much significance. In order to ascertain the gravity of the offence and as to a number of blows given on the victim, the substantive evidence of PW 4 Dr Kulkarni is to the following effect: - 1. Contused abrasion over nape of neck below hair line 2"x1" with surrounding brownish black discoloration on dissection underneath haematoma and contused muscle seen with fracture of spines process and body of second and third cervical vertebra noted with underlying contused spinal cord and haematoma. Abnormal mobility of neck noted; 2. Contused abrasion over right shoulder 2"x2" clotted blood seen, no fracture underneath; 3. CLW over medial border of left eye brow 1/2 x 1/4" Clotted blood seen over left eye and cheek. All these were antemortem injuries. 4. After completion of investigation, charge sheet was filed. Abnormal mobility of neck noted; 2. Contused abrasion over right shoulder 2"x2" clotted blood seen, no fracture underneath; 3. CLW over medial border of left eye brow 1/2 x 1/4" Clotted blood seen over left eye and cheek. All these were antemortem injuries. 4. After completion of investigation, charge sheet was filed. However, prior to that there was a look out notice for the present appellant -accused and even proclamation was issued but his whereabouts could not be found because all along he was absconding. Subsequently, he was arrested at the instance of PW 8 Sanjay an estate agent. He gave clue to the police regarding whereabouts of the present appellant -accused who was arrested on 7th July, 2006 i.e. after about ten months of the incident. Said PW 8 Sanjay is also the witness who deposed as to he introduced the present appellant -accused to PW 3 landlady for acquiring the room on rental basis for the appellant. 5. During the trial total nine witnesses were examined before the trial Court in Sessions Case No. 167 of 2006 and finding the material brought before the trial Court trustworthy and sufficient to establish the charge the appellant -accused was convicted. 6. During the arguments, the submission on behalf of the appellant by the learned appointed Advocate was that homicidal death is accepted, even taking of the room on rent is accepted. Even the relations as to husband and wife of the appellant and the victim are accepted. But it is strongly submitted that the present case is required to be viewed in different perspective inasmuch as it is not the murder but a culpable homicide not amounting to murder. To substantiate this argument, it is further submitted that the fact of the present case can bring the same under Exception 4 to Section 300 of IPC, inasmuch as there was no premeditation, there was a sudden fight and in a heat of passion upon a sudden quarrel the appellant had hit his wife only once at the back of her neck and moreover he had not acted in a cruel or unusual manner. In order to further this argument our attention is brought towards the substantive evidence of PW Nos. 1 to 3 and 5. It is submitted that according to these witnesses there was a quarrel between the appellant and his wife Chhaya. In order to further this argument our attention is brought towards the substantive evidence of PW Nos. 1 to 3 and 5. It is submitted that according to these witnesses there was a quarrel between the appellant and his wife Chhaya. By taking shelter of the contents of the postmortem and the substantive evidence of Dr PW 4 Govind Kulkarni it is submitted that apparently there was only one blow which caused the injury no. 1 mentioned in column no. 17 and other two injuries were due to fall of the victim or lying of the victim on the ground. It is further brought to our notice that definitely there was no any weapon used to assault the victim and further argued that the mere abscondance of the appellant cannot be taken as a circumstance leading to the decision that it is a case of murder. 7. Counter to the above argument as to whether the case is required to be diluted from Section 302 to 304 and that also either part I or part II, learned APP for the State submitted that admittedly there was no weapon used by the appellant or at the most there is no material that he was armed with any weapon. It is further submitted on behalf of the State that the abscondance of the appellant -accused is of much significance and goes to show his conduct as a guilty person. It is further argued that at the most the case if at all to be diluted to Section 304 from Section 302 of IPC then it will have to be taken under part I of Section 304 inasmuch as the intention of the appellant to kill his wife is required to be accepted for the simple reason that he did not try to save his wife even after the assault under the heat of passion and in a sudden quarrel. The factual position that he absconded not for few days but for more than ten months shows that he wanted to do away with his wife. 8. We have given careful though to the rival submissions as above and in our considered view the substantive evidence of PW Nos. The factual position that he absconded not for few days but for more than ten months shows that he wanted to do away with his wife. 8. We have given careful though to the rival submissions as above and in our considered view the substantive evidence of PW Nos. 1, 3 and 5 point out to quarrel and sudden fight between the appellant and his wife and the injuries sustained by the victim as mentioned in the postmortem report indicate that apparently there was only one blow given on the back of the neck and further show that no any weapon was used by the appellant. Definitely, the intention as argued by the learned A.P.P . is required to be gathered as the appellant had intended the death of his wife due to such assault and as such in our considered view the present matter is required to be brought under Section 304 Part I of IPC and to that extent the impugned judgment and order is required to be altered. 9. Before parting with the judgment, we wish to place on record our appreciation for Advocate Murtaza Nazmi who was appointed by the Legal Services Committee to represent the appellant in this appeal. He has very ably conducted the matter. We quantify legal fees to be paid to him in this appeal by the High Court Legal Services Committee at Rs.5000/ -. 10. In the result, present appeal is disposed of with the following order: ORDER (a) Criminal Appeal No. 730 of 2008 is partly allowed; (b) The conviction of the appellant -accused for the offence punishable under Section 302 is brought down to conviction under Section 304 Part I of IPC. and instead of sentencing him for the imprisonment for life he has been sentenced to RI for ten years. Set of be given to the appellant -accused for the period he was in the custody. The fine amount of Rs.1000/ - shall sustain so also in default sentence on non payment of fine, shall also sustain. (c) The present order be communicated to the appellant -accused through the concerned jail authority.