JUDGMENT 1. - The instant criminal appeal has been filed by the accused appellant under Section 374 (2) of Cr.P.C., against the judgment dated 25.5.2010 whereby the learned Addl. Sessions Jude (Fast Track) No.2, Pali convicted the accused appellant for offence under Section 302 I.P.C. and following sentence was imposed upon him:- (1) Under Section 302 I.P.C., Life imprisonment along with fine of Rs. 5000/- and in default of payment of fine to further undergo one month sunokeimprisonment. 2. As per brief facts of the case, on 10.10.2007 vide Ex.P.18, the Executive Magistrate (Tehsildar), Pali sent a factual report by post under Section 176 Cr.P.C. to the police Station Sadar Pali in which it was informated that on 08.10.2007, one Smt. Geeta W/o Meetha Lal by caste Sirvi aged 23 years, resident of Mandiya was brought to the Bangar Hospital, Pali for treatment from where information is received that she died. Upon reaching Bangar Hospital, Pali, one Sohan Lal gave information at 4.30 p.m. that his brother's wife died all of sudden in suspicious circumstances. The post-mortem has been conducted in which cause of death is shock due to head injury and at that time PW-16 Rana Ram - father of deceased Geeta gave statement and raised suspicion with regard to death of his daughter and prayed that post mortem of the body may be conducted. Upon receiving factual report (Ex.P.18) from Executive Magistrate (Tehsildar), Pali, FIR No.183/2007 was registered at 5.30 p.m. on 10.10.2007 by the SHO, Adarsh Police Station Sadar, Pali and commenced investigation. 3. The post-mortem of the body of Geeta was conducted in Bangar Hospital, Pali and statement of PW-16 Rana Ram S/o Mula Ram was recorded under Section 161 Cr.P.C. in which it is alleged by him that on 08.10.2007 in the morning at about 5.30 - 6 a.m., a phone call was received from deceased Geeta by Mobile No. 9983326898 and Geeta said that in the night her husband Meetha Lal (present accused appellant) assaulted her but Rana Ram asked her that you keep mum and come back home. Rana Ram further alleged that from last one month deceased Geeta was living with him but on 07.10.2007 her husband Meetha Lal (appellant) took her to his house at Village Mandiya. Rana Ram further alleged that from last one month deceased Geeta was living with him but on 07.10.2007 her husband Meetha Lal (appellant) took her to his house at Village Mandiya. It is also stated that from last 7-8 months, the husband of his daughter Meetha Lal (Present accused appellant) was working with him, on 08.10.2007, at about 12.30 p.m., his daughter Geeta informed on phone that in the last night Meetha Lal assaulted her and caused injuries in front of her eyes and other parts of the body. Upon such information Rana Ram asked accused appellant to send Geeta back to his house but Geeta died in suspicious circumstances. The proceedings under Section 176 Cr.P.C. was conducted and upon raising suspicion by the father of deceased and brother of appellant, the post-mortem was conducted and in the post-mortem report, Doctor gave its opinion that cause of death of Geeta is head injury. 4. After registration of FIR, investigation was conducted and after arresting accused appellant on completion of investigation, challan was filed against accused appellant in the Court of Addl. Chief Judicial Magistrate, Pali from where the case was committed to the Sessions Court, Pali but transferred to the Court of Addl. District & Sessions Judge, Fast Track No.2, Pali for trial. 5. The learned trial Court after hearing arguments framed charge under Section 302 I.P.C. against the accused appellant but accused appellant denied the charge and prayed for trial. 6. The trial Court commenced the trial and recorded the statement of 21 prosecution witnesses including author of FIR PW-16 Rana Ram and mother of accused appellant PW-9 Kelki and 27 documents were exhibited in the trial. 7. After recording statement of prosecution witnesses, the statement of accused appellant were recorded under Section 313 Cr.P.C. in which he denied all the allegations levelled by the prosecution witnesses against him and said that FIR has been filed by his father in law Rana Ram upon insisting by the interested persons on the basis of concocted story. 8. In defence, statement of seven prosecution witnesses were recorded and 19 documents were exhibited from the defence side. 9. The learned trial Court finally heard the arguments and on the basis of evidence on record convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for life imprisonment vide judgment dated 25.5.12010. 8. In defence, statement of seven prosecution witnesses were recorded and 19 documents were exhibited from the defence side. 9. The learned trial Court finally heard the arguments and on the basis of evidence on record convicted the accused appellant for offence under Section 302 I.P.C. and passed sentence for life imprisonment vide judgment dated 25.5.12010. This appeal has been filed by the accused appellant to challenge the validity of the impugned judgment on various grounds. 10. Learned counsel for the appellant vehemently argued that there is no allegation with regard to demand of dowry by the accused or his family members, more so, accused appellant and deceased Geeta were living peacefully and at the time of death of his wife Geeta, accused was not in the house. It is further argued that star witness PW-16 Rana Ram submitted the report Ex.P.16 during process of enquiry under Section 176 Cr.P.C. and in the proceedings, no allegation for beating to the deceased with stick by the appellant was levelled. The only allegation was made that on 08.10.2007, telephonically informed by Geeta that in the night, she was given some slaps by the appellant, as such all the allegations are wrong because the allegations does not link the appellant with the alleged incident of beating with stick, which resulted into the death for the reason that at the time of death he was not in the home. Further, it is argued that as per the post mortem report, only one injury was found upon the head of deceased, which is cause of death, therefore, even if it is presumed that deceased was assaulted by the accused appellant on sudden provocation then also it is not a case for conviction under Section 302 I.P.C. 11. Learned counsel for the appellant submits that although the prosecution has failed to prove its case beyond reasonable doubt against the accused appellant because there is no eye witness of the incident and even if the whole prosecution story is accepted then also it is not a case for conviction under Section 302 I.P.C. because accused appellant and his wife were living peacefully and no allegation is made for any quarrel prior to the alleged incident. 12. 12. As per the appellant, it is a case in which the finding of guilty for murder is not sustainable in law because as per the statement of PW-16 Rana Ram - father of deceased Geeta, Geeta informed him that she was assaulted by her husband in the night and on enquiry, the accused appellant Meetha Lal did not give any reply but later on a telephone call was received from Meetha Lal in which it was accepted by him that injury was inflicted upon the head of Geeta by stick and due to that injury, she became unconscious. As per prosecution case one injury was inflicted by the accused appellant upon vital part of the body, due to that Geeta died, there is no allegation for repeated blow, which is evident from the post-mortem report, therefore, the conviction of the accused appellant for offence under Section 302 I.P.C. may be converted to the offence under Section 304 Part-I I.P.C. because as per the prosecution case, the accused appellant was living with his wife at his in-laws house but the day before the incident, he went to his house where occurrence took place. 13. The crux of argument of the counsel for the appellant is that it is a case of culpable homicide not amounting to murder even if the prosecution story is accepted, the incident was occurred in spur of moment on sudden provocation, therefore, the finding of conviction given by the trial Court for offence under Section 302 I.P.C. may be set aside and the conviction may be altered from offence under Section 302 I.P.C. to offence under Section 304 Part I I.P.C. 14. In support of his contentions, learned counsel for the appellant has invited the attention of the Court towards the judgment of Hon'ble Supreme Court in case of Dayanand v. State of Haryana reported in 2008 Cri.L.J. 2975 and in case of Balu S/o Onkar Pund & Ors. In support of his contentions, learned counsel for the appellant has invited the attention of the Court towards the judgment of Hon'ble Supreme Court in case of Dayanand v. State of Haryana reported in 2008 Cri.L.J. 2975 and in case of Balu S/o Onkar Pund & Ors. v. State of Maharashtra, reported in (2015) 42 SCD 343 in which the Hon'ble Supreme Court held that if only one injury is inflicted and there is no repeated blow then the offence can be converted from 302 I.P.C. to 304 Part-I I.P.C. Lastly, it is argued that as per the evidence on record, there is no evidence of motive, as such it appears that in spur of moment due to hot discussion, the incident took place in which the deceased died, therefore, while following the aforesaid judgments, offence may be converted to the office under Section 304 Part-I I.P.C. 15. Per contra learned Public Prosecutor vehemently submitted that it is a case in which prosecution has led reliable and trustworthy evidence to prove the allegation against the appellant for offence under Section 302 I.P.C. While inviting attention towards the statement of PW-13 Tarun Choudhary, it is submitted that the said witness categorically stated that on 7.10.2007 in the morning at 12 O clock, his brother in law (accused appellant) slapped his sister and forcibly asked to go with him at Village Mandiya and on 08.10.2007, he received information that his sister Geeta died. Further, it is argued that admittedly incident took place in the house of accused appellant, which is evident from the statement of PW-9 Kelki - mother of accused appellant himself, in which it is stated by her that marriage of his son was solemnized with the deceased 2 - 3 years back and on 7th , October, 2007, Meetha Lal and Geeta came to the house in village Mandiya and in the evening they took dinner after that what happened in between them she is not having any knowledge and in the morning Geeta died. In view of above facts, it is obvious that incident took place in the house of accused appellant, therefore, the trial Court has rightly arrived at with the finding that deceased was assaulted by the accused appellant in the night of 7.10.2007 and due to the injury caused by the appellant upon the head, she died. In view of above facts, it is obvious that incident took place in the house of accused appellant, therefore, the trial Court has rightly arrived at with the finding that deceased was assaulted by the accused appellant in the night of 7.10.2007 and due to the injury caused by the appellant upon the head, she died. It is also argued that as per the evidence of prosecution, the accused appellant was insisting his wife Geeta to remove pregnancy but she refused to remove the pregnancy. In view of above evidence, it cannot be said that there is no evidence of motive on record, therefore, accused appellant has rightly been held guilty for offence in question. 16. While inviting attention of this Court towards the fact that in the post mortem, total five injuries were found, out of which, injury caused upon the head was cause of death, so also, all prosecution witnesses and post mortem report given by the medical board loudly speaks that prosecution has proved its case beyond reasonable doubt for offence committed by the accused appellant under Section 302 I.P.C. Therefore, the prayer of the appellant to alter the conviction from Section 302 I.P.C. to 304 Part-I I.P.C. deserves to be rejected. 17. After hearing learned counsel for the parties, we have scanned the entire evidence and considered the arguments of learned counsel for the appellant as well as learned Public Prosecutor. Before proceedings further, it is required to be observed that accused appellant and deceased Geeta are husband and wife. It emerges from the facts that to prove the prosecution case, in all statement of 21 prosecution witnesses were recorded and there is no eye witness of the incident and there is no allegation of demand of dowry, more so, the accused appellant was working and living with his father in law along with his wife deceased Geeta. The occurrence took place in the house of accused appellant but plea is taken by the appellant in his defence that he was out of home when Geeta died. The occurrence took place in the house of accused appellant but plea is taken by the appellant in his defence that he was out of home when Geeta died. In spite of above defence, the learned counsel for the appellant at the threshold submits that even if the prosecution case is accepted as a whole then also it is not a case for conviction of the accused appellant for offence under Section 302 I.P.C. because as per statement of PW-16 Rana Ram - father of deceased Geeta informed him in the morning that last night her husband gave slaps to her. 18. In the light of above argument, we have considered the entire evidence. As per statement of PW-16 Rana Ram - father of deceased Geeta, marriage of deceased Geeta was solemnized with the appellant Meetha Lal on 22.4.2004. Deceased Geeta was usually going to her in-laws house and coming back and there was no quarrel for one and half year but thereafter appellant started quarrelling with Geeta because he was not having job and having doubt upon the character of deceased Geeta. Rana Ram PW-16 further said that I called Meetha Lal to his house and asked him to work with him and family of Geeta was residing with his family at Rani. Due to doubt upon the character of Geeta, sometime the appellant assaulted Geeta and insisting her for abortion but Geeta refused to act upon his desire for abortion. For the above reason Meetha Lal was regularly harassing physically and mentally the deceased Geeta and on 7.10.2007 took Geeta to his house at village Mandiya forcibly and Geeta was not ready to go with him. 19. As per the allegation of PW-16 Rana Ram, in the morning of 08.10.2007, he received phone call from Geeta through Mobile No. 9983618225 at about 7.30 am in which Geeta informed that in the night Meetha Lal has assaulted her but it was asked by him to have a patience and I will come Mandiya in the evening. On the same day at about 11 O clock when PW-16 Rana Ram went at his home for taking lunch, upon asking by his wife, he talked to deceased Geeta on her basic phone number 516046 at 11.30, phone call was received by appellant Meetha Lal but he said that I want to talk Geeta. On the same day at about 11 O clock when PW-16 Rana Ram went at his home for taking lunch, upon asking by his wife, he talked to deceased Geeta on her basic phone number 516046 at 11.30, phone call was received by appellant Meetha Lal but he said that I want to talk Geeta. Upon asking, he gave phone to Geeta and Rana Ram asked whether you have taken your meal or not. It was replied that I have taken some meal but due to injury caused to her, blood is coming out and suffering from pain due to the injuries. The witness Rana Ram asked Geeta to instruct Meetha Lal to come at Rani otherwise I will come village Madiya. On the same day, Meetha Lal reached the shop of Rana Ram at about 2.30 p.m. situated at Rani and Rana Ram asked Meetha Lal why you have assaulted your wife Geeta but no reply was given by him. In the evening when he came back to the home, he received phone call from Meetha Lal and he said that he has given blow by stick on her head and due to that injury she became unconscious in the house. 20. After perusing the statement of PW-16 Rana Ram, we have perused the complaint made by Rana Ram also upon which the FIR was registered. In our opinion, Rana Ram PW-16 admitted in his statement in the Court that appellant Meetha Lal forcibly took Geeta to his resident at Village Mandiya on 7.10.2007 and due to injuries caused by him, Geeta died on 8.10.2007. 21. We have also perused the statement of PW-9 Kelki - mother of accused appellant himself. In our opinion, Rana Ram PW-16 admitted in his statement in the Court that appellant Meetha Lal forcibly took Geeta to his resident at Village Mandiya on 7.10.2007 and due to injuries caused by him, Geeta died on 8.10.2007. 21. We have also perused the statement of PW-9 Kelki - mother of accused appellant himself. The mother of accused appellant Kelki PW-9 gave following statement in chief before the Court, which reads as under:- " gkftj vnkyr vfHk;qDr ehBkyky esjk iq= gSA ehBkyky dh 'kknh 2&3 lky igys xkao iM+klyk esa dh Fkh] bldh iRuh dk uke xhrk iq=h jk.kkjke FkkA 'kknh ds ckn ifr&iRuh lkFk&lkFk jgrs FksA vklksi eghus ds 7 rkjh[k dks fnu vLr gksus ls igys ehBkyky vkSj xhrk ef.M;k esjs ls feyus vk;s FksA fQj buds vkil esa D;k gqvk eq>s irk ughaA vt[kqn dgk fd nksuksa us vkil esa jkth[kq'kh [kkuk [kk;k FkkA xhrk dh e'R;q gks pqdh gSA xhrk dh e'R;q dSls gqbZ eq>s irk ugha] eSaus xhrk dh yk'k ns[kh FkhA xhrk dh e'R;q ikyh ds vLirky esa gqbZ FkhA xhrk chekj gks xbZ Fkh mldks rkus vk;s blfy;s mldks ikyh vLirky yk;s FksA " 22. The above statement proves that Geeta became unconscious in the house of accused appellant from where she was taken to the Hospital at Pali but this Court cannot loose sight of the fact that there is no eye witness of the incident, therefore, it seems that the incident took place in spur of moment when appellant and his wife deceased Geeta were in the house at Village Mandiya in which injury was caused to Geeta. There is no evidence of motive on record for committing murder. 23. To consider the prayer of accused appellant to alter the conviction from Section 302 I.P.C. to Section 304 Part-I, I.P.C., we have perused the finding given by the trial Court. The trial Court relying upon the statement of PW-16 Rana Ram and other evidence coupled with the cause of death given in the post mortem report gave finding that it is a case of murder but upon appreciation of evidence on record, we find that the counsel for the appellant is not disputing the incident but submits that after receiving injuries the deceased Geeta talked to her father twice and made complaint, therefore, injuries which are alleged to be caused were not serious in nature. It is also admitted fact that accused went to the house and shop of his father when he was called after incident. Meaning thereby, the conduct of accused appellant loudly speaks that there was a quarrel in between the accused appellant and deceased Geeta when she was forcibly taken by the accused appellant to his house in the village Mandiya where she was not interested to go. 24. In our opinion for the reason that the Geeta was forcibly taken from his father's house, some quarrel might have taken place in between the accused appellant and deceased Geeta at that time in spur of moment the accused appellant caused injury to his wife deceased Geeta, therefore, it is not a case in which it can be said that there was any intention or motive of the accused appellant to kill his own wife, more so, it is a case in which some quarrel took place in between the husband and wife, in which injuries were inflicted by the accused appellant and due to those injuries the deceased died. Upon appreciation of evidence, it is obvious that there is no allegation of demand of dowry or repeated quarrel by the appellant, more so, the accused appellant was living in the house of his father-in-law and was working with father-in-law and on 7.10.2007, he took his wife to his village Mandiya where after taking meal they were in home but in the morning, it is found that there were injury upon the body of deceased, which is reported by her to the father PW-16 Rana Ram and later on she was taken to the Hospital where she was declared dead due to the injuries. 25. Hon'ble Supreme Court in the case of Dayanand (Supra) considering the identical issue that in absence of motive or intention and upon the fact that there was no repeated blow upon the vital part of the body, made following adjudication which reads as under:- "10. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. The crucial question is as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and 'murder' its specie. All 'murder' is 'culpable homicide' but not vice-versa. Speaking generally, 'culpable homicide' sans 'special characteristics of murder is culpable homicide not amounting to murder'. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, 'culpable homicide of the first degree'. This is the gravest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304. 11. The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done - Intention (a) with the intention of causing (1) with the intention of death; or causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or (3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. **** 12. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the 'intention to cause death' is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300. 13. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be. If the assailant had no such knowledge about the disease or special frailty of the victim, nor an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death, was intentionally given. In clause (3) of Section 300, instead of the words 'likely to cause death' occurring in the corresponding clause (b) of Section 299, the words "sufficient in the ordinary course of nature to cause death" have been used. Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 26. The word 'likely' in clause (b) of Section 299 conveys the sense of probable as distinguished from a mere possibility. The words "bodily injury.......sufficient in the ordinary course of nature to cause death" mean that death will be the "most probable" result of the injury, having regard to the ordinary course of nature." 26. On the basis of above discussions and in the background of above principle of law, we are of the opinion that the conviction of the accused appellant under Section 302 of I.P.C. should be altered under Section 304 Part-I of I.P.C. because one injury was caused by the accused appellant upon the head of deceased, that too, in spur of moment. Consequently, this appeal is partly allowed. The convention and sentence awarded to the accused appellant under Section 302 I.P.C. is hereby altered to Section 304 Part-I of IPC and the punishment of life imprisonment awarded to the accused appellant is hereby reduced to ten years RI while maintaining the order of fine.Appeal partly allowed. *******