JUDGMENT : S.B. Shukre, J. This is an appeal preferred against the judgment and order dated 08/12/2014 delivered in Sessions Trial No.62/2013 by the Additional Sessions Judge, Amravati thereby convicting and sentencing the appellant of the offence of murder punishable under Section 302 of the Indian Penal Code (for short ‘the I.P.C.'). 2. The appellant was the husband of deceased Pramila. He married deceased Pramila about 12 to 13 years prior to the incident, which took place at the own house of the appellant some time between evening of 12/07/2012 and morning of 13/07/2012. The appellant and deceased Pramila were residing together along with their two daughters at village Gawhankund, Tahsil Warud, District Amravati. His third and the eldest daughter was then kept at Narkhed for her educational purpose. The appellant recently before the incidental started suspecting fidelity of his wife. He noticed some time before the incident that deceased Pramila and appellant’s neighbour Baburao Kose had become too friendly with each other to raise eyebrows of the appellant. On 12/07/2012, at about 5:00 p.m., the appellant returned home and saw his wife as conversing with Baburao jovially. The appellant was already disturbed over the behaviour of his wife and this friendly chitchat proved to be the last straw for his patience. It infuriated him so much that he picked up a stick and beat up his wife by the stick as well as by kick blows. It appears that deceased Pramila sustained some bleeding injuries including serious injuries to her ribs and the internal organs encased in it. She vomited and asked for a glass of water. It was served to her. The appellant then made her lie down and go to sleep. In the morning of the next day, the appellant found his wife as dead. He informed his another neighbour, the Police Patil, about the same. He informed the police, who arrived at the spot of incident. Meanwhile, brother of the deceased also residing in the same village had reached the spot of incident upon learning about the death of his sister. He gave an oral report to the police against the appellant, which was taken down in writing. Offence of murder punishable under Section 302 of the I.P.C. was registered and investigation was made into it. Meanwhile, brother of the deceased also residing in the same village had reached the spot of incident upon learning about the death of his sister. He gave an oral report to the police against the appellant, which was taken down in writing. Offence of murder punishable under Section 302 of the I.P.C. was registered and investigation was made into it. Upon completion of the investigation, chargesheet was filed, which was committed to the Sessions Court as the offence of murder was exclusively triable by the Sessions Court. The appellant pleaded not guilty to the charge framed against him and claimed to be tried. 3. On merits of the case, the learned Additional Sessions Judge found that the injuries suffered by deceased Pramila were caused to her intentionally by the appellant. It further found that some of those injures, particularly the fractured ribs and injuries to the lungs were caused to vital organs of deceased Pramila and so the offence of murder punishable under Section 302 of I.P.C. was proved beyond reasonable doubt against the applicant. Accordingly, the learned Additional Session Judge, by his judgment and order dated 08/12/2014, convicted and sentenced the appellant for the said offence with rigorous imprisonment for life and fine of Rs.5000/along with default sentence of rigorous imprisonment for six months. It is the same judgment and order, which is under challenge in the present appeal. 4. We have heard Shri R.M. Daruwala, learned Counsel (appointed) for the appellant and Shri R.S. Nayak, learned Assistant Government Pleader for the State. We have carefully gone through the record of the case including the impugned judgment and order. 5. According to Shri Daruwala, learned Counsel for the appellant, there was no intention on the part of the appellant to cause death of his wife. He submits that even if the appellant did something to his wife, it was only out of his perception of relations between his wife and his neighbour. Therefore, he submits that no offence of murder is proved against the appellant and the appellant be shown leniency. 6. The learned A.P.P. submits that the impugned judgment and order is the result of proper appreciation of evidence and, therefore, he urges that no interference with the same be made by this Court. He submits that the prosecution case is based upon evidence of PW5 Dr. 6. The learned A.P.P. submits that the impugned judgment and order is the result of proper appreciation of evidence and, therefore, he urges that no interference with the same be made by this Court. He submits that the prosecution case is based upon evidence of PW5 Dr. Jagdish Kalbhor, PW6 Salim Pathan, the Police Patil to whom the extrajudicial confession has been made by the appellant, PW8 Baburao Kose, the neighbour of the appellant, the medical evidence and the circumstantial evidence in the nature of recovery of the bloodstained stick at the instance of the appellant, which all go to establish prosecution case against the appellant. 7. The evidence of PW6 Salim Pathan and PW8 Baburao Kose clearly establishes the fact that in the evening of 12/07/2012, some time around 05:00 p.m., the appellant suspecting character of his wife deceased Pramila, gave her kick blows as well as blows of the stick, which resulted in deceased sustaining bleeding injuries. PW6 Salim Pathan says that he was told by the appellant that at about 04:00 p.m., when he returned home, he saw his wife as talking with PW8 Baburao and, therefore, he initially went after Baburao in order to beat him up, but as Baburao ran away, he poured his anger upon Pramila and dealt her foot kicks as well as blows of the stick. He also states that he was then told by the appellant that upon receiving such a beating at the hands of the appellant, Pramila vomited and then he made her go to sleep. He was also told by the appellant that, when the appellant woke up next day morning, he found deceased Pramila dead. PW8 Baburao also reiterated what has been deposed about by PW6 Salim Pathan on the point of beating Pramila by stick and kick blows by the appellant. The only difference between the depositions of these two witnesses is in respect of the source of their information. The source of information of PW6 is the confessional statement made to him by the appellant and knowledge of PW8 Baburao is personal as he himself had seen the appellant beating his wife in such a manner. The account of the incident given by the appellant to PW6 Salim Pathan, the Police Patil, is inculpatory and can be considered as extra judicial confession. The account of the incident given by the appellant to PW6 Salim Pathan, the Police Patil, is inculpatory and can be considered as extra judicial confession. It is no longer res integra that extra judicial confession made to a Police Patil is admissible in evidence as a Police Patil is not a police officer within the meaning of Section 25 of the Indian Evidence Act. PW8 Baburao has also added that he had tried to prevent the appellant from beating his wife, but in vain. There is nothing in the entire evidence of both these witnesses so as to entertain any doubt about their trustworthiness. We would, therefore, believe them to be the reliable witnesses. 8. This would lead us to conclude that in the evening of 12/07/2012 at his own house, the appellant saw his wife talking with PW8 Baburao Kose, which fact, however, has been denied by PW8 Baburao, but without any success as the extra judicial confession of the appellant as well as conduct of the appellant himself voluntarily confessing to PW6 Salim Pathan would make such denial as devoid of any substance and then the appellant subjected his wife to beating by giving her kick blows as well as stick blows. Such beating of deceased Pramila resulted in her sustaining bleeding injuries. Those injuries also made her vomit after which the appellant made the bed for her and made her go to sleep. Deceased Pramila, however, did not survive to see the light of the next day. She was discovered dead in the next day morning by the appellant. These facts and circumstances established on record would now necessitate consideration of the nature of injuries suffered by Pramila, as they would have a material bearing upon the aspect of intention or knowledge, so essential for ascertaining if the death was a culpable homicide amounting to murder or otherwise. 9. PW5 Dr. Jagdish Kalbhor is the Doctor, who conducted postmortem examination of the dead body of Pramila in the afternoon of 13/07/2012. He found two lacerations over right lower leg, one contusion over lip, one contusion over elbow and one contusion over back of the deceased. These were the surface wounds noticeable upon the external examination. The Doctor, however, also discovered an internal injury on palpation. That injury was in the nature of fracture of lower four ribs on the right side of deceased Pramila. These were the surface wounds noticeable upon the external examination. The Doctor, however, also discovered an internal injury on palpation. That injury was in the nature of fracture of lower four ribs on the right side of deceased Pramila. Upon internal examination, fracture of lower four ribs was confirmed by the Doctor and additionally he found that haemothorax with contusion was present over right lung. It is a sign of accumulation of blood in the pleural cavity. The Doctor, therefore, opined that death may be caused due to injury to lungs and internal hemorrhagic condition. The Doctor has further opined that the injuries mentioned in column No.17, which were in the nature of lacerations over right lower leg and elbow and contusion over lip and back, were possible by the use of stick. He further opined that fracture of ribs was possible due to foot kicks given on the chest and such foot kicks will not cause surface injury. He has, however, not stated in his evidence that the injury to lung was sufficient in the ordinary course of nature to cause death. On the contrary, the Doctor has admitted in his evidence that he intentionally used the expression “.....death may be caused due to injury to lung......” because he was doubtful about the cause of death. 10. This evidence of PW5 Dr. Jagdish Kalbhor sufficiently establishes the fact that the use of stick by the appellant in beating his wife did not result in her death and that it were the kick blows given to Pramila by him that probably caused her death. 11. Ordinarily, when a person gives a kick blow to the chest of a person, the degree of knowledge regarding such a blow resulting in death would be much lesser than in cases where dangerous weapons or instruments like thick stick seized in the present case at the instance of the appellant are used. A person giving a kick blow to the chest especially to the chest of a middle aged woman like deceased Pramila could be invested with a knowledge that it may probably cause death and the degree of knowledge would be lesser like a lower chance of bringing about death than a stronger chance described aptly by the expression “in all probability”. Such person, however, could certainly not be attributed with any intention to cause death or to cause such bodily injury as is likely to cause death in all probability. In this case, the Doctor is also not sure about the cause of death and for this reason also the knowledge that could be attributed to the appellant would be of lesser degree of probability than in a case where the injury is caused by dangerous weapons or instruments used as weapons of offence. Then, from the facts and circumstances available on record, it appears that the appellant was deprived of the power of self control by the grave and sudden provocation produced by the objectionable way, at least he perceived it to be so being the husband, his wife was behaving with his neighbour on the fateful day. 12. The cumulative effect of the prosecution evidence discussed above would be that the prosecution has failed to establish beyond reasonable doubt that death of Pramila was caused by the appellant with an intention to kill her or with such knowledge that his beating Pramila was so dangerous that it must in all probability cause her death or such bodily injury as is likely to cause her death. This evidence only shows that the prosecution has succeeded in proving the fact that death of deceased Pramila was a culpable homicide committed by the appellant and as it was committed without any intention but with knowledge of lesser degree to cause death, it was a culpable homicide not amounting to murder falling within the scope and ambit of Part-II of Section 304 of the I.P.C. The learned Additional Sessions Judge ignored these material aspects of the case and, therefore, came to a wrong conclusion that prosecution has established the charge of murder against the appellant. To this extent, the impugned judgment and order needs to be quashed and set aside and the appellant needs to be convicted of the offences punishable under Section 304 Part-II of the I.P.C. by appropriately sentencing him. 13. Learned A.P.P. has drawn our attention to recovery of bloodstained stick at the instance of the appellant. But this evidence is not worth discussing, as we have already found that injuries suffered by Pramila due to the kick blows did not result in her death. 14. 13. Learned A.P.P. has drawn our attention to recovery of bloodstained stick at the instance of the appellant. But this evidence is not worth discussing, as we have already found that injuries suffered by Pramila due to the kick blows did not result in her death. 14. We have heard the learned Counsel (appointed) for the appellant and the learned A.P.P. for the State on the question of sentence. Learned Counsel for the appellant states that the appellant be shown leniency as he has no criminal antecedents and has three girls to take care of. Learned A.P.P. would urge that appropriate order be passed. 15. Having considered the facts and circumstances of this case, the background of the appellant and the parental duties that the appellant is required to perform in the absence of his wife towards his three daughters would, in our considered view, entitle him to receive a portion of leniency from this Court. In our view, ends of justice would be met by imposing the following sentence by partly allowing this appeal. i. The conviction of the appellant for the offence punishable under Section 302 of I.P.C. is quashed and set aside. Instead, he is convicted for the offence punishable under Section 304 Part-II of I.P.C. and sentenced to suffer rigorous imprisonment for a period of five years and to pay fine of Rs.2,000/or in default, rigorous imprisonment for six months. ii. He is entitled to set off for the period already spent in jail. iii. Muddemal property be destroyed as directed by the trial Court after the appeal period is over. iv. Judgment dated 08/12/2014 delivered by the Additional Sessions Judge-3, Amravati in Sessions Trial No.62/2013 is thus partly modified. v. Charges of the learned Counsel appointed for the appellant are quantified at Rs.7,500/- (Rupees Seven Thousand Five Hundred Only).