JUDGMENT : Gopal Krishan Vyas, J. 1. In this cr. jail appeal filed by Smt. Mohani Devi W/o. Sohan Ram from Central Jail, Jodhpur, the judgment dated 26.9.2014 passed in Sessions Case No. 13/2011 by the learned Addl. Sessions Judge, Sujangarh, District Churu is under challenge whereby the accused appellant was convicted for offence under Section 302 IPC and sentence for life imprisonment alongwith fine of Rs. 5,000/- is imposed against her. 2. As per brief facts of the case, a written complaint (Ex. P/1) was filed by PW-1 Sukha Ram (PW-1) before the SHO Police Station, Sujangarh in which following allegations were leveled against the accused appellant Smt. Mohani Devi, which reads as under: lsok esa] Jheku Fkkukf/kdkjh egksn; iqfyl Fkkuk lqtkux<+ fo"k; %& dkuwuh dk;Zokgh djus ckcr~ egksn; th] fuosnu gS fd eS lq[kkjke iq= >qejjke tkfr tkV mez 38 lky fuoklh okMZ uaŒ 4 lqtkux<+ dk gwWaaA esjk cM+k HkkbZ lksgu jke Hkh gekjs gh eksgYyss esa jgrk gSA vkt fnukad 22-5-11 dks lqcg djhc 4%30 ,-,e & 5%00 ,-,e cts eSa o esjh ifRu NksVw nsoh vius ?kj Fks mlh le; lksgu jke dk yM+dk mez djhc 10 lky Hkkx dj gekjs ?kj vk;k o gesa crk;k fd esjs firkth dks esjh eka eksguh ekjihV dj jgh gSA rc eSa o esjh ifRu Hkkx dj lksgu jke ds ?kj x;s rks eksguh nsoh ykSgs dh /kknkj xaMklh ls /kkj dh rjQ ls ekj jgh FkhA eS o esjh ifRu us ndkyk rks eksguh nsoh Hkkx xbZ esjk HkkbZ lksgu jke [kwu ls yFkiFk pkjikbZ ij iM+k FkkA rc eSusa Fkkuk VsyhQksu fd;k o eSus o euksgj us lksgu jke dks bZykt ds fy, gksLihVy ysdj vk;sA esjs HkkbZ lksgu jke dks mldh ifRu eksguh nsoh us tku ls ekjus dh fu;r ls /kkjnkj xaMklh dh /kkj dh rjQ ls pksVsa ekjh fjiksVZ nsrk gwaA dk;Zokgh djs fnukad 21&5&11 izkFkhZ lq[kkjke 3. The aforesaid complaint was filed before the SHO Police Station Sujangarh in the Government Hospital, Sujangarh where the injured Sohan Ram was under treatment. The aforesaid complaint was submitted to the SHO at 6.05 am on 22.5.2011 at Government Hospital, Sujangarh. Upon the aforesaid report, the SHO Police Station Sujangarh registered formal FIR No. 107 (Ex. P/1A) on 22.5.2011 under Section 307 and 324 IPC. The aforesaid complaint was submitted to the SHO at 6.05 am on 22.5.2011 at Government Hospital, Sujangarh. Upon the aforesaid report, the SHO Police Station Sujangarh registered formal FIR No. 107 (Ex. P/1A) on 22.5.2011 under Section 307 and 324 IPC. The medial officer Government Bagadiya Hospital, Sujangarh prepared the report after medical examination of the injured Sohan Lal which is on record as Ex. P/11. In the said injury report, 7 injuries are mentioned and as per medical officer all the injuries were caused by sharp edged weapon and injury Nos. 2, 3, 5, 6 and 7 were simple in nature and opinion was obtained for injury Nos. 1 and 4 after x-ray. 4. During treatment, at 8.10 am on 25.5.2011 in the morning the injured Sohan Ram died, therefore after adding offence under Section 302 IPC, the details of the dead body was recorded after examination of the dead body by the SHO in the presence of two witnesses Suja Ram and Pema Ram. Thereafter, the post mortem was conducted by the medical jurist vide Ex. P/15 at 2.30 pm on 25.5.2011 and as per opinion of doctor, the cause of death was comma due to head injury mentioned in the post mortem report. The doctor further gave opinion that the said injury was sufficient to cause death in ordinary course of nature. After registration of the FIR on 22.5.2011, site plan of the place of occurrence was prepared in the presence of two witnesses Akha Ram and Chhotu Devi. The details of place of occurrence was recorded vide Ex. P/3A. The blood stained soil and simple soil was taken in possession from the place of occurrence vide Ex. P/4 and P/5. The shirt of the injured Sohan Lal was taken in presence of two witnesses Akha Ram and Chhotu Devi. One towel and while pillow were also taken in possession vide Ex. P/7. The accused appellant was arrested on 22.5.2011 at 4.15 pm vide Ex. P/8. The weapon Gandasi was also recovered vide Ex. P/9 as per information given by the accused appellant on 22.5.2011 in the presence of two witnesses Akha Ram and Chhotu Devi. 5. The investigating officer after recording statements of prosecution witnesses under Section 161Cr.P.C. sent all the articles for chemical examination to the FSL, Jodhpur and in return, the report (Ex. The weapon Gandasi was also recovered vide Ex. P/9 as per information given by the accused appellant on 22.5.2011 in the presence of two witnesses Akha Ram and Chhotu Devi. 5. The investigating officer after recording statements of prosecution witnesses under Section 161Cr.P.C. sent all the articles for chemical examination to the FSL, Jodhpur and in return, the report (Ex. P/16) was received in which opinion was given that upon all the articles including Gandasi recovered at the instance of the accused appellant the blood 'A' group was found. 6. On conclusion of investigation, the charge-sheet was filed against the accused appellant Moahni Devi under Section 302 IPC in the court of Civil Judge (Sr.Div.) cum Chief Judicial Magistrate, Sujangarh for trial. 7. The learned trial court framed charge under Section 302 IPC against the accused appellant Mohani Devi on the basis of evidence on record, but the accused appellant denied the charge and prayed for trial. 8. During trial, statements of 12 prosecution witnesses were recorded including three eye witnesses PW-3 Nauratan, PW-4 Durga and PW-5 Hanshu, all children of accused appellant as well as deceased. 9. After recording statements of all the prosecution witnesses, statement of Mohani Devi were recorded under Section 313 Cr.P.C. in which she denied the charges levelled against her and gave explanation that she has been falsely implicated because younger brother of my husband was insisting for marriage of her daughter Hansu with his relative, but I refused for the said marriage, therefore, he was having enmity with me and as a consequence to that he has falsely implicated me in the case and he has also abated my children to give statement against me. 10. In defence, no evidence was produced by the accused appellant, thereafter, the learned trial court finally heard the arguments of both the sides. The learned trial court convicted the accused appellant for offence under Section 302 IPC vide judgment dated 26.9.2014 for offence under Section 302 IPC and sentence of life imprisonment alongwith fine of Rs. 5,000/- was imposed against him. 11. In this appeal, the accused appellant is challenging the impugned judgment. 12. Learned counsel for the appellant submits that the entire story is totally false because prosecution has failed to prove its case on the basis of testimony of so called eye witnesses. 5,000/- was imposed against him. 11. In this appeal, the accused appellant is challenging the impugned judgment. 12. Learned counsel for the appellant submits that the entire story is totally false because prosecution has failed to prove its case on the basis of testimony of so called eye witnesses. It is also argued by the learned counsel for the appellant that bare perusal of statement of so called eye witnesses PW-3 Nauratan, PW-4 Durga and PW-5 Hanshu it will reveal that they cannot be treated as eye witness so as to hold accused appellant guilty for alleged offence. There are major contradictions, but the learned trial court committed an error while relying upon the testimony of these child witnesses so as to hold the accused appellant guilty. Without prejudice to above argument, it is submitted that even if the entire evidence is accepted then also, the main ingredient which is motive for offence under Section 302 IPC is absent in this case. According to the evidence on record, the deceased was husband of the accused appellant and marriage of the accused appellant was solemnized with him before 15 years and from the wedlock with the deceased, four children were born namely PW-3 Nauratan, PW-4 Durga and PW-5 Hanshu and third daughter Dropadi. The entire case is based upon the testimony of these witnesses who were said to be eye witnesses. 13. Learned counsel for the accused appellant submits that the decided died after three days of the incident and out of seven injuries, five injuries were simple in nature and as per the statement of PW-3 Nauratan in the cross-examination it is stated by him that the lady who is standing in the court is not my mother. The said witness refused to identify the accused appellant. PW-4 Durga although made allegations in her statement that accused appellant who is mother of her caused injuries by the weapon Gandai to her father, but it is stated in the cross-examination that I was sleeping but awake when I heard hue and cry of my father, but it is accepted by the witness PW-4 Durga in her statement that she is giving statement because my uncle Sukha Ram and my aunty asked him to give statement against my mother. PW-5 Hanshu is the daughter of the accused appellant Mohani Devi. PW-5 Hanshu is the daughter of the accused appellant Mohani Devi. In the examination-in-chief it is accepted by her that there was quarrel in between my mother and my father. It is also accepted in cross-examination that a quarrel took place in between my father and mother in which my father caused injury to my mother upon her leg, therefore, blood come out. Thereafter, when my father slept my mother Mohani Devi inflicted injury by Gandasi to him. Meaning thereby, even if the entire prosecution case is accepted then also, it cannot be said that finding of guilt recorded by the learned trial court for offence under Section 302 IPC is not made out. 14. Learned counsel for the appellant submits that it is a case in which due to quarrel took place between the husband and wife, the injuries were caused to the husband by the accused appellant which resulted into death after three days of the incident, therefore, even if entire prosecution case is accepted then also it is a fit case to convert the offence under Section 302 IPC to offence under Section 304 Part II IPC. 15. Lastly it is argued that in absence of any evidence of motive, the conviction of accused appellant for offence under Section 302 IPC is not sustainable in law, therefore, if this Court come to the conclusion that incident took place in the house of the accused appellant and deceased Sohan Ram, then also, no offence under Section 302 IPC is made out, therefore, the conviction may be altered from offence under Section 302 IPC to offence under Section 304 Part II IPC. In support of his arguments, the learned counsel for the appellant invited our attention towards the judgment in the case of Buddhu Singh v. State of Bihar (now Jharkhand) reported in 2011 Cr. L.R. (SC) page 519. 16. Per contra, learned Public Prosecutor submits that even though there is no evidence of motive on record, but the way in which incident took place it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant guilty for offence under Section 302 IPC. L.R. (SC) page 519. 16. Per contra, learned Public Prosecutor submits that even though there is no evidence of motive on record, but the way in which incident took place it cannot be said that any error has been committed by the learned trial court so as to hold accused appellant guilty for offence under Section 302 IPC. Learned Public Prosecutor further submits that three witnesses, though they are children of accused appellant Mohani Devi and deceased Sohan Lal, but they are categorically proved the fact that an incident took place in their house in the night of 21.5.2011 and 22.5.2011 in which injuries were caused by the accused appellant Mohani Devi to her husband Sohan Ram and due to those injuries Sohan Ram died. It is also argued that non lenient view is required to be taken in favour of the accused appellant on the ground that she is having three daughters and a son and nobody is carrying to them because a serious offence under Section 302 IPC is committed by her which is well proved by the prosecution, therefore, the instant appeal may kindly be dismissed. 17. After hearing learned counsel for the parties, we have perused the entire evidence. Though FIR was registered upon the statement of PW-1 Sukha Ram, but said witness is real brother of deceased Sohan Ram, who went on spot soon after the occurrence when his nephew Navratan gave information that my mother inflicting injury to my father. The said witness immediately rushed to the place of occurrence and saw the incident. 18. Similarly, PW-2 Chhoti Devi is the wife of Sukha Ram. PW-3 Nauratan, PW-4 Durga and PW-5 Hanshu categorically proved that incident took place in their house in which accused appellant inflicted injury by weapon Gandasi and due to those injuries, the deceased died after three days. 19. PW-6 Aakha Ram is the witness of recovery. He has proved the recovery of weapon. 20. PW-7 Dr. Dalip Singh who has prepared the injury report categorically said that at the time of examination on 20.5.2011 when he was posted as medical officer in the Government Hospital, Sujangarh, seven injuries were found upon the body of the injured Sohan Ram, out of which injuries Nos. 2, 3, 5, 6 and 7 were simple in nature whereas he has obtained X-ray for injury No. 1 and 3. 2, 3, 5, 6 and 7 were simple in nature whereas he has obtained X-ray for injury No. 1 and 3. In the cross-examination he has categorically stated that except above seven injuries there was no other injury upon the vital part of the body. 21. PW-8 Sultan Singh was working as Food Constable at Police Station Sujangarh who has deposited all the articles to the FSL for examination. 22. PW-9 Jai Singh was incharge of Malkahana. PW-10 Ramu Ram was posted as SHO Police Station Sujangarh. The said witness proved that FIR No. 107/2011 was registered by him under Section 307and 324 IPC and investigation was conducted by him. Thereafter, investigation was handed over to the SHO Sh. Jagdish Bohra. 23. PW-11 Jagdish Bohra stated before the court that after completion of investigation, charge-sheet was filed against accused appellant under Section 302 IPC. 24. PW-12 Dr. Indubala Mathur conducted post mortem of the deceased and as per her opinion the cause of death was comma due to injuries caused to the deceased, so also, it is also observed that those injuries were sufficient to cause death in ordinary course of nature. 25. In view of the above evidence, there is no doubt about the incident because all the witnesses categorically made statement before the court that quarrel took place in their house in between the accused appellant and deceased; in which injuries were caused by the accused appellant (wife) to her husband, so also, by the deceased Sohan Ram to the accused. 26. To consider the prayer of learned counsel for the appellant that as per evidence on record, no offence is made out under Section 302 IPC because main ingredient which is 'motive' is absent in this case, we are in full agreement with the argument of the learned counsel for the appellant that there is no trustworthy evidence of motive on record, more so, in the arrest memo of the accused appellant Mohani Devi (Ex. P/8) dated 22.5.2011 the investigating officer observed that there were injuries upon the leg of the accused appellant and blood was coming out from the said injury. P/8) dated 22.5.2011 the investigating officer observed that there were injuries upon the leg of the accused appellant and blood was coming out from the said injury. The investigating officer (PW-10) Ramu Ram Meena stated before the court in his cross-examination that : eksguh nsoh dks tc eSusa fxjrkj fd;k rc pksV yxh gqbZ Fkh ftldk MkDVjh eqvkbZuk djok;k Fkk] pksV dgka yxh Fkh eSusa ugha ns[khA eksguh nsoh us pksV dk dkj.k >xM+k ds nkSjku yxuk crk;kA 27. Similarly, the PW-5 Hanshu stated in her statement that relationship of my mother was not cordial. The following statement is given by PW-5 Hanshu, who was 13 years of age, which reads as under: ge pkj cgu&HkkbZ gSA esjh ek¡ dk uke eksfguh nsoh gSA gkftj vnkyr eqyfte dks ns[kdj xokg us dgk fd ;s esjh eka eksfguh gSA esjh eka fcuk iwNs ?kj ls fudy tkrh Fkh] esjs firkth euk djrs Fks] ftldk jkr&fnu >xM+k jgrk FkkA In the cross-examination, the said witness specifically said that: esjh eEeh ds Hkh ikao ds pksV yxh gqbZ FkhA [kwu vk jgk FkkA Q'kZ ij Hkh eEEkh dk [kwu iM+k FkkA esjh eka us eq>s dgk Fkk fd esjh eka ds ikoa ds pksV esjs firk ds ekjus ls vkbZ FkhA esjh eka us dgk Fkk fd esjs ikik us eka ds x.Mklh dh ekjh FkhA 28. Thus, it is abundantly clear that a quarrel took place in between the husband and wife on the date of incident in which injuries were caused by the deceased to the accused appellant so also, when the deceased slept, the accused appellant inflicted injuries upon the body of the deceased, which resulted into the death after three days. It is admitted fact of the case that deceased Sohan Ram was taken to the hospital and in the injury report, injuries were found upon his body out of which five injuries were simple in nature and for two injuries, the medical officer obtained X-ray report and sent him for treatment to the higher center, but during treatment he died at PBM Hospital, Bikaner and as per the opinion of the doctor, the deceased died due to shock due to the injuries caused to him. 29. 29. Upon assessment of entire evidence, we are of the opinion that although incident took place in which injuries caused by the accused appellant wife to her husband, but in the totality of the circumstances, it cannot be said that upon evidence on record the finding of learned trial court to hold accused appellant guilty for offence under Section 302 IPC is sustainable in law because there is no evidence of motive on record. 30. Admittedly, quarrel took place in spur of moment in which accused appellant caused injuries to the deceased, but before that, deceased also caused injury to the accused appellant in presence of children because PW-5 Hanshu categorically stated in her statement that a quarrel took place in between the deceased and appellant on the date of incident in the house, therefore, there is no doubt that the occurrence took place in spur of moment when quarrel took place between the husband and accused appellant wife. 31. In the case of Buddhu Singh v. State of Bihar (now Jharkhand) reported in 2011 Cr. L.R. (SC) page 519 the Hon'ble Supreme Court gave following verdict in paras Nos. 6 to 9, which reads as under: "6. Mr. Ajit Pandey, learned counsel appearing for the accused persons contended that firstly this was a case of single blow and the blow could not have been intended to be given on the head though it did land on the head. Mr. Pandey further argued that if the intention was to commit the murder, then the accused persons, more particularly accused Buddhu Singh would have repeated the assault which he actually and admittedly did not repeat. 7. Mr. Pandey further contended that once the injury was unintended, the offence could be converted into Section 304 Part II IPC from Section 302 IPC because the accused ought to have the knowledge that a single assault by an axe could result into the death of the deceased. 8. Mr. Manish Mohan, learned counsel appearing for the State supported the judgment and contended that the injury was serious enough and was on a very vital part i.e. head and resulted in the fracture of frontal bone and the death was almost instantaneous, though in the hospital. 9. 8. Mr. Manish Mohan, learned counsel appearing for the State supported the judgment and contended that the injury was serious enough and was on a very vital part i.e. head and resulted in the fracture of frontal bone and the death was almost instantaneous, though in the hospital. 9. Considering the overall material, we are of the view that there is hardly anything on record which can be said against the accused Ledwa Singh and Balchand Singh though the common intention on their part could be attributed since they had done the over act of grappling with and pinning down the deceased. Now, seeing his father and brother had been grappling with the deceased, the accused Buddhu Singh dealt an axe blow which could not be said to be intended towards the head. It could have landed anywhere. However, it landed on the head of the deceased. Therefore, the element of intention is ruled out. Again the defence raised on behalf of the accused that there could not have been the intention to commit the murder of the deceased is justified by the fact that the accused Buddhu Singh did not repeat the assault. Under the circumstances, we feel that the prosecution has been able to establish the guilt of the accused persons under Section 304 Part II I.P.C." 32. In view of the above, in absence of evidence of motive, we are of the opinion that it is a fit case to alter the conviction of the accused appellant from offence under Section 302 IPC to offence under Section 304 Part II IPC and to reduce the sentence of life imprisonment. 33. Consequently, this cr. jail appeal is partly allowed. The conviction of the accused appellant for offence under Section 302 of IPC imposed by the learned Addl. Sessions Judge, Sujangarh, District Churu vide judgment dated 26.9.2014 in Sessions Case No. 13/2011 is hereby altered to Section 304Part II of IPC and the sentence of life imprisonment is reduced to 7 years RI while maintaining the order of fine.