JUDGMENT : ARVIND SINGH CHANDEL, J. 1. This appeal is directed against the judgment dated 14.9.2012 passed by the Additional Sessions Judge, Sakti in Sessions Trial No.60 of 2011 convicting and sentencing the accused/Appellant as under: Conviction Sentence Under Section 302 of the Indian Penal Code Imprisonment for Life and fine of Rs.2,000/- with default stipulation 2. Case of the prosecution, in brief, is that Fekanbai (the deceased) was wife of the Appellant. She was residing with the Appellant and their children. The Appellant was running a hotel at Mission Chowk, Malkharoda. Raju Dhobi (PW12) was working in the hotel. On 23.12.2010 at about 10:00 p.m., after closure of the hotel, both the Appellant and Raju Dhobi were sitting in the hotel for taking food. The Appellant asked his wife Fekanbai to serve them food. Due to delay in service, the Appellant abused Fekanbai and shouted for serving food. Fekanbai also abused the Appellant addressing him as “Bhadwa”. The Appellant got enraged and assaulted Fekanbai with an iron rod on her head, as a result of which she fell down and started groaning. At that time, Dhankunwar (PW7), mother of the Appellant was also present there. Having heard the groaning of Fekanbai, Pareshwar (PW4) and Gopichand (PW5) reached there. All of them shifted injured Fekanbai to the hospital at Sakti immediately. From there, she was referred to the Chhattisgarh Institute of Medical Science (CIMS), Bilaspur. She was further suggested to be shifted to a higher medical centre for her better treatment. On account of financial hardship, she was being taken back to home, but, on the way, she succumbed to the injury. Raju Dhobi (PW12) lodged First Information Report (Ex.P15) at Police Station Malkharoda for the offence punishable under Section 302 of the Indian Penal Code. Inquest (Ex.P5) was prepared. Post mortem examination was done on the dead body of Fekanbai by Dr. R.P. Kurre (PW9). His report is Ex.P12 in which he found a lacerated wound with fracture of frontal part of skull, size 2½”x1”x½”. He also found damage in brain matter and the face was smeared with blood. He opined that the injury sustained by deceased Fekanbai was caused by a hard and blunt object within 12 hours from the post mortem examination. He further opined that Fekanbai died of haemorrhagic shock as a result of the injury sustained by her and the nature of death was homicidal. He opined that the injury sustained by deceased Fekanbai was caused by a hard and blunt object within 12 hours from the post mortem examination. He further opined that Fekanbai died of haemorrhagic shock as a result of the injury sustained by her and the nature of death was homicidal. During investigation, on 25.12.2010, memorandum statement (Ex.P1) of the Appellant was recorded before Sunderlal (PW1) and Shivkumar (PW2) and on the basis of the said statement, one iron sabbal was seized from the Appellant vide seizure memo (Ex.P2). The sabbal was examined by Dr. R.P. Kurre (PW9). His report is Ex.P13 in which he found human blood like stains over the sabbal. He advised for chemical examination of the sabbal. He opined that the injury suffered by the deceased could be caused by the said sabbal. From the place of occurrence, plain and blood stained soil were seized vide Ex.P3. Spot-map (Ex.P11) was prepared. The seized sabbal was sent to the Forensic Science Laboratory for chemical examination. FSL report is Ex.P23 in which blood stains were found on the sabbal, but, no serological report is available in this regard. Statements of witnesses were recorded under Section 161 of the Code of Criminal Procedure. On completion of the investigation, a charge-sheet was filed against the Appellant for offence punishable under Section 302 of the Indian Penal Code. Charge was framed against him under Section 302 of the Indian Penal Code. 3. To rope in the Appellant, the prosecution examined as many as 12 witnesses. Statement of the Appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the guilt and pleaded innocence. 1 witness has been examined in his defence. 4. After trial, the Trial Court convicted and sentenced the Appellant as mentioned in the first paragraph of this judgment. Hence, this appeal. 5. Learned Counsel appearing for the Appellant submits that the main prosecution witness Raju Dhobi (PW12) has not supported the case of the prosecution and he has been declared hostile. This witness has also denied the fact that he had lodged the FIR (Ex.P15). He further submits that Dhankunwar (PW7), another eyewitness has also not supported the case of the prosecution and she has also been declared hostile. This witness has also denied the fact that he had lodged the FIR (Ex.P15). He further submits that Dhankunwar (PW7), another eyewitness has also not supported the case of the prosecution and she has also been declared hostile. From the statement of Raju Dhobi and Dhankunwar, it is established that at the time of incident, both were not present at the place of occurrence and from the statement of Raju Dhobi, it is also clear that at the time of incident, the Appellant was also not present in his house. Virtually, deceased Fekanbai had fallen down from the stairs and as a result of which she had received injury on her head and died. Therefore, no offence under Section 302 of the Indian Penal Code is made out against the Appellant. 6. Per contra, Learned Counsel appearing for the State, supporting the impugned judgment, submits that though Raju Dhobi (PW12) and Dhankunwar (PW7) have not supported the case of the prosecution, Pareshwar (PW4) and Gopichand (PW5) have categorically stated that at the time of incident when they reached the spot, Fekanbai had fallen down outside the room and was lying there unconscious. She had suffered an injury on her head and blood was oozing out of the said injury and the Appellant was standing there. Therefore, it is for the Appellant to explain why his wife (the deceased) was found in such a condition in the house, but he has not offered any explanation in this regard. He further submits that from the evidence led by the prosecution, the offence under Section 302 of the Indian Penal Code is proved beyond reasonable doubt and, therefore, the Appellant has rightly been convicted and sentenced by the Trial Court. 7. We have heard Learned Counsel appearing for the parties and perused the record with utmost circumspection. 8. Raju Dhobi (PW12) is the witness who lodged the First Information Report (Ex.P15). He has stated that he was working in the hotel of the Appellant and Fekanbai (the deceased) was living with her husband/Appellant and their children in the hotel itself. He has further stated that on the date of incident at about 8:00–9:00 p.m., he had gone out to fetch water. At that time, the Appellant was present in the hotel along with his wife (the deceased). 10–15 minutes thereafter, he returned. He has further stated that on the date of incident at about 8:00–9:00 p.m., he had gone out to fetch water. At that time, the Appellant was present in the hotel along with his wife (the deceased). 10–15 minutes thereafter, he returned. He saw that Fekanbai was lying down beside the stairs, blood was oozing out of her head and the Appellant was present there. Thereafter, many people reached there and injured Fekanbai was taken to the hospital. He denied the fact that he had also gone to the hospital along with them and he also denied the fact that he had lodged the FIR (Ex.P15). This witness has been declared hostile by the prosecution. During cross-examination, he has further stated that the Appellant was not present at the spot as he had gone towards the Mela (fair) from before and when he himself returned, the Appellant thereafter returned there. 9. Dhankunwar (PW7) is mother of the Appellant. She was allegedly residing with the Appellant and at the time of the incident also, she was present there. In her Court statement, she has stated that on the date of incident, she was not present at the house of the Appellant. Since morning, she had gone out to visit her eldest son Ghasia. At about 8:00 p.m., she was in the house of Ghasia. At that time, she heard that Fekanbai had fallen down. When she reached the spot, she saw that Fekanbai was lying down in injured condition and she had sustained injury on the head. She has further stated that she did not ask the Appellant nor did she ask any other person about how Fekanbai had sustained injury on the head. This witness has also been declared hostile by the prosecution. 10. Pareshwar (PW4) has stated that the shop of his nephew Faguram was situated in front of the hotel of the Appellant. At the time of incident, he was present in front of the shop of Faguram. At that time, mother of the Appellant shouted “Mar Daris Re”. Having heard the shout, he went to the spot and saw that Fekanbai had fallen down near the room, she was unconscious, she had sustained injury on the head and blood was oozing out of the injury. Mother of the Appellant and Raju Dhobi (PW12) were present there. At that time, mother of the Appellant shouted “Mar Daris Re”. Having heard the shout, he went to the spot and saw that Fekanbai had fallen down near the room, she was unconscious, she had sustained injury on the head and blood was oozing out of the injury. Mother of the Appellant and Raju Dhobi (PW12) were present there. On being asked, mother of the Appellant told that the Appellant had assaulted Fekanbai. In paragraph 5 of his cross-examination, he has further stated that mother of the Appellant had not told as to with which article/weapon the Appellant had made the assault. 11. Gopichand (PW5) has stated that at the time of incident, he was present in the hotel of Jhanakram. At that time, he heard “Mar Daris” from the spot. He went to the spot and saw that Fekanbai was lying down outside the room in unconscious condition, she had sustained injury on the head and blood was oozing out of the injury. The Appellant was standing there and his mother was also present there. He heard from the people that the Appellant had assaulted his wife (the deceased). 12. Sunderlal (PW1) and Shivkumar (PW2) are the witnesses of memorandum statement (Ex.P1) of the Appellant and seizure memo (Ex.P2 and P3) and they are also the witnesses of inquest (Ex.P5) of the dead body of the deceased. Sunderlal (PW1) has stated that the Appellant had stated that he will get one sabbal recovered from his house and on the basis of said memorandum statement of the Appellant, the police had seized one sabbal from the house of the Appellant vide Ex.P2. He has further stated that plain and blood stained soil were also seized from the spot vide Ex.P3. 13. Shivkumar (PW2) has admitted the only fact that he had put signatures on the memorandum statement (Ex.P1) of the Appellant. But, he has admitted the fact that the Appellant had taken out one sabbal from his house which had been seized by the police vide Ex.P2. 14. Constable Reman Singh (PW6) has stated that he had taken the dead body of Fekanbai for post mortem examination. 15. Patwari Ghanshyam Bhardwaj (PW8) is the witness who prepared spot-map (Ex.P11). Dr. R.P. Kurre (PW9) conducted post mortem examination on the dead body of Fekanbai on 25.12.2010. 14. Constable Reman Singh (PW6) has stated that he had taken the dead body of Fekanbai for post mortem examination. 15. Patwari Ghanshyam Bhardwaj (PW8) is the witness who prepared spot-map (Ex.P11). Dr. R.P. Kurre (PW9) conducted post mortem examination on the dead body of Fekanbai on 25.12.2010. His report is Ex.P12 in which he found a lacerated wound with fracture of frontal part of skull, size 2½”x1”x½”. He also found damage in brain matter and the face was smeared with blood. He opined that the injury sustained by deceased Fekanbai was caused by a hard and blunt object within 12 hours from the post mortem examination. He further opined that Fekanbai died of haemorrhagic shock as a result of the injury sustained by her and the nature of death was homicidal. He also examined the seized sabbal and gave his report is Ex.P13 in which he found human blood like stains over the sabbal. He advised for chemical examination of the sabbal. He opined that the injury suffered by the deceased could be caused by the said sabbal. 16. Sub-Inspector G.S. Johar (PW11) is the Investigating Officer of the offence in question. He has stated that he recorded the FIR (Ex.P15) as told by Raju Dhobi (PW12). He prepared inquest (Ex.P5), spot-map (Ex.P17), recorded memorandum statement (Ex.P1) of the Appellant on 25.12.2010 and on the basis of Ex.P1, he seized one sabbal from the house of the Appellant vide Ex.P2. He also seized plain and blood stained soil from the spot vide Ex.P3. He recorded statements of witnesses under Section 161 of the Code of Criminal Procedure. He has further stated that the seized sabbal was sent by him to the Forensic Science Laboratory for chemical examination. According to the FSL report (Ex.P23), blood stains were found on the sabbal. 17. The Appellant has examined Dr. R.L. Thakur as DW1, who had first examined injured Fekanbai at Community Health Centre, Sakti on 23.12.2010 at 10:05 p.m. Dr. Thakur has stated that during examination of injured Fekanbai he found her to be very serious. He had informed Police Station Sakti about this vide Ex.D-3. He had found 1 cut injury on the back portion of the skull measuring 7 cms. x ½ cm. x bone deep. This witness has categorically denied the suggestion that the injury suffered by Fekanbai could be caused by falling down from the stairs. He had informed Police Station Sakti about this vide Ex.D-3. He had found 1 cut injury on the back portion of the skull measuring 7 cms. x ½ cm. x bone deep. This witness has categorically denied the suggestion that the injury suffered by Fekanbai could be caused by falling down from the stairs. His report is Ex.D-4. 18. A minute examination of the above evidence makes it clear that eyewitnesses Raju Dhobi (PW12) and Dhankunwar (PW7) have supported the case of the prosecution only to the effect that both had witnessed Fekanbai in injured condition at her house. Raju Dhobi has stated that at the time of incident the Appellant was not present at his house and he had gone towards the Mela (fair), but Pareshwar (PW4) and Gopichand (PW5) have categorically stated that Dhankunwar (PW7), mother of the Appellant had shouted that “Mar Daris Re” and having heard the shout, they had gone to the spot and seen there that Fekanbai was lying there in injured condition. She had sustained injury on the head and the Appellant was standing there. Both Pareshwar (PW4) and Gopichand (PW5) have remained firm during their cross-examination regarding the presence of the Appellant at the spot. 19. Since deceased Fekanbai was wife of the Appellant and she was found in injured condition in the house of the Appellant, liability is fastened upon the Appellant to explain as to how his wife sustained the injury. In his statement under Section 313 of the Code of Criminal Procedure, the Appellant has not stated anything about this. From the statements of Sunderlal (PW1) and Shivkumar (PW2), it is also established that on the basis of the disclosure statement (Ex.P1) of the Appellant, one sabbal was seized from his house. The sabbal was examined by Dr. R.P. Kurre (PW9). His report is Ex.P13 in which he found human blood like stains over the sabbal. He advised for chemical examination of the sabbal. He opined that the injury suffered by the deceased could be caused by the said sabbal. The sabbal was sent to the Forensic Science Laboratory for chemical examination. According to the FSL report (Ex.P23), blood stains were found on the sabbal. Thus, from the evidence on record, it is established that deceased Fekanbai was wife of the Appellant and the assailant was none other than but her husband/the Appellant only. 20. The sabbal was sent to the Forensic Science Laboratory for chemical examination. According to the FSL report (Ex.P23), blood stains were found on the sabbal. Thus, from the evidence on record, it is established that deceased Fekanbai was wife of the Appellant and the assailant was none other than but her husband/the Appellant only. 20. Allegedly, at the time of occurrence, the Appellant had asked the deceased for early service of food to him and in response thereof when she abused him addressing as “Bhadwa”, he got enraged and assaulted her. He gave her only a single blow. Though as a result of the blow she sustained injury on the head yet from the aforesaid discussion it is established that he had no intention to commit her murder. However, the assault was made on the head with a sabbal meaning thereby he had knowledge that same could result into death. Therefore, in our considered opinion, the act of the Appellant falls within the purview of Section 304 Part II of the Indian Penal Code. Accordingly, the offence is altered from Section 302 to Section 304 Part II of the Indian Penal Code. For the conviction under Section 304 Part II of the Indian Penal Code, the Appellant is sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs.1,000/-. In case of non-payment of the fine, he shall be liable to undergo additional rigorous imprisonment for 3 months. The period already undergone by him shall be adjusted in the period of sentence imposed upon him today and the amount of fine if any already paid by him shall also be adjusted in the amount of fine ordered to be paid today. The fine paid in excess, if any shall be refunded to him within two months from today. 21. Consequently, the appeal is allowed in part to the extent indicated above. 22. Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.