JUDGMENT : This appeal is directed against the judgment of conviction and order of sentence passed by the learned 1st Addl. District & Sessions Judge, Dharwad, sitting at Hubli, in S.C. No. 34/2007 dated 30.01.2008 convicting the accused for the offence punishable under Section 302 of IPC. By its said judgment and sentence, the accused is sentenced and directed to undergo rigorous imprisonment for life and further sentenced to pay a fine of Rs.1,000/- and in default to pay the fine amount, he shall undergo rigorous imprisonment for a further period of six months. 2. The factual matrix of the appeal is as under : The accused is the husband of the deceased Gudumabi. That the accused as well as his wife including their children were residing in the house bearing no. 295/2 situated at Kubihal village, Taluk Kundagol. For the last two years the accused was suspecting the fidelity of his wife Gudumabi and he intended to do away with her life. On the intervening night of 30.10.2006 and 31.10.2006 the accused along with his wife was sleeping inside a portion of their house. P.W.6 and P.W.7 were also sleeping in the front yard of the said house. That at about 1:30 hours the accused is held to have committed murder of his wife, Smt.Gudumabi by assaulting her with a stone marked as M.O.1, i.e., he assaulted on a part of her head. Due to the assault made by means of a stone, his wife Gudumabi sustained fatal injuries and succumbed to the injuries at the scene of crime which is within the house of accused. In pursuance of the act of the accused and on filing of the complaint by the complainant, i.e., P.W.1, being the brother of the deceased a crime came to be registered for the offence punishable u/S 302 of IPC. Subsequently the case has been taken up for investigation by the Investigating Officer and after a detailed investigation of the case has laid the charge sheet against the accused before the committal Court for the aforesaid offences. The trial Court framed charge for an offence u/S 302 of IPC and as the accused did not plead guilty but claimed to be tried. The trial Court framed charge for an offence u/S 302 of IPC and as the accused did not plead guilty but claimed to be tried. The prosecution in order to establish the guilt of the accused, in all examined P.Ws.1 to 17 and got marked several documents as per Exs.P.1 to 15 and material objects as M.Os.1 to 14 were got marked. Subsequently the incriminating statements recorded against the accused were examined as contemplated u/S 313 of Cr.P.C. as wherein the accused has denied the truth of the evidence, the prosecution adduced so far. Subsequently heard the arguments advanced by the prosecution and the learned counsel for the accused. On appreciation of the entire evidence on record relating to the commission of murder of Gudumabi being the wife of the accused, the trial Court was convinced with the evidence putforth by the prosecution and held him guilty and convicted him for the offence u/S 302 of IPC. It is this judgment which is under challenge in this appeal. 3. In this appeal we have heard arguments of learned counsel appointed by the Karnataka State Legal Services Committee, Dharwad, namely, Sri Mahesh Wodeyar and the learned Addl. State Public Prosecutor for the State and perused the records of the case. 4. Whereas the learned counsel for the appellant-accused in this appeal has taken us through the evidence of P.W.1-Moulali Sattarsab Sunkad, who being the brother of the deceased Gudumabi and P.W.2-Hatelsab Moulasab Mulla, P.W.4-Mukthumsab Hussainsab Shiggavi, P.W.6-Dilshadbegum, P.W.7-Mehaboobsab Moulasab Shiggavi. These witnesses have been examined by the prosecution relating to the motive for commission of the offence. The prosecution has placed much reliance on this evidence to prove the charge against the accused. That the accused had confessed before P.Ws.1 and 4 that he has committed murder of his wife Gudumabi by assaulting her by means of M.O.1-stone. P.W.1 is none other than the younger brother of the deceased. 5. He is residing in Panigatti village of Shiggavi taluk. The said taluk is situated at a distance of about 13 kms from his village as well as house of the accused. Subsequent to the marriage of the deceased with the accused both were residing in the house of the deceased situated at Kubihal village of Kundagol Taluk. 5. He is residing in Panigatti village of Shiggavi taluk. The said taluk is situated at a distance of about 13 kms from his village as well as house of the accused. Subsequent to the marriage of the deceased with the accused both were residing in the house of the deceased situated at Kubihal village of Kundagol Taluk. P.W.4-Mukthumsab, being the elder brother of the accused and whereas P.,W.1 stated in his evidence that about one year two months back at around 3’o clock in the night P.W.4 contacted that P.W.15-Hajaresab Kareemsab Masuthi, over a phone. Thereafter he went to the house of his neighbour. The same has been stated in their evidence for the prosecution. Their evidence reveals that the accused was said to be assaulted his wife with means of M.O.1-Stone and caused injuries on a vital part of her head. P.W.4 who went to the house of the accused along with 3-4 persons as where the accused was also present at the scene of crime when they had visited and they noticed bleeding injuries on the part of the forehead and so also on the left side parital regions. P.W.1 who has stated in his evidence that he secured the auto rickshaw to the house of the accused after he was informed about the incident by P.W.4. These witnesses are found to be relied upon by the prosecution to secure the conviction. P.W.15 being the neighbour, has stated in his evidence that about two years back in the early morning that he contacted by P.W.4 over a mobile phone and he has asked to secure P.W.1 being none other than the younger brother of the deceased. P.W.1 and P.W.4 said to have spoken about the incident over a mobile phone as there was an evidence for the prosecution to establish that there was some communication between P.W.1 as well as P.W.4 in a phone message. 6. The prosecution has not been able to project that there was an extra judicial confession as could be seen from paragraph no. 3 of his evidence as adduced by him. M.O.1-stone said to be lying on the side of the dead body of Gudumabi. 6. The prosecution has not been able to project that there was an extra judicial confession as could be seen from paragraph no. 3 of his evidence as adduced by him. M.O.1-stone said to be lying on the side of the dead body of Gudumabi. These materials are required to be appreciated by the trial Court in a proper perspective relating to the motive that has been set up, stating that the accused had an intention to do away life of his wife Gudumabi for having suspicious about her fidelity. 7. Whereas P.W.1 who has filed a complaint as per Ex.P.1. In the cross examination reveals that by the time he has reached the house of the accused where the scene of crime is situated therein, the accused was questioned by the elders of his village but he did not enquire with any of the person who were present there at that time. Therefore, the learned counsel for the appellant has contended that when he has reached the scene of crime and the elders were present he could not have questioned about the incident with the accused. As he was not present there when the accused revealed about the incident to the elders. Therefore, the evidence of P.W.1, who is the author of the complaint at Ex.P.1 is required to be appreciated carefully as the accused who is alleged to have assaulted with M.O.1-stone on the vital part of the head of the deceased-Gudumabi. M.O.1-stone is said to be seized by the Investigating Officer by conducting seizure mahazar as per Ex.P.1 in the presence of P.W.3 is required to be appreciated otherwise in this appeal as the trial Court has not appreciated the said facts in a proper perspective. 8. P.W.4 being the brother of the accused, but he did not support the case of the prosecution relating to the incident in the manner it is narrated in the complaint at Ex.P.1. But the prosecution projected him as he being an eyewitness. But he did not suggest that the accused had assaulted with means of M.O.1-stone on the vital part of the body of the deceased-Gudumabi. But the prosecution contended that, after he heard the sound of a quarrel ensuing between the accused as well as his wife-Gudumabi in his house, thereafter, he went inside the house and in his presence the accused assaulted the deceased with means of M.O.1-stone. But the prosecution contended that, after he heard the sound of a quarrel ensuing between the accused as well as his wife-Gudumabi in his house, thereafter, he went inside the house and in his presence the accused assaulted the deceased with means of M.O.1-stone. But it is not the evidence of P.W.4 that he witnessed the said incident that is assault by the accused on his wife Gudumabi with means of M.O.1-stone. But on the fateful day of the incident he was sleeping outside the house and his mother was also sleeping outside. But on that day at midnight his mother informed that the accused committed murder of his wife-Gudumabi and thereafter he went inside the house of the accused and found that the accused was present nearby the dead body and also found that M.O.1-stone was lying nearby the dead body. 9. P.W.1 who being the author of the complaint at Ex.P.1 and so also being the brother of the deceased, P.W.4 being the elder brother of the accused, their evidence is required to be appreciated in this appeal as the same has not been appreciated by the trial Court in a proper perspective. P.W.16 being the Doctor who conducted autopsy over the dead body and issued PM report as per Ex.P.1 and it indicates the injuries are as under: “One contusion measuring 5 cms x 2.5 cms at the right side of the forehead upto right side of the head, one contusion measuring 1.5 cms. X 4 cms. Near right ear, presence of blood clots in injury numbers 1 and 2 above, fracture of right frontal bone, presence of haemotoma below the eyes. He found fracture of right frontal bone, rupture of brain and presence of blood in the brain. That the injuries are ante mortem in nature and that death was due to injury and severe haemorrhage.” 10. M.O.1-stone was produced by the Investigating Officer and the same has been subjected to examination by him and issued the opinion/report as per Ex.P.14 said to be the injuries inflicted on the person of the deceased are possible by this material object. P.W.16 being the Doctor who conducted autopsy over the dead body and also he has been subjected to examination the m.O.1-stone and issued the opinion report at Ex.P.14. P.W.16 being the Doctor who conducted autopsy over the dead body and also he has been subjected to examination the m.O.1-stone and issued the opinion report at Ex.P.14. P.W.17-Manjunath being the Police Inspector of Kundagol Police Station, who has stated in his evidence that P.W.14 being the P.S.I. informed to him about the incident of murder of Gudumabi. Therefore, he went to the scene of crime and found the dead body was lying at the scene of crime. Therefore, he drew inquest mahazar as per Ex.P.2 in the presence of panch witnesses and so also he drew seizure mahazar as per Ex.P.3 for having seized M.Os.1 to 5, which bears the signature of P.W.2 and P.W.17. 11. P.W.4 said to be the brother of the deceased. He did not support the case of the prosecution. Therefore the contradictory statement got marked as Ex.P.5. P.W.5 was also subjected to examination and the portion of her statement has been got marked as Ex.P.6 and so also Ex.P.7. P.W.14 being the P.S.I. who has given information about the incident over a phone to P.W.17 and he recorded the FIR as per Ex.P.9, based upon the complaint at Ex.P.1. P.W.16 being a Doctor who conducted autopsy over the dead body and issued PM report as per Ex.P.13 and so also he issued the opinion report relating to M.O.1-stone subjected to examination and issued report as per Ex.P.14. P.W.4 and 5 did not support the case of the prosecution. P.W.5 said to be the eyewitness as has been projected for the prosecution and this witness have been subjected to cross examination after being treated as a hostile but nothing worthwhile has been elicited in her evidence. Therefore, the evidence of P.W.1 insofar as Ex.P.1-complaint contradicts the evidence of P.W.4 and P.W.5. 12. P.W.6-Dilshadbegum being the daughter of the deceased and so also the accused. P.W.7-Mehaboobsab being the son of the deceased as well as the accused. That these witnesses have been subjected to examination for the prosecution and they have categorically stated in their evidence that, on the fateful night that they were sleeping in front yard of their house as their father being an accused who come out from the house in the mid night and told that Gudumabi is not in a position to wake up. Therefore, their evidence indicate as they went inside the house and found that their mother Gudumabi sustained with blood injuries on the part of her head and subsequently she died at the scene of crime. But, in the scene of crime that their father being an accused as well as mother Gudumabi was sleeping inside the house on the fateful night, is in serious challenge. As this contention taken by the prosecution even to the extent of M.O.1-stone said to be lying by the side of the dead body and alleged to be used by the said accused for having causing injuries on the vital part of the deceased, which indicates at Ex.P.13-P.M. report but the evidence of P.Ws.6 and 7 is also contradicted by evidence of P.W.1, who is the author of the complaint-Ex.P.1 and he being the brother of the deceased. Therefore, the theory projected by the prosecution does not repose confidence that the accused had motive to do away his wife deceased Gudumabi by assaulting with means of M.O.1-stone on the vital part of her head. P.W.6 has been subjected to examination for the prosecution as she being the daughter of the accused as well as the deceased. She has stated in her cross-examination that the accused sometimes was not in a position to understand the things properly but the same is not brought out in the evidence of P.W.6. 13. P.W.6 and P.W.7 being the son and daughter of the accused and deceased Gudumabi as they have been subjected to examination for the prosecution for having to prove the guilt of the accused but in the cross examination of P.W.7 it was elicited that the accused was repeatedly quarrelling with the deceased Gudumabi. The motive relating to committing murder of the deceased by the accused is to be brought out in the evidence of P.W.7 being the son of the deceased. But, in the cross-examination of P.W.7 it is stated that the accused was not keeping good mental health but there was some evidence on the part of the prosecution such as evidence of P.Ws.6 and 7 that the accused sometimes was not in a position to understand the things properly as he was not in good mental health condition. But, in the cross-examination of P.W.7 it is stated that the accused was not keeping good mental health but there was some evidence on the part of the prosecution such as evidence of P.Ws.6 and 7 that the accused sometimes was not in a position to understand the things properly as he was not in good mental health condition. Therefore, it requires to be looking into the object of Sec. 84 of I.P.C. Whether the accused come under the category of the said provision for suffering from mental health condition. The accused as well as the deceased was sleeping in the scene of crime as a room in the house of the accused as soon after the commission of an offence that he confessed before P.Ws.4, 6 and 7. 14. P.W.4 is the brother of the accused, P.W.6 and P.W.7 are the children of the deceased Gudumabi. But their evidence are not consistent to each other insofar as the evidence of P.W.1, he being the brother of the deceased filed a complaint as per Ex.P.1. Whereas the trial Court has misdirected as well as misread the evidence of P.W.1, P.W.4, P.W.6 and P.W.7 including the evidence of P.W.17 who is the Investigating Officer and laid the charge sheet against the accused. P.W.14 being the Investigating officer conducted investigation in part who has informed about the incident of murder of Gudumabi. P.W.17 being the Police Inspector subsequent to information about the incident has stated that he rushed to the house of the accused and found the dead body of Gudumabi. She was lying at the scene of crime and he prepared the inquest mahazar as per Ex.P.2 and also prepared the spot cum seizure mahazar as per Ex.P.3, under that mahazar he has seized M.Os.1 to 5. Therefore, in this appeal it is required to re-appreciate the entire evidence on record in a proper perspective as the trial Court has not appreciated the entire evidence on record relating to the motive and so also commission of murder of the deceased by assaulting with means of M.O.1 as a result of she sustained injury on the vital part of the head. As the trial Court was rendering judgment it appears to be vitiated by perversity and also failed to appreciate the evidence properly insofar as the evidence of P.W.6 and P.W.7 being the children of the accused as well as the deceased, about the accused committing murder of the deceased suspecting the fidelity of his wife Gudumabi. On all these grounds as urged by the learned counsel for the appellant and seeking for allowing the appeal by setting aside the judgment of conviction and sentence held against him u/S 302 of IPC in S.C. No.34/2007 dated 30.01.2008 and consequently to acquit the accused for the aforesaid charges framed against him. 15. As the accused who is in judicial custody since from the date of his arrest and even after being held guilty and his conviction. Therefore, the period in which he had undergone, i.e., almost 11 years and 11 months, is in terms of sentence and to meet the ends of justice. Moreover the prosecution has not been able to prove the guilt of the accused u/S 302 of IPC by placing cogent, corroborative and acceptable evidence but the same will come under second part of Sec. 304 of IPC instead of Sec. 302 of IPC. Despite the same, the trial Court has convicted him for the offence u/S 302 of IPC. This contention is also taken by the learned counsel for the appellant for seeking intervention of the judgment of conviction and sentence and seeking for acquittal of the accused. 16. Learned Addl. State Public Prosecutor for the State has supported the judgment of conviction and sentence held by the trial Court in S.C. No. 34/2007 for the offence punishable u/S 302 of IPC as wherein the prosecution has relied upon the evidence of P.W.1 who is the brother of the deceased Gudumabi and also he has filed a complaint as per Ex.P.1 as he got information about the incident at about 3.00 AM in the night hours as P.W.4 who contacted over the phone as the accused said to have committed murder of his wife Gudumabi in his house by assaulting with means of stone as M.O.1. The accused was present at the scene of crime when he rushed to the house of the deceased and also that M.O.1 stone which was lying nearby the dead body. 17. The accused was present at the scene of crime when he rushed to the house of the deceased and also that M.O.1 stone which was lying nearby the dead body. 17. The trial Court has rightly appreciated the evidence of P.W.1, P.W.6 and P.W.7 coupled with the evidence of P.W.17 who being an Investigating Officer and also for having conducted seizure mahazar as per Ex.P.3 as under that mahazar he has seized M.O.1 to 5. P.W.6 and P.W.7 have supported the case of the prosecution which is in conformity with the evidence of P.W.1 as in terms of the accusation made in the complaint at Ex.P.1 as filed by the P.W.1 who is none other than the younger brother of the deceased. 18. P.W.6 and P.W.7 have been subjected to cross-examination by the counsel for the accused and they have seen the incident itself but in cross-examination they have categorically stated that on the fateful day at night that P.W.6 and P.W.7 were sleeping in front of the yards of their house. The accused who had come out from the house in the mid night and told that Gudumabi is not in a position to wake up. Therefore, their evidence indicates that they went inside the house and found that their mother Gudumabi with bleeding injuries on the head and dead inside the house. But, at the scene of crime the accused as well as his wife deceased Gudumabi were sleeping inside the house on that night. The same is not under serious challenge. The evidence of P.W.1, P.W.6 and P.W.7 has been appreciated by the trial Court and assigned reasons to come to the conclusion that the prosecution has proved the guilt of the accused. P.W.16 being the Doctor conducted autopsy over the dead body and issued postmortem report as per Ex.P.13 and it indicates the injuries inflicted on the vital part of the head of the deceased and also he has been subjected to examination in chief and marked the M.O.1-stone and his opinion report as per Ex.P.14. The evidence of P.W.16 has been corroborated with the evidence of P.W.1 who is the author of complaint at Ex.P.1. and so also evidence of P.W.6 and P.W.7 who are the children of the deceased and they have stated in their evidence that their father used to pick up quarrel with their mother Gudumabi. The evidence of P.W.16 has been corroborated with the evidence of P.W.1 who is the author of complaint at Ex.P.1. and so also evidence of P.W.6 and P.W.7 who are the children of the deceased and they have stated in their evidence that their father used to pick up quarrel with their mother Gudumabi. There is no perversity found in the judgment and sentence ordered by the trial Court and no intervention is sought for in this appeal as the appeal is devoid of merit and seeking for dismissal of the appeal by confirming the judgment of conviction and sentence ordered by the trial Court against the accused for the offence punishable u/S 302 of IPC in S.C. No. 34/2007. 19. The prosecution has placed much reliance on the evidence of P.W.1 who is none other than the younger brother of the deceased Gudumabi as his sister’s marriage was performed with the accused about 12 years ago. Subsequent to her marriage she was blessed with two children, who are P.W.6 and P.W.7 as he got information about the death of his sister Gudumabi from P.W.4 who is none other than the brother of the accused. Subsequent to the information about the incident of murder of his sister, he rushed to the house of the accused where the scene of crime is situated, that is on the intervening night of 30.10.2006 and 31.10.2006, the accused as well as the deceased were sleeping inside a portion of his house as their children P.W.6 and P.W.7 were sleeping in front yard of the said house but the accused is said to have committed murder of his wife Gudumabi on 31.10.2006 at around 1:30 hours in the night assaulting her by means of M.O.1-stone on the part of her head as a result of which she sustained fatal injuries and succumbed to injuries at the scene of crime. M.O.1-stone which was lying by the side of the dead body of Gudumabi. The same has been seized under Ex.P.3 seizure mahazar by P.W.17 being the investigating officer. M.O.1 has been subjected to examination by P.w.16 being a Doctor who has issued opinion report as per Ex.P.14. Whereas P.W.16 being a Doctor who conducted autopsy over the dead body of Gudumabi and issued postmortem report as per Ex.P.13 wherein it indicates infliction of injuries on the vital part of the head. M.O.1 has been subjected to examination by P.w.16 being a Doctor who has issued opinion report as per Ex.P.14. Whereas P.W.16 being a Doctor who conducted autopsy over the dead body of Gudumabi and issued postmortem report as per Ex.P.13 wherein it indicates infliction of injuries on the vital part of the head. The cause of death is due to head injury, severe hemorrhage, severe blood loss and multiple organ failure. 20. P.W.6-Dilshadbegum being the daughter has been examined by the prosecution and has spoken of her father consuming alcohol during the same night, he was not returning to the house regularly and her father getting angry frequently. She could not hear any sound inside the house. She has not seen the accused assaulting her mother with means of M.O.1. That the accused sometimes was not in a position to understand the things properly. This is the evidence that has been adduced and also elicited in the cross-examination for the accused. P.W.7-Mehaboobsab Moulasab Shiggavi stated in his cross-examination that he was sleeping outside the house as his father being an accused was in the habit of consuming alcohol and he was not returning to the home on some nights. He did not hear the cry of his mother Gudumabi as her father being an accused was not in good mental health condition. He did not hear any sound inside the house as where the scene of crime is situated. P.W.6 and P.W.7 being the minor children of the deceased and the accused, for having subjected to examination for the prosecution, their evidence requires to be scrutinized carefully as they are the child witnesses as the accused who is facing trial for the offence u/S 302 of IPC and that too committing of murder of his wife Gudumabi by assaulting with means of M.O.1-stone on the vital parts of her head. But the prosecution has placed much reliance on the evidence of P.W.6 and P.W.7 inclusive of evidence of P.W.1 who being the brother of the deceased and so also the author of the complaint at Ex.P.1. But their evidence is contradicted to the evidence of P.W.4 and P.W.5 they have given a go-bye to the version of their statement at Ex.P.5 and Ex.P.6 and further contradicted to the statement at Ex.P.7 of P.W.5 said to be recorded by P.W.17 who has laid the charge sheet against the accused. But their evidence is contradicted to the evidence of P.W.4 and P.W.5 they have given a go-bye to the version of their statement at Ex.P.5 and Ex.P.6 and further contradicted to the statement at Ex.P.7 of P.W.5 said to be recorded by P.W.17 who has laid the charge sheet against the accused. There is no dispute about the death of Gudumabi being the wife of the accused as well as being the mother of P.W.6 and P.W.7 but the accused was suspecting the fidelity of his wife Gudumabi. Therefore, he intended to do away with her life. On the intervening night of 30.10.2006 and 31.10.2006 at around 1:30 hours in the midnight that the accused said to be committed murder of his wife Gudumabi by assaulting with means of M.O.1-stone and infliction of injuries on her head as indicate by Ex.P.13-postmortem report said to be issued by P.W.6 being a Doctor. The motive behind committing murder of the deceased Gudumabi as the accused who suspected her fidelity as relating to the motive to be established by the prosecution that P.W.6 and P.W.7 have been examined for the prosecution as they are the child witnesses. Therefore, their evidence is to be scrutinized on the evidence of P.W.1, P.W.6 and P.W.7 to secure the conviction for the offence u/S 302 of IPC. 21. Whereas the learned counsel for the appellant has taken us through the evidence of the prime witnesses for the prosecution and contending that the trial Court has erroneously come to the conclusion that the prosecution has proved guilt of the accused as u/S 302 of IPC even though evidence has not been placed to prove beyond all reasonable doubt to secure the conviction for the aforesaid offence u/S 302 of IPC. There is no dispute about the death of the deceased Gudumabi in the house of the accused as on the intervening night as where the accused and so also his wife Gudumabi slept inside the house. There is no dispute about the death of the deceased Gudumabi in the house of the accused as on the intervening night as where the accused and so also his wife Gudumabi slept inside the house. The dead body was lying in the room of the house of the accused and by the side of the dead body the M.O.1-stone was lying as per the evidence of P.W.1 being the brother of the deceased Gudumabi who has filed complaint as per Ex.P.1 and the counsel has been contending that it does not come under the purview of Sec.302 of IPC but it will come under the purview of Sec. 304 part II of IPC. If the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause bodily injury as is likely to cause death. But this Section provides the punishment for culpable homicide not amounting to murder and draws a distinction between the penalty to be inflicted where an intention of kill being present but in the instant case the accused has committed murder of his wife Gudumabi with means of M.O.1-stone. But this falls within one of the exception of Sec.300 of IPC and those cases in which the crime is culpable homicide not amounting to murder. If the act comes under clause 4 of Sec. 300 of IPC but it is covered by any of the exceptions it will be punishable under the second part. 22. Insofar as the first part of this Section applies where there is a guilty intention and second part applies where there is no intention but there is no guilty knowledge but in the present case on hand there is no guilty knowledge to commit murder of the deceased Gudumabi by assault with means of M.O.1-stone said to be used by the accused. Therefore, it falls under Sec. 304 of Part II of IPC, 1860 and not fall under Section 302 of IPC. But the trial Court has held conviction against the accused for the offence punishable u/S 302 IPC based upon the evidence of P.W.1, P.W.6 and P.W.7 as they are the material witnesses for the prosecution. Therefore, it falls under Sec. 304 of Part II of IPC, 1860 and not fall under Section 302 of IPC. But the trial Court has held conviction against the accused for the offence punishable u/S 302 IPC based upon the evidence of P.W.1, P.W.6 and P.W.7 as they are the material witnesses for the prosecution. But this appeal requires re-appreciation of the entire evidence on record such as evidence of the aforesaid material witnesses coupled with the evidence of P.W.17 being the investigating officer who laid the charge sheet against the accused by conducting spot mahazar as per Ex.P.2 and so also seizure mahazar as per Ex.P.3 for having seized M.O.1 to 5 under that mahazar in the presence of panch witnesses. 23. Whereas part II of Sec. 304 of IPC, 1860, it comes into play when death is caused by doing an act with knowledge that it is likely to cause death but there is no intention on the part of the accused either to cause death or cause bodily injury as is likely to cause death. But, Ex.P.13 the postmortem report issued by P.W.16 being a Doctor who conducted autopsy over the dead body caused bodily injury or as indicates that the injuries were inflicted on the person of the deceased and cause of death is due to the head injury, severe hemorrhage, severe blood loss and multiple organs failure. Therefore, keeping in view the evidence of P.W.1 insofar as the complicity of the crime said to be committed by the accused in a complaint as filed by him and so also the evidence of P.W.6 and P.W.7 said to be the children of the deceased as well as the accused are concerned in this case it is requires to be considering as the case is fall under Section 304 part II of IPC and not fall under Section 302 of IPC as where the trial Court has held conviction for the aforesaid offences which is challenged under this appeal. 24. The accused who is in judicial custody since from the date of his arrest and almost all for a period of 11 years and 11 months as he was apprehended by the Police on 31.10.2006. 24. The accused who is in judicial custody since from the date of his arrest and almost all for a period of 11 years and 11 months as he was apprehended by the Police on 31.10.2006. Therefore, we are of the opinion that the period in which he has undergone during the course of the trial as well as even after held guilty shall be termed as service of sentence and to meet the ends of justice. Accordingly, in this appeal intervention is to the extent of sentence as held by the trial Court and modified as an offence that fall under Section 304 part II of IPC and does not fall under Section 302 of IPC. Therefore, the conviction u/S 302 of IPC held by the trial Court in S.C. No. 34/2007 is hereby set aside and its held conviction is for the offence u/S 304 part II of IPC and the period which he has already undergone shall be termed as service of sentence to meet the ends of justice. Accordingly, we pass the following order. ORDER The appeal is allowed in part. The judgment of conviction and order of sentence passed by the learned 1st Addl. District & Sessions Judge, Dharwad, sitting at Hubli, in S.C. No. 34/2007 dated 30.01.2008 convicting the appellant for the offence u/S 302 of IPC and sentencing to undergo rigorous imprisonment for life is hereby set aside. However, the accused is convicted for the offence punishable under part II of Sec. 304 of IPC. The period in which he has undergone in custody is treated as service of sentence. Registry shall be directed to forward operative portion of this judgment to the concerned jail authorities as where the accused is lodging, to set him at liberty forthwith, if he is not required in any other case, for compliance.