JUDGMENT : PRAKASH D. NAIK, J. 1. The Appellant is tried vide Sessions case No.550 of 2010. The Appellant have been convicted vide judgment and order dated 06.11.2012 passed by Additional Sessions Judge, Pune for the offence punishable under Section 302 of Indian Penal Code (hereinafter referred to as "IPC") and sentenced to suffer imprisonment for life and to pay a fine of Rs. 5000/- and in default to suffer imprisonment for one year. 2. Briefly stated, prosecution case is as follows : a. On 20.05.2010, Sonu Arun Chavan lodged report alleging that his sister Nazneen was married to accused Javed Qureshi (accused) about 15 years back, having two children viz Umar and Kaynat out of wedlock used to reside in Sayyad Nagar with him. The accused was addicted to liquor. He used to assault Nazneen on trivial reasons. b. On 18.05.2010 at about 05:30 pm, the complainant received a phone call from Umar (son of accused and deceased) who informed him that the accused had assaulted Nazneen and she has fainted. The complainant reached Sayyad Nagar. He found that accused and nearby residents had moved Nazneen (deceased) to Noble Hospital. It is further alleged that since last 2 to 3 days, the accused was not doing any work and was under the influence of liquor. He was picking up a quarrel with Nazneen and assault her. c. On 18.05.2010 at about 04:00 pm to 04:30 pm, the accused had consumed liquor and quarreled with Nazneen. It is alleged that Nazneen had asked him as to how she can pull if all the time he consumes liquor. The accused picked up quarrel and assaulted Nazneen by means of wooden stool. He gave blows on stomach and head. She fainted and fell down. The accused continued to assault her with kicks and fist blows. She was admitted to Nobel Hospital. The accused had stated that Nazneen had epilepsy attack and she had sustained injuries due to fall. On the complaint of Sonu Chavan, FIR was registered vide CR No. 137 of 2010 under Section 307 of IPC. However during the course of treatment injured Nazneen succumbed to death on 23.05.2010, hence offence under Section 307 of IPC was converted to Section 302 of IPC. The offence was also registered under Section 498-A of IPC. The investigation was carried out by Wanawadi Police Station. Statements of witness were recorded. However during the course of treatment injured Nazneen succumbed to death on 23.05.2010, hence offence under Section 307 of IPC was converted to Section 302 of IPC. The offence was also registered under Section 498-A of IPC. The investigation was carried out by Wanawadi Police Station. Statements of witness were recorded. Inquest Panchnama was drawn and postmortem was conducted. Viscera of the deceased was preserved and sent to CA. After completion of investigation, the charge-sheet was filed and the case was committed to the Court of Sessions. 3. The charge was framed against the accused under Section 498-A and 302 of IPC vide order dated 30.11.2011. As per charge, the accused being husband of Nazneen subjected her to cruelty under the influence of liquor by beating her on trifle grounds which was of such a nature as was likely to drag her to commit suicide or to cause grave injury or danger to her life, limb or health and thereby committed offence under Section 498-A of IPC. On 18.05.2010, the accused committed murder at his residence intentionally or knowingly causing the death of Nazneen by assaulting her by means of wooden stool and thereby committed an offence punishable under Section 302 of IPC. 4. The prosecution has examined thirteen witnesses. The Statement of the accused was recorded under Section 313 of Criminal Procedure Code. The defense of the accused as per the said statement is that his in-laws were not happy about her marriage with Nazneen. They have tutored to the children and implicated him in false case. His wife was suffering from epileptic attack due to which she fell on wooden stool and sustained injuries. 5. Pw-1 Sonu Chavan is the brother of the deceased Nazneen. He lodged the complaint. PW-2 Umar Qureshi is the son of accused and deceased. PW-3 Shashikant is Assistant Sub-inspector. He collected medical certificate of fitness of deceased dated 20.05.2010. PW-4 Ravindra Baghsingh is spot Panch in relation to Panchanama dated 23.05.2010. PW-5 Dr. Amol Shinde is autopsy surgeon. He conducted post-mortem. PW-6 Dr. Anjali Ingle is the medical officer, Sassoon Hospital. PW-7 Nisar Shaikh is the landlord of the accused. He assisted in taking the injured to the Hospital. PW-8 Jayshree Ingulkar is the neighbor of accused/deceased. PW-9 Azhar Kazi is spot panch in relation to Panchanama dated 28.05.2010. PW-10 Dattatray Mane is the investigating officer. He conducted post-mortem. PW-6 Dr. Anjali Ingle is the medical officer, Sassoon Hospital. PW-7 Nisar Shaikh is the landlord of the accused. He assisted in taking the injured to the Hospital. PW-8 Jayshree Ingulkar is the neighbor of accused/deceased. PW-9 Azhar Kazi is spot panch in relation to Panchanama dated 28.05.2010. PW-10 Dattatray Mane is the investigating officer. He collected medical certificate of fitness of deceased. PW-11 Ajit Khadke is investigating officer. PW-12 Kaynat Qureshi is the son of accused/deceased. PW-13 Hemlata Kadam is investigating officer. 6. The trial Court after analyzing the evidence had come to the conclusion that the prosecution has proved the charge under Section 302 of IPC and the Appellant is convicted for the said offence. However as far as charge under Section 498-A of IPC, the accused/Appellant was acquitted. While acquitting the accused for the said charge, the trial Court has observed that the victim was married to the accused 15 years back. He was addicted to liquor. PW-1 has deposed that the accused used to spend money on liquor and gambling. He used to assault Nazneen and her children, however this incidents were occurred about 5 to 6 years back prior to death of Nazneen. After appreciating the evidence of witnesses, the Court has observed that the facts which are stated before the Court by PW-1 are not at all corroborated nor there is any document to show that prior to the incident dated 18.05.2010, the accused had assaulted and harassed Nazneen for un-lawful demand of money and for any valuable security or is on account of failure by her or any person related to her to meet such demands. There is nothing on record to show that accused was coercing her for meeting his un-lawful demand. The last quarrel though established is not sufficient to hold that accused is guilty of the offence under Section 498-A of IPC. 7. Learned Advocate for the Appellant Mr. Khan Abdul Wahab submitted that the prosecution has not been able to establish the charge under Section 302 of IPC against the Appellant beyond all reasonable doubt. PW-1 is not eye witness. His evidence is hear-say. There is delay of 2 days in lodging the complaint. The delay has not been explained. The evidence of PW-7 and PW-8 suffers from contradictions and omissions. They did not inform the incident to the police. PW-1 is not eye witness. His evidence is hear-say. There is delay of 2 days in lodging the complaint. The delay has not been explained. The evidence of PW-7 and PW-8 suffers from contradictions and omissions. They did not inform the incident to the police. PW-2 has deposed that he came to Court with his maternal uncle. It is submitted that the accused had strained relationship with maternal uncle of the witness. He was tutored and was under the influence of the parents of deceased. The statement of the PW-12 was recorded after 20 days and statement of PW-2 was recorded after 5 days from the date of incident. Both of them were in custody of influential witnesses. Their evidence suffers from serious infirmities. PW-9 who acted as a Panch was close to PW-1. The charge under Section 498-A of IPC has not been proved and the Appellant is acquitted. The deceased was suffering from epilepsy and the injuries were sustained by her due to fall. Learned Counsel pointed out the deposition of the witnesses and submitted that considering the nature of evidence benefit of doubt ought to be given to the Appellant. In the alternative, Learned Counsel submitted that the evidence on record would indicate that there was no intention to commit murder. The Appellant could be at the most attributed the knowledge that death would cause but in the absence of intention, he cannot be convicted for an offence under Section 302 of IPC, the case would fall within the purview of Section 304 (II) of IPC. The Appellant is in custody for more than 7 years and he may be released on the basis of sentence undergone by him. 8. Learned APP submitted that there is strong evidence against the accused. The prosecution has established the charge under Section 302 of IPC. There is no reason to disbelieve the version of the witnesses. PW-2 and PW-12 are minor children of the accused and deceased. They are the eye witnesses. They were aged about 12 years and 11 years at the time of incident. They have given the ocular account of the incident and has attributed overt act of assaulting the deceased to the Appellant. There is no reason to doubt the genuineness of their version. Merely on account of delay in recording their statement would not affect veracity of their evidence. They have given the ocular account of the incident and has attributed overt act of assaulting the deceased to the Appellant. There is no reason to doubt the genuineness of their version. Merely on account of delay in recording their statement would not affect veracity of their evidence. The mother of the witnesses was assaulted and hospitalized. Subsequently she died, the witnesses were under trauma and therefore in such situation there may be a delay in recording statement which would not be fatal to the prosecution. 9. It is further submitted that the medical evidence establishes that the assault caused by the Appellant caused in death of the victim. The Appellant had intended to cause death of the victim. Hence the prosecution has proved and charge under Section 302 of IPC and thus the appeal may be dismissed. 10. We have scrutinized the evidence PW-1 has deposed that he received a phone call from PW-2 and he was informed that the accused is assaulting Nazneen. The injured was taken to the hospital. After 2 days, the accused ran away from the hospital. He learnt from the near by residents that the accused had assaulted his sister with fist kicks and blows of wooden stool. PW-2 is the son of accused and deceased. He has stated in examination in chief that his father had consumed liquor. His mother had asked him to give some money for domestic expenses. Quarrel took place between them. The accused assaulted his mother with fist and kicks. The door was locked from inside. The wooden stool was used for the worked of embroidery was lifted and the accused assaulted the victim. Blows were given on left side ribs, left hand, neck and head, when the victim fell down, accused opened the door. Accused had poured water on the person of the victim mother. She was taken to hospital by auto rickshaw. Even father (Accused) had gone to Noble Hospital by the said auto rickshaw. Blows were given on left side ribs, left hand, neck and head, when the victim fell down, accused opened the door. Accused had poured water on the person of the victim mother. She was taken to hospital by auto rickshaw. Even father (Accused) had gone to Noble Hospital by the said auto rickshaw. In the cross-examination, he has stated that the facts that his mother had demanded money for domestic expense, the father refused to pay and on that count quarrel took place, the mother said to father as to how she can manage the domestic expenses, school fees of the children, father had assaulted his mother with kick and fist blows, he had locked the door of the house from inside his father had lifted wooden stool and gave blow on the left side of ribs, left hand and neck, mother had sustained bleeding injury and they were shouting, father opened the door poured water were stated to the police but these facts are not appearing in his statement. PW-3 is police officer attached to Wanwadi Police Station collected certificate of State of condition of patient in the hospital wherein it was mentioned that the patient is not in condition of giving statement. PW-4 is the Panch for inquest Panchnama. The defense has argued that he was acquainted with Jamil Sayyad and PW-1 and that he had come to Court with Jamil Sayyad (relative of deceased). The said witness is closely acquainted with the aforesaid persons and his version should not be accepted. PW-5 Dr. Shinde conducted postmortem. He has deposed that on external examination, the injuries were noticed viz contused abrasion present over left erygomatico temporal region, 6x4 cm brownish black irregular; Abrasion present below chin on left side, 1x0.5 cm brownish black scab present irregular; Multiple abrasions present over left pectoral region sizes varying from 3x1 cm to 0.5x5 cm irregular, reddish brown. On internal examination the injuries such as Underscalp haematoma was present over left temporal, frontal and parietal region size 15x10 cm, Meninges intact, congested. Brain intact, congested oedematous. The cause of death was due to head injury. The injuries in clause No. 17 of the postmortem corresponding with injuries mentioned in clause No.19 of the said document was possible by hard and blunt object. The injuries are possible if a person assaults of hits any person with wooden stool. Brain intact, congested oedematous. The cause of death was due to head injury. The injuries in clause No. 17 of the postmortem corresponding with injuries mentioned in clause No.19 of the said document was possible by hard and blunt object. The injuries are possible if a person assaults of hits any person with wooden stool. The injuries mentioned in column No. 17 and column No. 19 are sufficient in ordinary course of nature to cause death in all probabilities sufficient to cause death. The injuries No. 2 and 3 from column No. 17 are simple in nature. The injuries No.2 and 3 from column No. 17 are possible if a person falls on hard and blunt object. They are not possible at one and the same time but possible individually. The injury No. 1 is possible if a person falls on hard and blunt surface like wooden or iron table. The age of the injury mentioned in clause 17 Sr. No. 1 to 3 is not mentioned the postmortem notes. The nature of injuries like simple or grievous is not mentioned. The internal injury No. 1 from column No. 19 is possible if a person falls on hard and blunt object like wooden stool or iron table. There was no fracture to the skull. It is not possible that the deceased might have sustained injuries mentioned in clause 17 and 19 if she would have fallen on hard and blunt object like iron table or wooden table if she had sustained epilepsy attack. PW-6 Dr. Ingle had examined organs and submitted report Exhibit-48. PW-7 has stated that accused used to pick up quarrel with victim after consuming liquor. 11. The accused used to consume liquor and pick up quarrel with his wife. PW-8 Jayshree is the neighbour. She has stated that the accused used to consume liquor frequently and quarrel with his wife. His son told her that accused had assaulted his mother with wooden stool. PW-9 is a spot Panch. Article No. 1 was seized. In the cross-examination, he has stated that he and PW-1 are residing in the same area and he is a friend of PW-1. PW-10 conducted investigation. PW-11 and 13 also part of investigating. PW-12 is the son of accused/ deceased. He has referred to the assault by the Appellant. The accused gave blow of the wooden stool on the head of the victim. PW-10 conducted investigation. PW-11 and 13 also part of investigating. PW-12 is the son of accused/ deceased. He has referred to the assault by the Appellant. The accused gave blow of the wooden stool on the head of the victim. The victim had sustained injury and fainted. The accused gave the blow of wooden stool on her head. She further stated that the neighbours had heard noise of quarrel and gathered on the spot. The accused and her uncle took the victim to the hospital. After about 20 days of the incident police made inquiry with her statement was recorded in the cross-examination certain omissions were brought on record. She stated that her father used to do work in the house, he tied hands of the said witness and PW-2. She had also stated before the police that after the incident her father opened the door. However these facts are not appearing in her statement. PW-13 was one of the Investigating Officer. She gave a report to police station along with Panchnama. 12. On scrutiny of evidence it is apparent that the incident of assault had occurred on 18.05.2010. The FIR was lodged on 20.05.2010. The victim died on 23.05.2010. There are two eye witnesses to the incident i.e PW-2 and PW-12. There are some omissions in the evidence of the said witnesses. However both the witnesses have given consistent version about the quarrel between the Appellant and their mother. The Appellant has assaulted the victim by wooden stool by giving blow on her head. There are omissions qua assault on the other part of the body. The medical evidence show that the cause of the death is head injury. The case of the prosecution is that death of Nazneen is homicidal. The defense has tried to being on record that the death was accidental. Inquest Panchnama was carried out by the police. The injuries sustained by the victim were pointed out by PW-5 who conducted the postmortem. PW-5 has stated that after conducting postmortem they found probable cause of death was due to head injury. However in order to rule out any other cause, they had preserved viscera and sent the same for chemical analysis. He has stated that injuries are mentioned in column 17 are corresponding with column 19 of postmortem report and they are possible with hard and blunt object. However in order to rule out any other cause, they had preserved viscera and sent the same for chemical analysis. He has stated that injuries are mentioned in column 17 are corresponding with column 19 of postmortem report and they are possible with hard and blunt object. The injuries are possible if a person was assaulted by article like wooden stool. PW-6 performed hist-pathological of examination of viscera. Thus the injuries found on the body of the deceased were antemortem. The stool is hard and blunt object. The evidence of PW-2 and PW-12 refers to role played by the accused. They are minor children. Both these witnesses have stated that their father was addicted to liquor. He used to pick up quarrel. The conduct of the accused was also highlighted by PW-7 and PW-8. There is no reason to disbelieve the version of PW-2 and PW-12 about assault by the accused by stool on the head of the deceased. It is true that the assault on the other part of the body as deposed by PW-2 was brought up as omissions. The delay in recording the statement of the said witnesses would not be fatal to the prosecution case. The witnesses are minor. The accused is their father and the victim is their mother. The victim was hospitalized. She was in a serious condition. The children were obviously under trauma and in the circumstances recording of the statement of PW-2 after 5 days and that a PW-12 at a latter stage would not be sufficient to discard their evidence. Thus the fact that the Appellant has assaulted his wife which has resulted in her death has been established by the prosecution. 13. The trial Court however convicted the Appellant for the offence under Section 302 of IPC. The reasoning for convecting the Appellant for the said offence are reflected in Paragraph Nos. 41 to 43 and 45 of the impugned judgment. The Court has referred to exceptions provided under Section 300 of IPC and has observed that the case would not fall within any of the exception. It is further observed that admittedly in the present matter question of having intention to kill Nazneen was not present but the question regarding knowledge of the reparation of act is important. The Court has referred to exceptions provided under Section 300 of IPC and has observed that the case would not fall within any of the exception. It is further observed that admittedly in the present matter question of having intention to kill Nazneen was not present but the question regarding knowledge of the reparation of act is important. The accused had assaulted his wife by means of wooden stool and certainly had the knowledge that the object is heavy and of blunt nature. Any persons hit by such an object will sustain injuries and may succumb to death. Though there are no grievous injuries found on the external body part of deceased Nazneen, the internal damage done to the body of Nazneen has caused her death. It is further observed that the accused gave multiple blows on the body of Nazneen by wooden stool which resulted into her death. The entire evidence brought on record by prosecution leads to hold that the accused is guilty of commission of murder. It is apparent that the trial Court has misconceived the provisions of law although trial Court had given finding that the intention to kill was not present, the trial Court has erroneously concluded that the accused had a knowledge that death would be caused and therefore liable to be convicted for murder. The trial Court has completely overlooked the provisions of Section 304 (Part-I) and (Part-II) of IPC. The trial Court has ruled out intention of accused however, on the basis of the fact that the accused would have a knowledge that death would be caused although there is no intention the Appellant have been convicted for murder. 14. On scrutinizing evidence, evidence of eye witnesses, evidence of medical officer, postmortem report and other evidence any relevant documents we are of the opinion that it cannot be said that the accused had any intention to kill the deceased. The trial Court has opined that there was no intention but there was knowledge. In the light of the above circumstances, the accused ought not to have been convicted for the offence of murder. The trial Court has acquitted the Appellant for the offence under Section 498-A of IPC. The alleged harassment deposed by PW-1 and the other witnesses was held to be not sufficient to hold the Appellant guilty for the offence under Section 498- A of IPC. The trial Court has acquitted the Appellant for the offence under Section 498-A of IPC. The alleged harassment deposed by PW-1 and the other witnesses was held to be not sufficient to hold the Appellant guilty for the offence under Section 498- A of IPC. The marriage between the Appellant and the deceased was solemnized 15 years ago. PW-2 has stated that there was a quarrel between the Appellant and his mother. Consequently, the Appellant accused assaulted Nazneen by wooden stool, lying in the house which was used for carrying by embroider work. Although the witnesses have referred to assault on ribs, hand neck and head. The defense has been able to point out that the reference to assault on ribs hand and neck was not reflected in the statement and was in the form of omission. It is also apparent from the evidence of PW-2 that the Appellant accused had also gone to Noble Hospital by the auto-rickshaw in which his mother was taken to Hospital. The Appellant had also poured water on the person of the victim. PW-12 - Kaynat has also stated that there was a quarrel and the accused had given blow of the wooden stool on the head of the victim. She fainted and fell down. He has also stated that on 18.05.2010, his father (Appellant) had consumed liquor and there was quarrel as his mother had questioned the victim. PW-5 Dr. Shinde has referred to the injuries on the body of the deceased. The injuries are narrated herein above. The cause of death was not confirmed and in the postmortem report, the opinion as to cause of death was not reflected stating that evidence of head injury however subsequently after the histopathological report vide Exhibit-66. The final cause of death was referred to as head injury. The medical case papers pertaining to treatment given to the deceased at Noble Hospital are not on record. PW-5 has also stated that instruments by which injuries were inflicted was not referred to him. Injuries No. 2 and 3 in column No. 17 are simple in nature. The injury No. 2 and 3 referred to column No. 17 are abrasion present below chin on left side and multiple abrasions present over left pectoral region (left side of chest - ribs). PW-5 has also stated that injury Nos. Injuries No. 2 and 3 in column No. 17 are simple in nature. The injury No. 2 and 3 referred to column No. 17 are abrasion present below chin on left side and multiple abrasions present over left pectoral region (left side of chest - ribs). PW-5 has also stated that injury Nos. 2 and 3 from column No.12 of postmortem report are possible if a person falls on hard and blunt object. Injury No. 1 is possible if a person falls on hard in surface like wooden stool. It is admitted that nature of injuries like simple and grievous are not mentioned and internal injury No. 1 from column No. 19 is possible if a person falls on a hard and blunt object like wooden stool or iron table. There was no fracture to the skull of the deceased. However the Doctor has categorically stated that it is not possible that the deceased might have sustained injuries mentioned in clause No.17 and 19 if she would have fallen on hard and blunt object like iron table or wooden stool, if would have sustained epilepsy attack. 15. Thus the incident has occurred all of a sudden. The assault was during the quarrel between the accused and the deceased. The article was lying in the house. The accused had accompanied the injured to the hospital. Considering the aforesaid circumstances and even considering the findings of the trial Court that there was no intention to commit murder, we are of the considered opinion that the case of the accused would be covered by Section 304 (Part-II) of IPC. Learned APP has pointed out that the Appellant has undergone sentence of about 7 years 9 months 7 days up to 31.03.2019. Conviction of the Appellant accused under Section 302 of IPC is thus required to be set aside by converting the same to 304 (Part-II) of IPC. Hence we pass the following order. ::ORDER:: The judgment and order dated 6th November, 2012, delivered by the Additional Sessions Judge, Pune in Sessions Case No.550 of 2010, is modified and the Appellant is convicted for the offence punishable under Section 304(Part-II) of Indian Penal Code. 2. With the reason his conviction and sentence imposed upon him for offence under Section 302 of IPC is set aside. 3. 2. With the reason his conviction and sentence imposed upon him for offence under Section 302 of IPC is set aside. 3. The period already spent in jail by him is substituted as punishment for offence punishable under Section 304(Part-II) of IPC. 4. He shall be set at liberty immediately if his custody is not required by State in any other matter. 5. The muddemal property be dealt with, as directed by trial Court, after Appeal period is over. 6. Criminal Appeal stands disposed of accordingly.