JUDGMENT G.S. Ahluwalia, J. - This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 2/12/2011 passed by Sessions Judge, Vidisha in ST No.102/2011, by which the appellant has been convicted under Section 302 of IPC and has been sentenced to undergo the life imprisonment and a fine of Rs.2,000/-, in default one year rigorous imprisonment. 2. The necessary facts for disposal of the present appeal in short are that an information was sent from District Hospital Vidisha that Savitribai W/o Tikaram Pal (appellant) has been brought in a dead condition and her dead body has been kept in mortuary. Accordingly, marg intimation was recorded. Lash Panchnama of the dead body was prepared. Requisition for postmortem was given and as per the postmortem report, the deceased had died due to coma, as a result of head injury as well as injuries to vital organs including brain. The spot map was prepared. The appellant was arrested. His memorandum was recorded and on his disclosure, a wooden pillar (Lakdi Ka Khambha) was seized. The statements of the witnesses were recorded. Seized articles were sent for forensic examination. The police after concluding the investigation, filed the charge-sheet for offence under Section 302 of IPC. 3. The Trial Court by order dated 16/6/2011 framed charge under Section 302 of IPC. 4. The appellant admitted the charge and made the following statement:- ejh iRuh lsejk >xMk gvk Fkk rks eSus mls [kke ls ekjdj ekj MkykA (He had a fight with his wife and he has killed her by assaulting by a wooden pillar). 5. However, the appellant denied the correctness of the prosecution documents. The Trial Court observed that although the appellant has pleaded his guilt, but it does not think it appropriate to convict him on the basis of his plea and accordingly, directed the prosecution to prove its case. 6. The prosecution examined Laxmansingh Pal (PW-1), Saraswati (PW-2), Dr. Smt. Nirmala Tiwari (PW-3), Rekha Pal (PW-4) and S.S. Solanki (PW-5). 7. The appellant did not examine any witness in his defence. 8. The Trial Court by the impugned judgment, convicted and sentenced the appellant for the above-mentioned offence. 9. Challenging the judgment passed by the Court below, it is submitted by the counsel for the appellant that Saraswati (PW-2) is a child witness aged about 11 years. 7. The appellant did not examine any witness in his defence. 8. The Trial Court by the impugned judgment, convicted and sentenced the appellant for the above-mentioned offence. 9. Challenging the judgment passed by the Court below, it is submitted by the counsel for the appellant that Saraswati (PW-2) is a child witness aged about 11 years. Laxmansingh Pal (PW-1) is the brother of the appellant and Rekha Pal (PW-4) is the niece of the appellant. They are not the reliable witnesses. Even otherwise, the incident took place all of a sudden without any premeditation and accordingly, the act of the appellant is punishable under Section 304 Part- I of IPC. 10. Per contra, the counsel for the State has supported the prosecution case as well as the findings recorded by the Trial Court. 11. Considered the submissions made by the counsel for the parties. 12. Before adverting to the facts of the case, this Court would like to find out 'as to whether the death of the deceased Savitribai was homidical in nature or not?' 13. Dr. Smt. Nirmala Tiwari (PW-3) has conducted the postmortem of the deceased and found the following injuries:- 1. Lacerated wound present over right forehead, size 1 1/2'' x 1/2''x bony deep. Brain matter visible, underlying bone fracture. 2. Lacerated wound present right pinna through & through ....(sick) exposed, size 1'' x 1/2 ''. 3. Lacerated wound present right mollar, size 1cm x 0.5cm x bony deep. 4. Blood stain present in nose and left ear. The postmortem report is Ex.P/9. 13.1 This witness was cross-examined and in cross-examination, she denied that the deceased might have suffered injuries on account of her fall on a wood. She specifically denied that the injuries could have been sustained by her on account of her fall on the ground. 14. Thus, it is clear that the death of the deceased Savitribai was homicidal in nature. 15. Saraswati (PW-2) is an eyewitness and daughter of the appellant. She has stated that her mother has expired and she was killed by her father who assaulted her by a pillar. Article 'A' is the pillar which was used by her father for killing her mother. Her father had assaulted by the pillar on the head of her mother. She had witnessed the incident, however, she was unable to disclose the talks which had taken place between her father and mother. Article 'A' is the pillar which was used by her father for killing her mother. Her father had assaulted by the pillar on the head of her mother. She had witnessed the incident, however, she was unable to disclose the talks which had taken place between her father and mother. Her sister Vaishali and brother Balram were also in the house at the time of the incident. Her father had assaulted twice or thrice on the head of her mother. Her uncle Laxmansingh came on the spot at a later stage. Thereafter, her mother was taken to Vidisha hospital on a trolley. 15.1 This witness was cross-examined and she stated that at the time when her father had assaulted her mother, she was playing in the courtyard. She specifically stated that she had seen her father assaulting her mother. She denied that her mother had fallen down in a scuffle, as a result, she sustained head injury. She again stated that her father had assaulted her mother. She further stated that her younger sister and younger brother were also playing with her. She admitted that she has come alongwith her uncle, however, denied that she has been tutored. She denied that she is making the statement as per the instructions of her uncle. 16. Laxmansingh Pal (PW-1) has stated that he was sitting in the shop of his friend. At that time, his niece Saraswati came and informed that the appellant has killed his wife. He immediately rushed to the house and found that her Bhabhi was lying dead on the ground and blood was oozing out from her head. His brother Tikamsingh was running away towards Vidisha alongwith a wooden pillar. Suresh and Moolchandra also came on the spot and accordingly, deceased Savitribai was taken to Vidisha hospital on a tractor. She was declared dead by the doctor. He had enquired from his niece about the incident, then he was told that on the issue of food, the appellant has killed his wife. Police had reached Vidisha hospital. Safina form Ex.P/1 was issued and Lash Panchnama Ex.P/2 was prepared. After the postmortem, the dead body was handed over to him vide acknowledgment receipt Ex.P/3. The blood stained floor and plain earth were seized vide seizure memo. Ex.P/4. Spot map Ex.P/5 was prepared. The appellant Tikamsingh was arrested on 10/7/2010 vide arrest memo. Ex.P/6. Police had reached Vidisha hospital. Safina form Ex.P/1 was issued and Lash Panchnama Ex.P/2 was prepared. After the postmortem, the dead body was handed over to him vide acknowledgment receipt Ex.P/3. The blood stained floor and plain earth were seized vide seizure memo. Ex.P/4. Spot map Ex.P/5 was prepared. The appellant Tikamsingh was arrested on 10/7/2010 vide arrest memo. Ex.P/6. The appellant had given a memorandum Ex.P/7 and on the disclosure made by the appellant, one wooden pillar stained with blood was seized. The wooden pillar was identified by the appellant in the Court as Article 'A'. The wooden pillar was seized vide seizure memo. Ex.P/8. 16.1 In cross-examination, he admitted that he did not lodge any FIR. He further stated that the appellant was handcuffed by the police. He further stated that initially his arrest memo was prepared. He further stated that he had signed the memorandum Ex.P/7 on the instructions given by the police. However, no question was asked with regard to seizure of wooden pillar as well as with regard to the evidence that this witness had seen the appellant running away from the spot alongwith blood stained wooden pillar. 17. Rekha Pal (PW-4) is the niece of the appellant. She has also stated that she was studying in her house. At that time, the appellant passed in front of her house and he was having a wooden pillar with him. Thereafter, her younger uncle came and informed that the appellant has killed his wife Savitribai. She went to the house of the deceased and saw that the deceased was lying in her house and blood was oozing out. 17.1 In cross-examination, she stated that she is not an eyewitness. However, she stated that her younger sister Saraswati had witnessed the incident. She further stated that the incident took place all of a sudden on the question of food. 18. S.S. Solanki (PW-5) is the Investigating Officer. He has stated that he has issued Safina form Ex.P/1. Lash Panchnama Ex.P/2 was prepared. Requisition for postmortem Ex.P/9 was sent. Marg intimation Ex.P/10 was prepared. FIR Ex.P/11 was registered. The statements of the witnesses were recorded. Spot map Ex.P/5 was prepared. Blood stained floor as well as plain earth were seized vide seizure memo Ex.P/4. On 10/7/2010 the appellant was found in Khambaba Waiting Room and accordingly, he was interrogated and he gave his memorandum Ex.P/7. Marg intimation Ex.P/10 was prepared. FIR Ex.P/11 was registered. The statements of the witnesses were recorded. Spot map Ex.P/5 was prepared. Blood stained floor as well as plain earth were seized vide seizure memo Ex.P/4. On 10/7/2010 the appellant was found in Khambaba Waiting Room and accordingly, he was interrogated and he gave his memorandum Ex.P/7. On the same day, a wooden pillar Article 'A' was seized vide Ex.P/8. Accordingly, the appellant was arrested vide arrest memo. Ex.P/6. The seized articles were sent to FSL, Bhopal alongwith draft signed by Superintendent of Police, Vidisha Ex.P/12. The FSL report is Ex.P/13. 18.1 In cross-examination, he stated that on 9/7/2010 he had received the Marg enquiry and within 15 minutes, he went to the hospital. He had recorded the statement of Saraswati and Laxmansingh during marg enquiry and only thereafter, he had issued Safina form. He denied that he had not recorded the statement of any witness. He denied that he had forcibly obtained the signatures of the witnesses on the memorandum. He denied that no wooden pillar was seized from the possession of the appellant. 19. From the evidence led by the prosecution, it is clear that the appellant had assaulted the deceased on her head repeatedly. As per the postmortem report, three lacerated wounds were found, i.e. on right forehead, right pinna and right molar. Fracture of right tempo-perietal region was also found, brain matter was also visible, sub-dural, extra- dural and intra-dural hemorrhage was found, scalp was ecchymosed, haematoma was found on right tempo-perietal region and the cause of death was coma due to head injury and injury to the vital organ, i.e. brain. 20. Saraswati (PW-2), who is the daughter of the appellant, is an eyewitness and she has supported the prosecution case. Immediately after witnessing the incident, she informed Laxmansingh (PW-1),who rushed to the spot and saw that the appellant was running away alongwith a wooden pillar and the deceased was lying in a pool of blood. 21. Rekha Pal (PW-4) is a hearsay witness. She fully corroborates the evidence of Saraswati (PW-2) and Laxmansingh Pal (PW-1). 22. Accordingly, this Court is of the considered opinion that the prosecution has succeeded in establishing that the appellant had assaulted the deceased repeatedly on her head by a wooden pillar, as a result, she died. 23. 21. Rekha Pal (PW-4) is a hearsay witness. She fully corroborates the evidence of Saraswati (PW-2) and Laxmansingh Pal (PW-1). 22. Accordingly, this Court is of the considered opinion that the prosecution has succeeded in establishing that the appellant had assaulted the deceased repeatedly on her head by a wooden pillar, as a result, she died. 23. The next question for consideration is 'as to whether the act of the appellant is punishable under Section 304 Part-I of IPC or under Section 302 of IPC?' 24. The Supreme Court in the case of Lavghanbhai Devjibhai Vasava v. State of Gujarat, reported in (2018) 4 SCC 329 has held as under : 7. This Court in Dhirendra Kumar v. State of Uttarakhand has laid down the parameters which are to be taken into consideration while deciding the question as to whether a case falls under Section 302 IPC or Section 304 IPC, which are the following: (a) The circumstances in which the incident took place; (b) The nature of weapon used; (c) Whether the weapon was carried or was taken from the spot; (d) Whether the assault was aimed on vital part of body; (e) The amount of the force used. (f) Whether the deceased participated in the sudden fight; (g) Whether there was any previous enmity; (h) Whether there was any sudden provocation. (i) Whether the attack was in the heat of passion; and (j) Whether the person inflicting the injury took any undue advantage or acted in the cruel or unusual manner. 25. Thus, it is clear that the accused is also obliged to establish and prove that he had not taken any undue advantage or he had not acted in a cruel manner, but in the present case there is another peculiar circumstance, which cannot be lost sight of. On the day when the charge was framed, the appellant had pleaded guilty, which clearly shows his innocent mind. According to the prosecution, the incident took place all of a sudden on the question of food. A wooden pillar, which is used for constructing marriage Mandap (a sacred tent constructed by using wooden pillars and green leaves), was used. Thus, it is clear that the appellant had not used any lethal weapon and a small wooden pillar, which is used for constructing marriage Mandap was lying on the spot and the same was used. A wooden pillar, which is used for constructing marriage Mandap (a sacred tent constructed by using wooden pillars and green leaves), was used. Thus, it is clear that the appellant had not used any lethal weapon and a small wooden pillar, which is used for constructing marriage Mandap was lying on the spot and the same was used. Although in the FSL report Ex.P/13, human blood has been found and the wooden pillar was seized from the possession of the appellant, but looking to the plea of guilt made by the appellant at the time of framing of charge, it is clear that the incident took place all of a sudden and without any premeditation. Furthermore, the appellant was feeling guilty of what he had done and accordingly, he had also pleaded guilty at the time of framing of charge. Under these circumstances, this Court is of the considered opinion that the conviction of the appellant can be altered from Section 302 of IPC to Section 304 Part-I of IPC. 26. As per the certificate issued under Section 428 of Cr.P.C., it is clear that the appellant was arrested on 10/7/2010 and he was never released on bail during trial. From the record of this appeal, it is also clear that he was never released on bail. Thus, it is clear that the appellant is in jail from 10/7/2010 and he has completed actual jail sentence of 11 years and 10 months. Looking to the subsequent conduct of the appellant, this Court is of the considered opinion that the period of detention already undergone by the appellant is sufficient to meet the ends of justice. Accordingly, his conviction under Section 302 of IPC is set aside and he is convicted under Section 304 Part-I of IPC. Under the facts and circumstances of the case, this Court is of the view that the justice would be done if he is sentenced to the period already undergone by him. Therefore, the appellant is sentenced to the period already undergone by him. 27. With aforesaid modifications, judgment and sentence dated 2/12/2011 passed by Sessions Judge, Vidisha in ST No.102/2011 is hereby affirmed. 28. The appellant be immediately released, if not required in any other case. 29. Let a copy of this judgment be immediately provided to the appellant free of costs. 30. 27. With aforesaid modifications, judgment and sentence dated 2/12/2011 passed by Sessions Judge, Vidisha in ST No.102/2011 is hereby affirmed. 28. The appellant be immediately released, if not required in any other case. 29. Let a copy of this judgment be immediately provided to the appellant free of costs. 30. The record of the Trial Court be sent back immediately alongwith a copy of this judgment for necessary information and compliance. 31. The appeal partially succeeds and is allowed to the extent mentioned above.