JUDGMENT : 1 In this appeal, challenge is to the judgment and order dated 12.09.2008 passed by the learned 2 nd Additional Sessions Judge, Amravati, whereby the learned Judge convicted the appellant for the offence punishable under Section 304 , part II of the Indian Penal Code (for short, ‘the I.P.C.’) and sentenced him to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.1,000/-, in default of payment of fine to suffer further rigorous imprisonment for one month. 2. Pandurang Aglave, PW-2, is the informant. The case of the prosecution, which can be unfolded from his report and other materials, is that the deceased Archana was his elder daughter. Her marriage with one Deepak was solemnized in the year 1994. From the said Deepak, Archana had a daughter by name Darshana and son Devesh. After dissolution of the marriage of Archana with Deepak, her second marriage was solemnized with the appellant/accused. Archana and her two children were residing with the appellant at Amravati. 3. The incident in question occurred on 10.11.2007. The appellant suspected the fidelity of Archana and on that count, she was ill-treated by the appellant. On 10.11.2007, the informant received a message from Daryapur Police Station that Archana was critically ill and she was admitted in General Hospital, Amravati. The informant reached the hospital at about 7.00 p.m. He came to know that Archana had died. The informant met his grand children Darshana and Devesh. The informant came to know from the children of the deceased about occurrence of the incident of merciless beating of their mother by the appellant. The informant learnt that the appellant beat the deceased by means of a rolling pin (belan) and a leather belt as he suspected her character. On account of the merciless beating by the appellant, the deceased became unconscious. The children further informed PW-2 that thereafter the appellant latched the door of the house from outside. The children raised the hue and cry as the deceased did not regain consciousness, despite their efforts to wake her up. The daughter of the landlord Ku. Amruta Pinjarkar @ Sonu (PW-3), heard the cries of the children and opened the door of the house. Thereafter, the information of the occurrence of the incident was given to the police by dialing number 100. The police arrived at the spot and carried the deceased Archana to General Hospital, Amravati. The daughter of the landlord Ku. Amruta Pinjarkar @ Sonu (PW-3), heard the cries of the children and opened the door of the house. Thereafter, the information of the occurrence of the incident was given to the police by dialing number 100. The police arrived at the spot and carried the deceased Archana to General Hospital, Amravati. However, the doctor declared her dead. The informant, on the basis of the disclosure of the incident by children, went to the police station and lodged the report against the appellant. The crime bearing No. 129/2008 was registered against the appellant. 4. On the basis of the said report Digambar Atram (PW-6) conducted the investigation. He went to the spot and drew the spot panchanama. PW-6 seized the blood stain clothes and other incriminating articles from the spot. He forwarded the dead body for postmortem examination. PW-6 recorded the statements of the witnesses. He arrested the appellant. Leather belt was seized under seizure memo. The rolling pin (belan) was recovered pursuant to the discovery statement made by the appellant. Seized articles and blood samples had been sent for chemical analysis. On completion of the investigation, a charge-sheet was filed against the appellant. 5. Learned Judge framed the charge against the appellant. The appellant pleaded not guilty. The defence of the appellant is of denial and false implication. It was his specific defence that on the date of the incident, on account of the infidelity of the deceased, he slapped her twice or thrice as he lost the power of self control. He did not assault her by means of a rolling pin and leather belt. The prosecution, in order to bring home the guilt of the appellant, examined six witnesses. Learned Judge, on consideration of the evidence, acquitted the appellant of the charge under section 302 of the I.P.C. and held him guilty of the offence punishable under Section 302 Part II of the I.P.C., and sentenced him as above. The appellant is before this Court in appeal against this judgment and order. 6. I have heard Mr. D.S. Dharaskar, learned Advocate for the appellant and Mr. A.G. Mate, learned APP for the State. Perused the record and proceedings. 7. Learned Advocate for the appellant submitted that the conviction is based on the sole testimony of the child witness Darshana (PW-1). The evidence of PW-1 is not credible and trustworthy. 6. I have heard Mr. D.S. Dharaskar, learned Advocate for the appellant and Mr. A.G. Mate, learned APP for the State. Perused the record and proceedings. 7. Learned Advocate for the appellant submitted that the conviction is based on the sole testimony of the child witness Darshana (PW-1). The evidence of PW-1 is not credible and trustworthy. There are major omissions and contradictions in her evidence. On the basis of the facts elicited in her cross-examination, the testimony of Darshana has been shaken. It is doubtful. She has suppressed the genesis of the crime. She was tutored to depose against the appellant, who resided with the deceased without performing the marriage with her. Learned Advocate submitted that the evidence of other witnesses namely PW-2, the informant and PW-3, the daughter of the landlord is also not trustworthy. Their evidence is not direct evidence to establish the complicity of the appellant in the crime. It is further submitted that the evidence of the medical officer supports the defence of the appellant that the death of the deceased could be accidental. Learned Advocate further submitted that the recovery of rolling pin at the instance of the appellant has not been proved. The evidence of Digambar Pinjarkar (PW-4), who is the landlord of the appellant, is doubtful. It is pointed out that the learned Judge has placed reliance on the evidence of police officer vis-a-vis the recovery of the rolling pin at the instance of the appellant. It was not proper. 8. Learned APP submitted that the first hand account of the incident narrated by Darshana (PW-1) has not been shaken in the cross-examination. The omissions are minor. It is submitted that even if the omissions and contradictions are considered together, would not make the evidence of Darshana (PW-1), with regard to the occurrence of the incident of the assault on the deceased by the appellant with rolling pin and leather belt, doubtful. PW-1 was an eyewitness to the incident. If she was not an eyewitness to the incident, then she would have fumbled and exposed in the cross-examination. The answers given by her in cross-examination are consistent. She has reiterated the material facts vis-a-vis the incident. Learned APP submitted that it is not possible for a child witness to place on record such a vivid account of the incident due to sheer imagination or tutoring. The answers given by her in cross-examination are consistent. She has reiterated the material facts vis-a-vis the incident. Learned APP submitted that it is not possible for a child witness to place on record such a vivid account of the incident due to sheer imagination or tutoring. Learned APP submitted that testimony of Darshana has been corroborated by other oral and documentary evidence. The evidence of the medical officer Dr. Ravi s/o Nag Bhusan (PW-5) on the material part, namely the injuries sustained by the deceased, corroborates the testimony of PW-1. Learned APP took me through the judgment and order passed by the learned Judge and submitted that the well reasoned judgment passed by the learned Judge does not warrant interference. 9. Undisputedly, Darshana and Devesh were begotten to the deceased from her first husband, Deepak. After dissolution of her marriage with Deepak, the deceased and the children started residing with the appellant. They resided together as a husband and wife. The deceased was doing work. The appellant was also doing work. It is the defence of the appellant that he had doubt about her relations with one Anil Dhande. He had warned the deceased time and again in that regard, but she did not pay any heed. He has stated in his 313 Cr.P.C. statement that on the day of the incident the deceased had concealed mobile hand set in her purse. On being questioned by the appellant, she told that she was putting some snack in her purse. At that time mobile hand set fell down. On inquiry by the appellant, the deceased told that she found a mobile phone in an abundant condition. In the meantime a call was received on the mobile phone. She did not attend the call. The appellant asked Darshana to attend the call. When Darshana spoke the caller identified himself as Anil Dhande. He has stated that thereafter he twice or thrice slapped the deceased and went out. It is to be noted that the appellant has admitted his presence in the house at the time of the occurrence of the incident. Similarly, he has admitted the presence of Darshana (PW-1) in the house. The deceased had sustained nearly 13 injuries. I may come to the evidence of medical officer a little later, after considering the evidence of other witnesses. 10. Similarly, he has admitted the presence of Darshana (PW-1) in the house. The deceased had sustained nearly 13 injuries. I may come to the evidence of medical officer a little later, after considering the evidence of other witnesses. 10. Darshana (PW-1) has narrated before the Court on oath the first hand account of the incident occurred in the house on the given date. She has stated that the incident occurred on the next day of Diwali. She has stated that at about 11.00 a.m., while she and her brother were playing on the road, she heard the alarms of her mother to the effect “MAROO NAKO MAROO NAKO”. She has stated that thereafter they entered into her house and found that the appellant was beating her mother with a leather belt and rolling pin. She has further stated that on account of the said beating, her mother had sustained injuries on her forehead and on her whole body. She has stated that the appellant told her and her brother that he would beat them like her mother and therefore, they sat on the sofa in the house. She has stated that in their presence the appellant mercilessly beat their mother. She has further stated that in order to suppress her cries, the appellant increased the volume of T.V. and Tape recorder. Therefore, her cries could not be heard outside. She has further stated that after merciless beating, the appellant went out of the house and closed the door of the house from outside. She gave water to her mother. She has stated that after drinking water, her mother asked her to look after her younger brother and thereafter, she fell unconscious. PW-1 has stated that thereafter they raised alarms. On hearing the hue and cry, Ku. Amruta daughter of the landlord Mr. Digambar Pinjarkar, came to their house and opened the door. Her parents also came to their house. She has stated that on the instructions of Sonu’s father she informed the police by dialing number 100. She has stated that thereafter the appellant also came back to the house. Police came there and apprehended the appellant and took the deceased to the hospital. 11. The prosecution has examined Pandurang Aglave - Informant (PW-2), Ku. Amruta (PW-3) and Digambar (PW-4) to seek corroboration to the evidence of Darshana. PW-2 is not eyewitness to the incident. She has stated that thereafter the appellant also came back to the house. Police came there and apprehended the appellant and took the deceased to the hospital. 11. The prosecution has examined Pandurang Aglave - Informant (PW-2), Ku. Amruta (PW-3) and Digambar (PW-4) to seek corroboration to the evidence of Darshana. PW-2 is not eyewitness to the incident. He has stated that his daughter Archana had two children by her first husband. Her second marriage was solemnized with the appellant. He has further stated that on the date of the incident, after receiving information he came to meet his grand children and on being apprised that the appellant mercilessly beat Archana by means of a leather belt and rolling pin, he lodged the report with the police. He has stated that when he visited the hospital, he found his daughter dead. 12. Ku. Amruta (PW-3) is the daughter of the landlord of the appellant. They were residing on the first floor of the house. She has deposed that the appellant was their tenant. He was residing alongwith the deceased and two children in one of the rooms in their house. She has testified that on the date of the incident, at 2.00 p.m. to 2.30 p.m she heard the noise of cries of two children of Archana and therefore, she went towards the house of the appellant. She found the door of the house closed from outside. She removed the latch of the door and opened it. The children of Archana came outside and apprised her that their mother became unconscious. She has further testified that the children were frightened. She has stated that she entered into the house and saw that Archana was lying on a cot. She noticed injuries on her head. She also noticed marks of injury on her body. She has testified that in the meanwhile her father came to the spot and directed her to accompany Darshana and inform the police by making a call on number 100. She has stated that call was made by Darshana. The police arrived at spot and shifted Archana to the hospital. 13. Digambar Pinjarkar (PW-4) is the father of PW-3. He has stated that on the date of the occurrence of the incident in the afternoon when he returned to the house, he noticed that people had gathered in front of his house. The police arrived at spot and shifted Archana to the hospital. 13. Digambar Pinjarkar (PW-4) is the father of PW-3. He has stated that on the date of the occurrence of the incident in the afternoon when he returned to the house, he noticed that people had gathered in front of his house. His daughter and children were present on the spot. He has stated that after coming to know of the incident, he directed Darshana to inform the police by dialing number 100. Thereafter, police came to the spot and carried Archana to the hospital. 14. Darshana (PW-1) was subjected to searching cross- examination. Darshana was studying in the 6 th standard. At the time of the occurrence of the incident, she was about 12 years of age. Her evidence has been assailed on two grounds. Firstly, that she was a child witness and therefore, prone to tutoring and secondly, that the account of the incident narrated by her is not at all believable inasmuch as there are material omissions and contradictions in her evidence. Learned Judge, on minute scrutiny of the evidence of Darshana, found her to be a competent witness. Learned Judge also found her evidence as to the occurrence of the incident credible and trustworthy. Learned Judge, considering the contextual nature of the omissions and contradictions and observed that the same would not dent the evidence of Darshana as to the occurrence of the incident and the involvement of the appellant in the incident. Darshana has admitted in cross-examination that the appellant used to work in the morning in Nanda Apartment and in the afternoon in the shop located at Gandhi Chowk, Amravati. She has further stated that on the day of the incident, the deceased was going to the hospital of Deshmukh. Darshana has admitted the presence of the appellant in the house at the time of the occurrence of the incident. Darshana has denied suggestions that a scuffle took place between the appellant and the deceased and that a mobile phone fell from the purse of the deceased. Though she has denied this suggestion, the defence counsel could prove the same as the contradiction in her cross- examination. It was duly proved in the evidence of investigating officer (PW-6). There are certain omissions in her evidence. Though she has denied this suggestion, the defence counsel could prove the same as the contradiction in her cross- examination. It was duly proved in the evidence of investigating officer (PW-6). There are certain omissions in her evidence. The material omissions elicited in her cross-examination were to the effect that her statement before the police does not mention that she heard the alarms raised by her mother as “MAROO NAKO MAROO NAKO” and the appellant told that he would beat them like mother and therefore, she and her brother sat on the sofa and the appellant beat her mother from 11.00 a.m. to 3.00 p.m. and blood was oozing from the injuries of the mother. Darshana has also admitted in her cross- examination that after appellant went outside of the house, the deceased went to bathroom and thereafter, she told her to give water to her and her mother drank water and told her to look after her younger brother and thereupon she fell unconscious. She was questioned about the cause of the quarrel. However, she showed the ignorance. It was suggested to her that at the time of the incident, there was a telephone call from Anil Dhande to her mother. On the basis of this cross-examination, it is submitted that Darshana has suppressed the genesis of the incident. She tried to hide the real cause of the quarrel. On minute scrutiny of her evidence, I am satisfied that despite the omissions and contradictions, her evidence cannot be discarded and disbelieved. Her presence in the house at the time of the incident has been admitted. The appellant has also admitted his presence in the house. In his defence, he has stated that the incident as narrated by Darshana did not occur. According to the appellant, when the phone call was received from Anil Dhande, he questioned the deceased. He has stated that the deceased had illicit relations with Anil Dande and therefore, he slapped her twice or thrice and then left the house. Darshana (PW-1) has presented before the Court the first hand account of the incident witnessed by her. She has deposed that her mother sustained injuries on her body as well as on her head. There was bleeding from the injuries. This part of her evidence has been corroborated by other contemporaneous evidence. The clothes of the appellant were stained with blood. She has deposed that her mother sustained injuries on her body as well as on her head. There was bleeding from the injuries. This part of her evidence has been corroborated by other contemporaneous evidence. The clothes of the appellant were stained with blood. Similarly, there was blood on the clothes of the deceased. The weapon was recovered at the instance of the appellant. PW-1 identified the rolling pin. In my view, her presence in the house is an in-built guarantee to her testimony. 15. PW-3 on material part of the incident has corroborated the evidence of Darshana. She has stated that when their mother became unconscious children made hue and cry. The door was latched from the outside by the appellant while leaving the house. PW-3 has stated that after hearing the alarms of the children, she went to their room and unlatched the door. She has stated that children came out of the house and narrated the incident to her. She has stated that thereafter she went into the house and saw that the deceased was lying on the cot in an injured condition. She has stated that after some time her father came there and on the instructions of her father, Darshana made phone call to the police on number 100. The evidence of PW-3 corroborates the version of Darshana that after the incident her mother fell unconscious. The appellant went outside of the house and latched the door from the outside. The door was opened by PW-3. Their evidence is consistent on a major part of the incident. PW-3 noticed multiple injuries on the body of the deceased. She was unconscious. 16. PW-4 is the father of PW-3. The appellant was his tenant. He has stated that when he returned back to his house in the afternoon, he saw that people had gathered in front of his house. On inquiry with PW-3 and children, he came to know about the incident. He has stated that on his suggestion, Darshana made a phone call to the police on number 100 and thereafter police came. As far as the death of Archana is concerned, the evidence of PW-1 to PW-4 is consistent. It is evident that the appellant has not challenged the death of Archana. On minute scrutiny of the evidence of Darshana, I do not see any reason to discard and disbelieve her evidence. As far as the death of Archana is concerned, the evidence of PW-1 to PW-4 is consistent. It is evident that the appellant has not challenged the death of Archana. On minute scrutiny of the evidence of Darshana, I do not see any reason to discard and disbelieve her evidence. On appreciation of her evidence in the backdrop of the other evidence, I am satisfied that her evidence is credible and trustworthy. On the basis of her evidence the prosecution has proved that the appellant was the author of the injuries sustained by deceased Archana. The defence of the appellant is that the incident occurred on receipt of a phone call from Anil Dhande. He slapped Archana twice or thrice and as a result there of she fell down. The appellant has not offered any explanation as to the multiple injuries sustained by the deceased. 17. In the backdrop of the above evidence, another corroborative piece of evidence is the evidence of medical officer. Medical Officer is an independent witness. Dr. Ravi Bhushan (PW-5) has deposed that he, accompanied by Dr. Sayema Naaz, conducted the postmortem examination of the dead body of Archana between 1.10 p.m. and 2.15 p.m. on 11.11.2007. In his evidence, he has deposed that he found the following external injuries on her body. The injuries are as follows:- “1. Contusion 4 " x 4" x ½" on right tempo parietal region. 2. Contusion with reddish blue discolouration on left upper limb arm and laterally 25 " X 5" with swelling on left hand posteriorly. 3. Contusion with reddish blue discolouration 8“ x 5" left buttock 4. Contusion 9" x 3" lateral aspect thigh and knee (reddish blue) 5. Contusion 16" x 3" Antero lateral aspect of leg and foot (reddish blue) 6. Contusion 25" x 5" Antero lateral aspect of right upper limb reddish blue. 7. Contusion 8" x 5" on right buttock 8. Contusion 4" x 3" on right thigh lateral 9. Contusion 6" x6" on right thigh to knee 10. Contusion 5" x 4" on right foot 11. Contusion 2 "x l" on left lower chest 12. Abrasion with lacerated wound ½" x ½" x 1/4" on left forehead and ½ " x ½" x ¼" one on left knee one below knee left, one on leg L / 3.” 13. Abrasion ½ cm. X ½ cm On nose left side at base. 18. Contusion 2 "x l" on left lower chest 12. Abrasion with lacerated wound ½" x ½" x 1/4" on left forehead and ½ " x ½" x ¼" one on left knee one below knee left, one on leg L / 3.” 13. Abrasion ½ cm. X ½ cm On nose left side at base. 18. As far as the internal injuries are concerned, he has deposed that he found the following internal injuries. The injuries are as follows:- ‘Right parietal temporal haemotoma of bright red to dark red clots with cerebral contusion about 4" × 4" x ½". Exh. 43 is the postmortem report. He has categorically deposed that internal injury corresponds to injury No.1 mentioned in column No.17 of the postmortem notes. He has deposed that the cause of death was coma due to injury to the vital organ i.e. brain. He has deposed that the injury No.1 corresponding to injury No.19(iii) was sufficient in the ordinary course of nature to cause death. He has further stated that injuries were antemortem and could be possible by rolling pin and belt. He has admitted that injuries No.2 to 13 mentioned in column No.17 were not on vital part of the body. He has further admitted that the injury No.13 could be possible due to fall on hard surface. He has further admitted that the injury mentioned in column No.19(iii) corresponding to injury No.17/1 could be possible by fall on a hard surface. He has further admitted that the skull of the Archana was intact and it was not fractured. 19. It is to be noted that evidence of medical officer has to be considered in juxtaposition with the evidence of Darshana (PW-1) and other witnesses. Their evidence on minute scrutiny is sufficient to come to a conclusion as to the death of Archana. It is further pertinent on perusal of the evidence of Darshana and other witnesses on one hand and the evidence of medical officer on the other hand that the deceased had sustained near about 13 injuries. They noticed the injuries on the forehead of the deceased. In the backdrop of the medical evidence, the learned Advocate submitted that the possibility of injuries in an accidental fall by the deceased could not be ruled out. In my view, this submission is not sustainable in the teeth of the available evidence on record. They noticed the injuries on the forehead of the deceased. In the backdrop of the medical evidence, the learned Advocate submitted that the possibility of injuries in an accidental fall by the deceased could not be ruled out. In my view, this submission is not sustainable in the teeth of the available evidence on record. The evidence of PW-1 is credible and trustworthy. On the basis of her evidence the occurrence of the incident and the complicity of the appellant in the incident has been proved beyond doubt. It is true that a child witness is prone to tutoring. On the date of the incident, Darshana was about 12 years old. Minute scrutiny of her evidence shows that the account of incident narrated by her before the Court could not be said to be imaginary or due to tutoring. Perusal of her cross-examination is sufficient to conclude that the core of the incident stated by her throughout has not been dented in any manner. The prosecution on the basis of this evidence has proved that the deceased died a homicidal death. The accused/appellant has been proved to be responsible for the death of the deceased Archana. The appellant has not denied his presence in the house. He has even admitted the quarrel with the deceased. He has stated the reason for the quarrel. However, the nature of the quarrel, or rather the nature of assault stated by him in his 313 statement is diametrically opposite to the account of the incident narrated by Darshana. The evidence of Darshana has been corroborated by medical evidence. The evidence of medical officer proved beyond doubt that the deceased had sustained 13 injuries. There is other corroborative evidence to establish the presence of the appellant on the spot. CA report is at Exh.52. CA report indicates that full manila and full pant Article 11 and 12 were having blood stains. PW-1 identified the clothes. The appellant wore these clothes on the date of the occurrence of the incident. The CA report shows that his clothes were stained with blood of ‘O’ group. Ex.54 the CA report of the analysis of the blood sample of the deceased would show that her blood group was ‘O’. Ex.53 is a CA report of the analysis of the blood sample of the appellant. It reveals that his blood group was ‘A’. The CA report shows that his clothes were stained with blood of ‘O’ group. Ex.54 the CA report of the analysis of the blood sample of the deceased would show that her blood group was ‘O’. Ex.53 is a CA report of the analysis of the blood sample of the appellant. It reveals that his blood group was ‘A’. The appellant has not placed on record a plausible explanation as to how the blood of the deceased was found on his clothes. 20. There is evidence of recovery of the rolling pin at the instance of the appellant. Panch witness PW-4 did not fully support the case of prosecution. However, perusal of his evidence would show that it has not been challenged by the appellant. Investigating Officer (PW-6) has deposed that pursuant to the statement of the appellant the rolling pin was recovered at his instance from the window of the house of the appellant. I do not see any reason to discard and disbelieve the evidence of investigating officer. The recovery of the weapon made pursuant to the statement by the appellant is the confirmation of his exclusive knowledge of the place where it was concealed by him. It is further seen that the evidence of PW-6 was not challenged in the cross-examination as far as the recovery of the rolling pin is concerned. The sufficient evidence has been adduced by the prosecution to fasten the recovery of rolling pin upon the accused/appellant. The prosecution, on the basis of oral and documentary evidence, has proved that Archana died a homicidal death. Learned Judge held the appellant guilty of culpable homicide not amounting to murder punishable under Section 304, Part II of the I.P.C. Learned Judge found that the evidence adduced by the prosecution is sufficient to prove that the appellant had intention to kill the deceased. Learned Judge on the basis of the evidence recorded a finding that the act of the appellant would squarely fall under clause (c) of Section 299 of the I.P.C. 21. Learned Advocate for the appellant submitted that the evidence on record is woefully fallen short to attribute the knowledge to the appellant that his act was likely to cause the death of Archana. Learned Advocate for the appellant submitted that the evidence on record is woefully fallen short to attribute the knowledge to the appellant that his act was likely to cause the death of Archana. In the submission of learned Advocate since there is no evidence to attribute such knowledge to the appellant, the offence proved against the appellant would be under Section 324 of the I.P.C. Learned Advocate for the appellant took me through the evidence to buttress this submission. Learned Advocate further submitted that the genesis of the crime has been suppressed by Darshana (PW-1) and as such, the defence of the appellant is probable and deserves acceptance. Learned Advocate submitted that therefore, learned Judge ought to have accepted the contention of the appellant that he deprived of the power of self-control due to grave and sudden provocation and as a result thereof, the incident occurred. 22. Learned APP submitted that the learned Judge has granted the benefit of doubt to the appellant and acquitted him for the charge of murder. Learned APP submitted that learned Judge found that the case of the appellant would not fall under Exception 1 to Section 300, inasmuch as there was no material on record to conclude that the appellant was deprived of the power of self-control by grave and sudden provocation at the behest of the deceased. Learned APP submitted that the evidence on record is sufficient to attribute the knowledge to the appellant that his act was likely to cause the death of the deceased. Learned APP submitted that in the teeth of the finding that the death was homicidal, the submission that the offence made out against the appellant would be under Section 324 of the I.P.C. cannot be sustained. Learned Judge has thoroughly appreciated the evidence and has recorded a finding that the act committed by the appellant would fall under clause (c) of Section 299 of the I.P.C. 23. In order to appreciate the submissions advanced by the learned Advocate for the appellant, it would be appropriate to consider the guidelines for determining the culpability of the appellant in the given case from stage to stage. In the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another reported at (1976) 4 SCC 382 . Para No.21 would be relevant. Therefore, it is extracted below. In the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another reported at (1976) 4 SCC 382 . Para No.21 would be relevant. Therefore, it is extracted below. “From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such casual connection between the act of the accused and the death, leads to the second stage for considering whether that act of he accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder,’ punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of Section 304, Penal Code.” 24. Learned Judge on appreciation of the evidence by conducting the stage-wise analysis has recorded a finding that the case would fall under clause (c) of Section 299 of the I.P.C. In this case, there is hardly any evidence to apply exception 1 to Section 300 of the I.P.C. The appellant has put forth his defence in his 313 statement. The evidence of Darshana (PW- 1) shows that she denied the suggestion put to her consistent with the defence of the appellant. Except the defence of the appellant put forth in his 313 Cr.P.C. statement, there is no iota of evidence on record to accept his contention. The evidence of Darshana (PW- 1) shows that she denied the suggestion put to her consistent with the defence of the appellant. Except the defence of the appellant put forth in his 313 Cr.P.C. statement, there is no iota of evidence on record to accept his contention. It needs to be stated that when a charge is framed for a murder and the prosecution is able to prove that the death is homicidal, the lesser offence for awarding the punishment would be under Section 304 , Part I or II of the I.P.C. In the backdrop of the finding that death is homicidal and there is a casual connection between the act of the appellant and death, the submission that the lesser offence under Section 304 of the IPC would get attracted cannot be accepted. The acceptance of such a submission would be against the provisions of law. Therefore, the submission on this count advanced by learned Advocate for the appellant cannot be accepted. 25. It is evident that out of 13 injuries, one injury was serious. The cause of death was head injury. It is apparent that injury Nos.2 to 13 were on non vital parts of the body. The appellant inflicted merciless blows with the leather belt and rolling pin. The injury inflicted on the head was serious injury. Considering the fact that one injury had resulted in death, the learned Judge held that the appellant did not intend to kill the deceased. Learned Judge, considering the nature of the injuries found on the deceased and the weapon used for inflicting the injuries, held that the case would not fall under clauses (a) and (b) of Section 299 of the I.P.C. Learned Judge has held that considering the nature of the injuries and weapon used, the offence made out against the appellant would be under Section 299, clause (c) of the I.P.C. On analyzing the evidence afresh, I am satisfied that it is sufficient to attribute a knowledge to the appellant that the injury inflicted by him on the head of the deceased was likely to cause her death. The appellant mercilessly beat the deceased continuously. The first hand account of the beating by the appellant to the deceased has been narrated by Darshana (PW-1). Learned Judge, taking into consideration the evidence on record, held the appellant guilty as above and sentenced him. The appellant mercilessly beat the deceased continuously. The first hand account of the beating by the appellant to the deceased has been narrated by Darshana (PW-1). Learned Judge, taking into consideration the evidence on record, held the appellant guilty as above and sentenced him. On re-appreciation of the evidence, I am satisfied that learned Judge has rightly held the appellant guilty of the offence punishable under Section 304, Part II of the I.P.C. 26. Learned Advocate for the appellant submitted that the maximum sentence provided under Section 304 Part II has been awarded by the learned Judge. Learned Advocate submitted that the reasons have not been recorded to award a maximum sentence of 10 years. Learned Advocate submitted that considering the fact that the appellant took care of the deceased and her two children, ought to have been taken into consideration. It is submitted that the intention of the appellant was not to cause her death but to make her mend her ways. Learned Advocate submitted that on the date of the incident, the appellant was 29 years of age. It has come on record that he was working in two shifts to maintain the family. Learned Advocate submitted that by this time the appellant might have reflected on the sin committed by him and repented. In the submission of learned Advocate the imprisonment already undergone by him would meet the ends of justice. 27. As against this, leaned APP submitted that the appellant has denied his marriage with the deceased in this proceeding. The deceased had sustained 13 injuries. Injury No.1 was on vital part of the body i.e. head and which has ultimately proved fatal. There was an internal injury as well on the head. Learned APP submitted that relentless and merciless beating at the hands of the appellant does not justify leniency. 28. I have bestowed thoughtful consideration on the submission. It is undisputed that on the date of the incident, the appellant was 29 years of age. The incident occurred on 10.11.2007. It is evident that by this time, near about 15 years have rolled by. During the pendency of the appeal, the appellant is on bail. 28. I have bestowed thoughtful consideration on the submission. It is undisputed that on the date of the incident, the appellant was 29 years of age. The incident occurred on 10.11.2007. It is evident that by this time, near about 15 years have rolled by. During the pendency of the appeal, the appellant is on bail. As per Section 304, Part II of the I.P.C. the appellant can be punished with imprisonment of either description for a term that may extend to ten years, or with fine or both, 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 such bodily injury as is likely to cause death. In any case, the imprisonment cannot exceed 10 years. Learned Judge has awarded 10 years imprisonment. 29. In my opinion, considering the above stated facts, the substantive sentence needs to be modified. Accordingly, I conclude that the sentence of six years imprisonment would meet the ends of justice. The submission by learned Advocate that he be let off with a sentence already under gone by him cannot be accepted in the teeth of above stated observations. 30. Accordingly, Criminal Appeal is dismissed. (i) The conviction of the appellant- Mahadeo Pundlikrao Khandalkar vide judgment and order dated 12.09.2008 passed by the learned 2 nd Additional Sessions Judge, Amravati in Sessions Case No.38/2008 for the offence punishable under Section 304 Part (II) of the I.P.C. is maintained. However, the order with regard to the substantive sentence is modified. It is reduced from 10 years to 6 years. (ii) The sentence of fine and default sentence is maintained. (iii) The appellant is present before this Court. He shall surrender before the Sessions Court Amravati within 15 days. 31. The Criminal Appeal stands disposed of, accordingly. Pending applications, if any, also stand disposed of.