ORDER : 1.This criminal appeal is directed against the judgment dated 27.10.2017 passed by learned Additional Sessions Judge No.2, Bayana Bharatpur (for short 'learned Trial Court') in Sessions Case No.09/2017 whereby, the accused-appellant (for brevity ‘the appellant’) has been convicted and sentenced as under: 1. Under Section 302 IPC: Life imprisonment and fine of Rs.2,000/- in default whereof, three months’ simple imprisonment. 2. Under Section 201 IPC: One year’s rigorous imprisonment and fine of Rs. 1,000/- in default whereof, one month simple imprisonment. Sentences to run concurrently. 2. The relevant facts in brief are that Sh. Ajit Singh (PW-2) lodged a written report dated 11.10.2014 at about 07:50 a.m. at Police Station-Roopbas, District-Bharatpur stating therein that yesterday night at about 11:00 p.m., after study, he went to bed. It was stated that his mother-Shakuntala and his father-the appellant were sleeping in their respective rooms. It was averred that at about 12:40 a.m., he heard his room being bolted from outside and upon asking, he heard his father saying that he would not unlatch the door whereupon, he apprehended that his mother would be murdered as his father used to threaten every other day of it for they were not on good terms. It was stated that he informed his uncle Dharm Singh and also his brother Randheer Singh on mobile whereupon, after 15 minutes, his aunty Chandrawati, brother and two uncle came alongwith other villagers and found his mother dead and his father absent. It was averred that his father returned at about 06:00 a.m. and informed the villagers that he has murdered his wife. Based thereupon, the FIR No.584 dated 11.10.2014 came to be registered for the offence under Section 302/201 IPC. After investigation, the appellant was charge-sheeted. Charges were framed under Sections 302 and 201 IPC. After trial, the appellant has been convicted and sentenced as stated hereinabove. 3. Although, learned counsel for the appellant canvassed that he has wrongly been convicted under Section 302 IPC but, submitted that he would feel contented if the conviction under Section 302 IPC is converted under Section 304 Part I IPC. Elaborating his submission, learned counsel submitted that as per the postmortem report of the body of the deceased (Ex.P27), she has received only one lacerated wound on her skull which has been found to be fatal. Elaborating his submission, learned counsel submitted that as per the postmortem report of the body of the deceased (Ex.P27), she has received only one lacerated wound on her skull which has been found to be fatal. He further submits that a wooden log was recovered at his instance and in view of the prosecution evidence that the deceased was defenceless and he did not repeat the blow despite having opportunity, his conviction under Section 302 IPC deserves to be altered to the conviction under Section 304 Part I IPC. 4. Per contra, learned Public Prosecutor opposed the prayer. 5. Heard. Considered. 6. Although, the prosecution witnesses namely, S/Sh. Dharm Singh @ Bhura (PW-5) and Randheer Singh (PW-6) have deposed to have seen the appellant inflicting blow on the body of the deceased with a wooden log but, disbelieving their testimony, it was held by the learned trial Court, vide impugned judgment dated 27.10.2017, that the case is based on circumstantial evidence. The appellant has been convicted on the premise that he was last seen in the company of the deceased, only three persons were present in the house-the scene of crime, i.e., the appellant, the deceased-his wife and Ajit Singh-informant and their son, after the incident, he fled, the bloodstained weapon of offence and bloodstained loin cloth worn by him at the time of incident, were recovered at his instance. The learned trial Court has further held that from the evidence available on record, it was established that the deceased and the appellant were not on good terms and he used to harass her. Therefore, in our considered view, conviction of the appellant for her culpable homicide warrants no interference, as rightly not assailed by his learned counsel. 7. However, we find substantial force in the submission of the learned counsel for the appellant that his conviction under Section 302 IPC deserves to be converted to Section 304 Part I IPC. 8. Indisputably, the deceased has suffered only one lacerated wound on her head which has been found to be fatal by the Medical Board which has been proved by Dr. Gourav Gupta (PW- 16)-a member of the Medical Board which conducted the autopsy. A wooden log (Khunta) has been recovered at the instance of the appellant as the weapon of offence. Indisputably, the deceased has suffered only one lacerated wound on her head which has been found to be fatal by the Medical Board which has been proved by Dr. Gourav Gupta (PW- 16)-a member of the Medical Board which conducted the autopsy. A wooden log (Khunta) has been recovered at the instance of the appellant as the weapon of offence. It is a matter of common knowledge that such wooden log is commonly used by the villagers for daily use and can, by no stretch of imagination, be reckoned as the dangerous weapon. As per the prosecution case, the deceased was sleeping alone in her room and was defenceless; still, the appellant did not repeat the blow despite having opportunity to do so nor, in view of the nature of injury found in the postmortem report (Ex.P27), it was a gruesome murder. 9. The Hon'ble Supreme Court has, in the case of Gurmukh Singh Vs. State of Haryana reported in 2009 (15) SCC 635 , succinctly laid down certain factors which are required to be taken into consideration before awarding appropriate sentence with reference to Sections 302 or 304 Part II IPC, as under: "15. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana MANU/SC/1542/2009 : (2009) 15 SCC 635 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of IPC, which state as under:- "23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g)Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused." 10. In the case of Alongbar Mushahary Vs. The State of Assam and Ors. : MANU/GH/0427/2023 , a Division Bench of the Gauhati High Court proceeded to held as under: "41. In order to appreciate the argument of learned Amicus Curiae, there is a need to refer to the law on the subject. Hon'ble Supreme Court in Rampal Singh vs. State of U.P. reported in MANU/SC/0589/2012 : (2012) vol. : MANU/GH/0427/2023 , a Division Bench of the Gauhati High Court proceeded to held as under: "41. In order to appreciate the argument of learned Amicus Curiae, there is a need to refer to the law on the subject. Hon'ble Supreme Court in Rampal Singh vs. State of U.P. reported in MANU/SC/0589/2012 : (2012) vol. 8 SCC 289 in following paras discussed distinction between 302 and 304 I.P.C. as well as distinction in 304 Clause I and II as under:- "10. ..We are of the opinion that elucidative discussion on the legal principles governing the distinction between Sections 300, 302 Sections 300, 302 of the Code on the one hand and Section 304, Part I and Part II of the Code on the other, would be necessary to precisely answer the questions raised. 11. Sections 299 and 300 of the Code deal with the definition of ''culpable homicide' and ''murder', respectively. In terms of Section 299 , ''culpable homicide' is described as an act of causing death (i) with the intention of causing death or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasises on the expression ''intention' while the latter upon ''knowledge'. Both these are positive mental attitudes, however, of different degrees. The mental element in ''culpable homicide', that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted- above, it would be ''culpable homicide'. Section 300, however, deals with ''murder' although there is no clear definition of ''murder' in Section 300 of the Code. As has been repeatedly held by this Court, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'." 42. In the case of Ajit Singh v. State of Punjab reported in [MANU/SC/1086/2011 : (2011) vol. As has been repeatedly held by this Court, ''culpable homicide' is the genus and ''murder' is its species and all ''murders' are ''culpable homicides' but all ''culpable homicides' are not ''murders'." 42. In the case of Ajit Singh v. State of Punjab reported in [MANU/SC/1086/2011 : (2011) vol. 9 SCC 462], the Hon'ble Supreme Court held that in order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to murder' as well as that 'not amounting to murder' in a composite manner in Section 300 of the Code. 44. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. This would have to be decided with reference to the nature of the offence, intention of the offender, weapon used, the place and nature of the injuries, existence of pre-meditated mind, the persons participating in the commission of the crime and to some extent the motive for commission of the crime. The evidence led by the parties with reference to all these circumstances greatly helps the court in coming to a final conclusion as to under which penal provision of the Code the accused is liable to be punished 45. After analyzing the evidence on record, it is evidently clear that there was no premeditation on the part of the appellant. There is no evidence that the appellant made any special preparation for assaulting the deceased with intent to kill his brother. There is no dispute that an altercation took place between the appellant and the deceased prior to the incident and the appellant in the heat of passion under the influence of liquor, assaulted his brother with an axe causing injuries on his person. There is no dispute that an altercation took place between the appellant and the deceased prior to the incident and the appellant in the heat of passion under the influence of liquor, assaulted his brother with an axe causing injuries on his person. It also appears from the evidence on record that the deceased was not taken to the hospital immediately after the incident. The injured died when he was taken to the hospital on the following day of the incident. It has also come to the mind of this Court that if proper treatment was given to the deceased in time then there might be chance of his recovery. It also appears from the fact that the appellant did not act in a cruel or unusual manner and did not take undue advantage. As such, we are convinced that the intention of the accused/appellant was not to kill the deceased. 46. Applying the above settled principle of law which has been enumerated in the said cases, we are of the considered view that it is a fit case for modifying the sentence and the appellant ought to have been convicted under Section 304 Part II of the Indian Penal Code instead of Section 302 of the Indian Penal Code." 11. It has been held in the aforesaid precedential law that a conviction under Section 302 IPC can be converted to conviction under Section 304 IPC depending upon various factors including the nature and number of injury inflicted on the body of the deceased, nature of weapon used, whether despite opportunity the accused did not repeat blow, motive or previous enmity, whether the assault was pre-planned or not etc. As already held, in the instant case, the appellant has dealt with only one blow on the body of the deceased that too with a wooden log, not a deadly weapon and motive of the crime is not proved. The prosecution has neither established any motive behind the assault nor, that it was premeditated. Even otherwise, from the nature of weapon of offence used, i.e., a wooden log, it can safely be inferred that the attack was not pre-planned. In the aforesaid factual backdrop, we deem it just and proper to convert the conviction of the appellant from Section 302 IPC to Section 304 Part 1 IPC. Even otherwise, from the nature of weapon of offence used, i.e., a wooden log, it can safely be inferred that the attack was not pre-planned. In the aforesaid factual backdrop, we deem it just and proper to convert the conviction of the appellant from Section 302 IPC to Section 304 Part 1 IPC. Since the appellant has already served the sentence for a period more than 11 years and 3 months, we think that the ends of justice would be served if the substantive sentence is reduced to the period already undergone. 12. Accordingly, this criminal appeal is partly allowed in following terms: 1. The judgment impugned dated 27.10.2017 is modified in terms that the conviction of the appellant is altered from Section 302 IPC to Section 304 Part I IPC. The substantive sentence is reduced to the period already undergone. 2. The accused-appellant Rajpal @ Kaluddi shall be released forthwith from Jail if not warranted in any other case. 3. The appellant is given two months time to deposit the fine component failing which the learned trial Court shall ensure that he serves the default sentence. 4. In view of the provisions of Section 437-A CrPC (Section 481 Bharatiya Nagarik Suraksha Sanhita, 2023), the appellant namely Rajpal @ Kaluddi S/o Late Shri Nihal Singh is directed to furnish a personal bond in the sum of Rs.25,000/- and a surety in the like amount within four weeks before the Registrar (Judl.) of this Court which shall be effective for a period of six months with the stipulation that in that event of Special Leave Petition being filed against the judgment or on grant of leave, the appellant aforesaid, on receipt of notice thereof, shall appear before the Hon’ble Supreme Court.