JUDGMENT
V.G. Palshikar, J.
1. Being aggrieved by the judgment and order of conviction passed by the learned Additional Sessions Judge, Rajgarh, District Churu, convicting the accused for the offence under Section 302 of the Indian Penal Code to suffer life imprisonment and to pay a fine of Rs. 2,000/- and in default to further undergo six months’ S.I., the appellant named above-preferred this appeal on the ground mentioned in the memo of appeal as also argued at the time of final hearing of the appeal.
2. Facts giving rise to the appeal stated briefly are that a first information report was lodged in Police Station on 25-4-96 informing the Police that the accused has murdered his wife by beating her throughout the day. Cognizance was taken, investigation was completed and the accused was prosecuted for committing murder of his wife. The prosecution has examined as many as 19 witnesses in support of its case and on appreciation of the oral and documentary evidence as it existed on record, the learned Judge came to the conclusion of guilt and sentenced the accused as aforesaid, which order is impugned in this appeal.
3. The learned judge relying on the eyewitnesses account of PW 5 Bala, daughter of the accused and the deceased and PW-10 Vimla, another daughter of the accused and the deceased, convicted the accused under Section 302 of the Indian Penal Code.
4. With the assistance of the learned counsel for the accused and the learned Public Prosecutor, we have reappreciated the oral evidence and rescrutinised the documentary evidence. From ourreappreciation and scrutiny, we find it impossible to accept the contention raiser by the appellant that the accused is not guilty of any offence-There is ample evidence on record, proving that the accused was responsible for beating up the deceased. There is also enough evidence of previous beatings given by the accused to the deceased. In fact this is an admitted position that the accused was given to the viles of drinking and beating his wife. PWs-5 and 10 who are; daughters of the accused and the deceased have stated in clear terms before the Court that I hey saw their father mercilessly beating their mother. In such circumstances, no error can be found in the judgment of the learned Judge finding the accused guilty of causing death of his wife. The prosecution has proved beyond reasonable doubt that the accused is guilty of causing homicidal death of his wife by beating her up. The learned counsel appearing on behalf of the appellant thereafter in all fairness stated that even though the finding of homicidal death at the instance of the accused cannot be shaken, the impugned order is unsustainable. In so far as it convicts the accused under Section 302 of the Indian Penal Code as even according to the evidence as led by the prosecution and accepted by the learned Sessions Judge, it is not proved that any of the injury caused by the accused to the deceased was such as in all probability resulting in death. There is no evidence of any intention on the part of the accused to kill the wife. In fact the prosecution evidence according to the learned counsel is that the accused was habituated in beating his wife after he got drunk. According to the learned counsel, therefore, the conviction under Section 302 of the Indian Penal Code is not maintainable. There is no use of any lethal weapon, in fact no weapon is used at all and admittedly, the accused wis (in) a drunken state of mind. In spite of all these circumstances, the possibility of the accused knowing that his beating may cause death cannot be overruled. We are therefore, in agreement with the counsel for the defence that it is a case of culpable homicidal not amounting to murder as the accused had no intention to kill the wife and the accused fits in the part second in Section 304 of the Indian Penal Code.
5. We accept the prosecution evidence and affirm the findings of the learned Judge that the death was homicidal and on the basis of evidence, we are of the opinion that the guilt of the accused cannot be taken beyond what is provided for in Section 304. Admittedly as shown by the prosecution evidence there was no intention on the part of the accused to kill his wife, the accused was in a drunken condition, the accused did not use any weapon of lethal nature for beating the wife. In such circumstances, all that can be said about the guilt of the accused is that he was aware of the fact that his severe beating is likely to cause death of his wife and he is therefore, guilty of offence under Section 304 part second of the Indian Penal Code. We are therefore, of the opinion that the petition is liable to be allowed partly and sentence of life imprisonment for murder under Section 302 of the Indian Penal Code is liable to be set aside and instead accused is liable to be punished for a period of seven years under Section 304 part second of the Indian Penal Code.
6. In die result, therefore, the appeal partly succeeds and is allowed partly. The order of conviction and sentence under Section 302 of the Indian Penal Code is set aside instead the accused is convicted under Section 304 part second of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for a period of seven years from the date of his arrest i.e. 1-7-1996.