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8. Additionally, learned counsel for the appellants submit while placing reliance on the testimony of Dr.A.K. Tyagi (PW-8), who conducted the post-mortem, that the result of death was on account of one injury which was inflicted on the head of the deceased by a blunt object which resulted in his death. Mr.Verma and Ms.Lamba, learned counsel for the appellants, submit that in case there was any intent on the part of the appellants to kill the deceased, the post-mortem report would have indicated further injuries on the body of the deceased. In the fit of rage, when the appellant Rajni felt helpless on account of the fact that the entire burden of the family, which comprised of four minor children, was on her and she was unable to cook food in the absence of the heater being functional, appellant Rajni had approached appellant Pappu for a match box to enable her to prepare the food for her children; in turn appellant Pappu had helped in restoring the electricity which had been disconnected on account of extra load which was not taken in the proper perspective by her husband. The deceased initially abused the appellant Pappu and after Pappu left, he started beating his wife and abused her. It is in this backdrop, that the incident took place and which resulted in the death of Ram Prasad/deceased. The learned counsel also contend that appellant Rajni had sought the help from the neighbours and having regard to the social status and educational background, the appellants did not call the police, but the appellants did not act in a cruel manner. Mr.Verma and Ms.Lamba have relied upon the judgments in the case of Kesar Singh v. State of Haryana, JT 2008 (5) SC 407: (2008) 15 SCC 753 (paragraphs 10, 22 and 22.1); Thangaiya v. State of T.N., (2005) 9 SCC 650 (paragraphs 15 and 22); and Thakarda Lalaji Gamaji v. The State of Gujarat, (1974) 3 SCC 639 (paragraphs 12 and 13) in support of their submission that no case under Section 302 IPC is made out as the incident took place on the spur of moment, there was no weapon of offence barring a bat which was lying in the house, the appellants did not act in an unusual manner, there was only one fatal injury, there was no pre-meditation, resultantly, the appellants plead that a case under Section 304 Part I IPC would be made out.
10. We, accordingly, alter the conviction of the accused from Section 302 IPC to Section 304 Part I IPC and sentence him to the period already undergone by him. The sentence of fine remains the same."
(Emphasis Supplied)
24. In Sandhya Jadhav v. State of Maharashtra, (2006) 4 SCC 653 a solitary knife blow was given to the deceased when he attempted to intervene and separate the convicts trying to assault his uncle. The Supreme Court converted the conviction to Section 304 Part I observing as under:
Section 304 Part I Section 304 Part II Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or or with imprisonment of either imprisonment of either description for a term which description for a term which may extend to ten years, or may extend to ten years, and with fine, or with both, shall also be liable to fine, if the act by which the death is if the act is done with the caused is done with the intention knowledge that it is likely (i) of causing death, or (i) to cause death, but without any intention to cause death, or (ii) of causing such bodily injury (ii) to cause such bodily injury as is likely to cause death as is likely to cause death
34. Accordingly, we partly allow the appeals and set aside the conviction of the appellants for murder but convict them of the offence punishable under Part I of Section 304 IPC. We are further of the view that the ends of justice would be met if the appellants are sentenced to imprisonment for seven and a half years under Section 304 Part I IPC. The order of the Trial Court with regard to fine under Section 302 shall be read as for one under Section 304 Part I and remains the same.