Mohan M. Shantanagoudar, J.

1. The judgment and order dated 18-11-2011 passed by the Sessions Court, Kodagu at Madikeri in S.C. No. 57 of 2008 is the subject-matter of this appeal.

By the impugned judgment, the Trial Court has convicted the accused for : the offence under Section 304(I) of Indian Penal Code and sentenced him to undergo imprisonment for 7 years and to pay fine of Rs. 1,000/- with a default clause.

2. Cri. A. No. 292 of 2012 is filed by the State seeking enhancement of sentence for the offence under Section 304(I) of IPC.

Cri. A. No. 292 of 2012 is filed by the State praying for an order of conviction against the accused for the offence under Section 302 of IPC instead of Section 304(I) of IPC.

3. Case of the prosecution in brief is that the deceased was working in the Farm of P.W. 5 as a manual labour; she is the wife of accused; she was working as a maid in the house of P.W. 5 whenever called for; the accused used to suspect the fidelity of the deceased inasmuch as, he was of the opinion that the deceased had illicit relationship with one Muthumani (not examined); in that regard, accused used to come to the house everyday after consuming alcohol and used to quarrel with his wife/deceased; on the night of the incident also i.e., on 8-6-2008, the accused came to the house as usual and started quarreling with his wife/deceased; two minor children of the deceased were also living with the deceased and the accused under the same roof and they were also present at that point of time; since there was loud cries by the deceased; the neighbours including P.W. 1 whose houses are situated near to the house of the deceased saw the accused assaulting the deceased; in particular, P.W. 1 used his torch to witness the incident; in the light emanated from the torch he saw the accused assaulting the deceased; on the next day morning i.e., on 9-6-2008, the dead body of the deceased was found with the bleeding injuries in her matrimonial house; at the early hours of the next day i.e., on 9-6-2008 the accused himself went to the house of P.W. 5 (his employer) and informed him that somebody has assaulted the deceased and she is lying in the house; immediately thereafter, P.W. 5 went to the house of the deceased and saw the dead body of the deceased with bleeding injuries.

Complaint came to the lodged as per Ex. P. 4 by P.W. 5, which came to be registered at 10.00 a.m. on 9-6-2008 in Crime No. 116 of 2008 by C.W. 12, Malinge Gowda, HC of Madikeri Rural Police Station; P.W. 10, the Inspector of Police has conducted the investigation and laid the charge-sheet.

4. In order to prove its case, the prosecution in; all examined 11 witnesses and got marked 7 exhibits and 10 material objects. On behalf of the defence one exhibit is got marked from the statement of P.W. 1. As mentioned supra, the Trial Court, on evaluation of the material on record, convicted the accused for the offence under Section 304(1) of IPC, though the accused was charged for the offence under Section 302 of IPC.

5. Sri Vijayakumar Majage, learned Additional State Public Prosecutor and Sri B.S. Prasad, learned Amicus Curiae having taken us through the entire material on record argued in support of their cases. Learned Amicus Curiae assisted the Court by special reference to the defence case.

6. P.W. 1 is the eye-witness to the incident. He is a neighbour. He saw the incident of assault in the torch light. He saw the dead body of the deceased in her house on the next day morning; P.W. 2 is the Doctor. He conducted autopsy over the dead body. The autopsy report is at Ex. P. 1; P.W. 3 is the P.W.D. Engineer who prepared the spot sketch. Ex. P. 2 is the sketch of scene of offence; P.W. 4 is the Police Constable who carried the First Information Report (Ex. P. 3) to the jurisdictional Magistrate; P.W. 5 is the Estate Owner/employer of the accused. He has deposed that the accused was working as loader and was staying in the house provided to him and his family members; that