JUDGMENT :

SREENIVAS HARISH KUMAR, J.

1. This appeal is filed by the accused in Sessions Case No. 132/2010 on the file of Principal Sessions Judge, Bijapur. He has stood convicted for the offence punishable under Section 302 of IPC and been sentenced to undergo life imprisonment and to pay a fine of Rs. 10,000/- with a default clause of simple imprisonment for six months.

2. The prosecution case in brief is as follows:

The deceased is the wife of the accused. They lived together for a few years and as the accused entertained suspicion with regard to her fidelity, there used to be frequent quarrel between them. The accused sent the wife to her parents’ house. On 11.02.2010, the deceased, her mother, PW-6 and PW-8 and CW-9 Gopal went to the village of the accused to meet him for bringing a conciliation between the accused and the deceased. When they all reached his village, the accused was not in the house and they were informed that he had gone to the land of one Babulal Kamate for cutting the Bellary Jali trees. Therefore, the deceased, her mother and others went to that land. At that time, accused got agitated seeing them, and suddenly lobbed the axe at his wife and it fell on her left palm. As she bent forward, the accused again gave a blow on her back, which resulted in her death.

3. The police registered FIR, held investigation and chargesheeted the accused. The trial court, after appreciating the evidence of the witnesses, came to conclusion that the prosecution was able to prove the case beyond reasonable doubt and consequently held the accused guilty of the offence and sentenced him as aforesaid.

4. Assailing the findings of the trial Court, the learned counsel for the appellant-accused argues that the trial court has committed an error in holding the accused guilty of the offence punishable under Section 302 of IPC. He argued that having regard to the circumstances, the trial court at the best, could have punished the accused for an offence punishable under Section 304 Part-II of IPC. Elaborating the arguments it was submitted that, the deceased and the accused were living separately for more than a year before the incident. The deceased, her mother and some others went to the place where the accused was working as a coolie, for pacification of dispute between the husband and wife. At that time some scuffle might have taken place and provoked by the same the accused might have assaulted his wife with the axe he had for cutting the jali trees. There was no premeditation on the part of the accused to say that he did intend to cause death of the wife and therefore exception (4) to Section 300 of IPC ought to have been applied. Learned counsel for the appellant argues that when the accused gave statement under Section 313 Cr.P.C. he stated that the persons who had gone to that place along with deceased tried to assault him with jali sticks. This circumstance shows that probably he was under great threat and the said mitigating factor should have been taken into consideration while appreciating the evidence, but the trial court has ignored it. The injury on the back was not likely to cause death and there are no circumstances to hold that the accused intended to cause such type of injury and for this reason the accused should not have been convicted for the offence punishable under Section 302 of IPC. In support of the argument, he placed reliance on two judgments of the Supreme Court namely: Pularu vs. State of M.P. 1993 SCC (Cri) 1023 and Sukhdev Singh vs. Government NCT of Delhi, 2003 Cri. L.J. 4315.

5. He further argues that the accused has already spent 9 years 6 months in the jail. He has got four children and they are under his mother’s care. Therefore, by scaling down the offence from Section 302 to Section 304 Part-II IPC, the punishment of imprisonment may be reduced to the extent of period of sentence he has already served.

6. Learned High Court Government Pleader argues that the evidence of the eyewitnesses clearly esta