Judgment :-

Hidayatullah, J.

The respondent Ramprasad against whom the State of Madhya Pradesh has filed this appeal by special leave was tried in the Court of Session under s. 302 of the Indian Penal Code. He was convicted by the Sessions Judge under s. 324 of the Code and sentenced to rigorous imprisonment for six months. The State Government there filed an appeal against his acquittal under s. 302, Indian Penal Code and also 'an application for revision for the enhancement of the sentence passed on him. The High Court convicted him under s. 304 Part II and sentenced him to 4 years' rigorous imprisonment; concurrently the application for revision was dismissed as infructuous. The State Government has now filed this appeal and contends that the conviction of the respondent should have been under s. 302 of the Indian Penal Code and that there has been failure of justice in the case requiring interference from this Court.

The facts of the case are as follows: Ram Prasad was living with his mistress Mst. Rajji at Mannaur in District Panna. Evidence shows that they were having quarrels for some time previous to the incident which took place on May 24, 1963. On that date, Ram Prasad in