JUDGMENT

Abhay Gohil, J.—In this appeal filed under Section 374 Cr.P.C. the appellant has challenged the judgment of conviction under Section 302 IPC, and sentence for life imprisonment with fine of Rs.1,000 passed on 6.1.97 in Sessions Trial.No.108/96, by Third Additional Sessions Judge, Bhind.

2. The prosecution story in short is as under:

On 16.12.95 at about 1.30 p.m. at village Akoda deceased Gambhir Singh was giving water in the field of Bachude Khan. Shivpratap Singh and Tilak Singh, two sons of Gambhir Singh were also sitting near the field. Appellant Mithilesh, who is also nephew of the deceased, came from village side carrying spade in his hand, hurled abuses at Gambhir Singh and asked him to stop operating pump and at the same time gave two spade blows on his head. Deceased sustained injuries and died on spot. Sons of the deceased also came to save their father and thereafter accused went away from the spot with the spade. Shivpratap Singh lodged FIR, Ex.Pl, at P. S. Umari, where crime was registered, matter was investigated and charge sheet was tiled. During tria1, as many as 10 witnesses were examined. Dr. A. K. Saxena (PW7) conducted autopsy of the dead body and according to him, the deceased received two lacerated wounds in the head and the deceased died because of excessive bleeding and shock. Trial Court after considering the evidence of the witnesses found the appellant guilty under Section 302 IPC, convicted and sentenced him as aforesaid. Against which the appellant has preferred this appeal.

3. We have heard the learned counsel for the parties and perused the evidence on record.

4. At the outset, learned counsel for the appellant submitted that the incident took place all of sudden. The appellant, who is the nephew of the deceased, became furious seeing that the deceased was providing water to the field of Bachude Khan from his own water pump, lost his balance and gave two spade blows to the deceased. The deceased was his uncle. It is further submitted that Shivpratap Singh (PW1), who is the son of the deceased, has also admitted in his evidence that the incident took place under heat of sudden provocation, their relations were very cordial and they belong to the same family. Same is the statement of Tilak Singh (PW2), who is the another son of the deceased. Ram Mohan Singh (PW9), who is also the eyewitness, has not supported the prosecution and he was declared hostile. Therefore, it is submitted that the appellant has already suffered jail sentence of more than eight years and looking to the nature of incident and the weapon used in the commission of crime, it cannot be held that there was any premeditation or intention to cause death of the deceased or the blows were also given with intention to cause death of the deceased. Therefore, it was argued that the case will not fall under Section 302 and at the most, it may be a case under Section 304 Part-II, IPC and submitted that the conviction be altered from Section 302 to Section 304 Part-II, IPC and the appellant be released on undergone jail sentence. In reply, Shri Vivek Khedkar, learned Public Prosecutor, supported the judgment.

5. After hearing the parties we have also perused the evidence on record. It is true that Shivpratap Singh (PW1) and Tilak Singh (PW2), who are the sons of the deceased, have admitted that there was no enmity between the deceased and accused persons. The deceased was uncle of the appellant accused, they belong to the same family and same village and their relations were also cordial. Though there was no partition of land, but there was no enmity between them. The weapon used in the crime was the spade, which is generally being used in the agricultural operations by the agriculturists and is a common agricultural implement, therefore, it was submitted that the presence of spade is also not uncommon in the case and it was not brought on spot with a view to commit such offence. Thus, it cannot be held that the spade is a dangerou