P. Diwaker, J.

1. This appeal has been filed against the judgment of conviction and order of sentence dated 15.12.2011 passed by the Sessions Judge, Bilaspur in S.T. No.201/10 convicting the accused/appellant under Section 302 of the Indian Penal Code (for short 'the IPC') and sentencing him to undergo R.I. for Life and fine of Rs.1,000/-, in default to undergo additional R.I. for 3 months.

2. In the present case name of deceased is Santosh Kewat.

3. The prosecution story, in brief, is that the accused/appellant along with deceased had gone to Delhi for his treatment where the deceased spent about Rs.500/- on his treatment. Though the accused had already repaid the said amount, but the deceased used to demand money from him and therefore on 10.8.2010 when the deceased was standing at the tiraha (an inter-section of three roads) of the village, the accused/appellant had caused axe injuries to him as a result of which he died on the spot. Unnumbered Merg Ex.P-10 was recorded on 10.8.2010 itself. Dehati Nalishi was recorded vide Ex.P-14. Numbered merg intimation was recorded vide Ex.P-7. FIR (Ex.P-8) was registered on 12.8.2010 under Section 302 IPC against the appellant. Inquest was prepared on the body of deceased vide Ex.P-3. Body was sent for post-mortem examination which was conducted by Dr. Nand Raj Kanwar (PW-3) vide Ex.P-9 and he noticed one incised wound over right temporal region 5cm above right ear of 8cm x 1.5cm x 6cm in size, with extensive bleeding and one incised wound over right jaw below the eye of 1x 0.5cmx1cm in size. The doctor has opined that cause of death was haemorrhagic shock due to head injury along with injury to vital organ and the death was homicidal in nature. Memorandum of accused/appellant was recorded vide Ex.P-12 and on the basis of disclosure statement made by accused/appellant, one axe was recovered at his instance vide seizure memo Ex.P-13. Statements of witnesses were recorded under Section 161 CrPC.

4. On completion of investigation, charge sheet for the offence punishable under Section 302 IPC was filed against accused/appellant and accordingly the charge was framed against him by the trial Court. The prosecution in order to bring home the charge levelled against the accused/ appellant examined 11 witnesses in all. Statement of accused/ appellant was recorded under Section 313 of Cr.P.C. in which he abjured his guilt and pleaded innocence & false implication.

5. After hearing the parties, the Court below has convicted & sentenced the accused/appellant in the manner as described above.

6. Counsel for accused/appellant submits that

the alleged eyewitness i.e. Kanti Kumari (PW-4) & Dipak (PW-5) are not only child witnesses but also relatives of the deceased and likewise PW-9 is also a related and interested witness being niece of the deceased. Therefore, in this situation, the possibility of tutoring these witnesses cannot be ruled out.

though on the memorandum of appellant an axe has been seized but in absence of any FSL or serological report confirming the presence of blood and that too, its origin and group, the same cannot be taken against the appellant.

appellant caused single injury to the deceased and thus it is apparent that he had not intention to commit murder of the deceased and therefore even if the entire prosecution case is taken as it is, at best the appellant can be convicted under Section 304 Part I or II of IPC and not under Section 302 IPC as has been done by the trial Court.

the appellant is in jail for the last more than seven years and therefore after converting his conviction under Section 304 Part I or II of IPC, he may be sentenced to the period already undergone by him.

7. On the other hand, supporting the impugned judgment learned counsel for the State submits that conviction of accused/appellant is strictly in accordance with law and there is no illegality or infirmity in the same warranting interference by this Court.

8. We have heard counsel for the parties and per