P. DIWAKER, J.

1. This appeal has been filed against the judgment of conviction and order of sentence dated 9.11.2012 passed by the 1st Additional Sessions Judge, Raigarh in S.T. No.25/12 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.2,000/-, in default to undergo additional R.I. for 03 months.

2. In the present case name of deceased is Tengani Bai, mother-in-law of accused/appellant.

3. The prosecution story, in brief, is that on 27.10.2011 the deceased and the accused/appellant, after consuming liquor, were quarrelling over construction of the house and in that process the accused/appellant assaulted on the head of deceased by wooden plank (bedpost) as a result of which she died on the spot. Unnumbered FIR (Ex.P-1) under Section 302 of IPC was lodged by Leeladhar (PW-3) against the appellant on 27.10.2011 at 10.45 p.m. Merg Intimation (Ex.P-12) was recorded on 27.10.2011 at 10.55 p.m. Numbered FIR was registered vide Ex.P-17. Inquest was made over the body of the deceased vide Ex.P-2. Body of the deceased was sent for post-mortem examination which was conducted by Dr. B.L. Bhagat (PW-5) vide Ex.P-10 and he noticed following injuries on the body of deceased:-

• lacerated wound in the left mastoid region (scalp) of 3x1.5cm in size, underlying bone fractured.

• contusion in lower part of left face of 7x4cm in size.

The doctor has opined that cause of death was asphyxia due to head injury and the death was homicidal in nature. 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 the 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 06 witnesses in all. Statement of accused/ appellant was recorded under Section 313 of Cr.P.C. in which he denied the circumstances appearing against him in the prosecution case 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 appellant had caused head injury by a wooden plank (bedpost) during quarrel, which is indicative of the fact that the appellant had no intention to kill the deceased for which she had more than sufficient opportunity. Therefore, even if the case of the prosecution is taken on its entirety, the act of appellant does not travelled beyond the scope of Exception 4 to Section 300 IPC. He further submits that the appellant is already in jail for the last about six years and therefore by altering her conviction, she may be sentenced to the period already undergone by her.

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 perused the evidence available on record.

9. Chandan Singh Rathiya (PW-1) is the witness of inquest (Ex.P-2) and seizure memo of Ex.P-3 by which bloodstained soil and plain soil was seized from the spot.

10. Chandrabhan Rathiya (PW-2) is the witness of seizure memo Ex.P-4 by which a sealed packet was seized.

11. Leeladhar Manjhwar (PW-3) is the lodger of FIR (Ex.P-5). According to this witness, as the accused did not offer any help in the construction of new house, there was a dispute on the said issue in between the deceased and his wife i.e. accused/appellant and there used to frequent quarrels between them over the said issue. He has further stated that on the date of incident he was not in the village. Since this witness did not support the prosecution in its entirety, he was declared host