1. This appeal is against the judgment dated 30.10.2015 passed by the learned Sessions Judge, Bemetara, District Bemetara (C.G.) in Sessions Trial No.57/2014 whereby the appellant has been convicted under Section 304 Part-II of Indian Penal Code and sentenced to undergo R.I. for 7 years and fine of Rs.2000/-, in default of payment of fine, further R.I. for 1 month was ordered for.

2. As per the prosecution case, the incident was of 2014, the deceased Santram Verma had raised some superstructure (Kothar) and house for which different labourers were employed. On 22.05.2014 at about 7 p.m. the deceased while was sitting in front of his house, the appellant Balram Sahu came to him and asked for money for liquor for the reasons that complainant had constructed a new house. The said demand was objected by the deceased Santram Verma on the ground that he do not drink. Having said so, the accused abused the deceased and they landed into scuffle with each other. During such quarrel, the accused has kicked in the scrotum and abdomen of the deceased. The wife of the deceased Santram namely Satwantin Bai intervened in such scuffle by the time the deceased Santram Verma because of the injury fell down to the ground. Thereafter, the family members of Santram took him to a private Hospital at Bemetara. The complainant Satwantin Bai had made a report on 24.05.2014 at City Kotwali Bemetara for which an offence was registered under Section 294, 506 & 323 of I.P.C. During the treatment in the private nursing home Maa Karma Hospital Bemetara, the condition of Santram Verma deteriorated, as such, he was shifted to another hospital at Raipur for better treatment on 24.05.2014. During such treatment on 24.05.2014 Santram died. The dead body thereafter was subjected to post-mortem and after post-mortem and further investigation, the charge sheet was filed under Section 294, 506, 323 & 302 of I.P.C.

3. During the course of trial, the appellant/accused abjured the guilt and claimed to be tried. The prosecution on their behalf had examined as many as 23 witnesses and the trial Court after evaluating the evidence on record convicted the accused/appellant as aforesaid. Hence this appeal.

4. Learned counsel for the appellant would submit that the trial Court failed to appreciate the fact that the incident happened on spur of moment and there was no intention to kill so as to take the case within the ambit of Section 304 Part-II of I.P.C. He would further submit the way the incident happened, it has been supported by the eye-witness PW-3, it would reveal that both the appellant and deceased landed into scuffle, thereafter, the deceased fell down which may have caused the injury. He referred to the post-mortem report Ex.P-18 and submits that the cause of death was due to perforation in intestine and septicemia, therefore, it would not a cause of any hitting in the scrotum for which the cause can be attributed to the appellant. He further submits in order to convict the accused under Section 304 Part-II, the intention of causing death is the necessary ingredients, which was absent in this case along-with the knowledge. Consequently, the case would fall not beyond the scope of Section 325 of I.P.C. He further submits that during the scuffle, no weapon was used which would show that the knowledge and intention were absent.

5. Per contra, learned State counsel opposes the argument advanced by the learned counsel for the appellant. He referred to eighth clause of Section 320 of I.P.C. and further went through Section 39 of I.P.C. He would submit that the statement of the eye-witness would clearly demonstrate the fact that because of the injury caused by the appellant the death was resulted. Consequently, the order passed by the Court below is well merited, which do not call for any interference.

6. I have heard learned counsel appearing for the parties and perused the records.

7. The date of incident in this case was of 22.05.2014 at about 7 p.m. The FIR Ex.P-1