JUDGMENT :

Sanjay K. Agrawal, J.

1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment of conviction recorded and sentence awarded by the learned Sessions Judge by which the appellant has been convicted for offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of Rs. 1,000/-, in default, to further undergo additional simple imprisonment for two months.

2. Case of the prosecution, in brief, is that on 1-2-2012 at 11.30 p.m. at Village Banskund, in the house of Sahdev, the appellant assaulted deceased Prem Singh by axe by which he suffered injuries and died instantaneously. Further case of the prosecution is that on the date of incident, birthday party of Kumari Kunti Teta (PW-4) was organised in which Satish Kumar Vishwakarma (PW-1), deceased Prem Singh & appellant Itwaru Ram, all participated and since appellant Itwaru Ram was under the influence of liquor, some altercation took place and Prem Singh slapped him and thereafter, in the late night at 11.30 p.m., when Prem Singh was sleeping in separate part along with Haresh (PW-2), then the appellant armed with axe came and assaulted Prem Singh on his neck and other parts of the body by which he suffered grievous injuries and died. Morgue was registered vide Ex.P-2 and FIR was registered vide Ex.P-1. Panchnama was prepared vide Ex.P-8. Dead body of the deceased was sent for postmortem which was conducted vide Ex.P-12 by Dr. S.S. Nag (PW-6) in which cause of death was stated to be cardio-pulmonary arrest and successive haemorrhage due to rupture of heart & lung and death was homicidal in nature. Axe was seized vide Ex.P-5 from Haresh (PW-2). Plain soil and bloodstained soil were seized from the spot vide Ex.P-4. Other articles were also seized from the spot. Seized articles were sent for forensic examination to the FSL, Raipur from where report Ex.P- 16 was received in which blood was found on all articles except plain soil.

3. Statements of the witnesses were recorded under Section 161 of the CrPC. After due investigation, the accused/appellant was charge-sheeted for offence under Section 302 of the IPC and charge-sheet was filed before the jurisdictional criminal court i.e. Chief Judicial Magistrate, Kanker, and the case was committed to the Court of Sessions, North Bastar Kanker, where trial was conducted.

4. The accused/appellant abjured the guilt and entered into defence. In order to bring home the offence, the prosecution examined as many as eight witnesses and exhibited 16 documents. The defence has examined none, but exhibited three documents Exs.D- 1 to D-3 i.e. the statements of Haresh Kumar, Sahdev Ram & Ku. Kunti Teta recorded under Section 161 of the CrPC.

5. The trial Court after appreciating oral and documentary evidence available on record, convicted and sentenced the appellant under Section 302 of the IPC in the manner mentioned in the opening paragraph of this judgment against which the instant appeal under Section 374(2) of the CrPC has been preferred.

6. Mr. Sudhir Kumar Sahu, Advocate, appearing on behalf of Mr. Kunal Das, learned counsel for the appellant, would submit that the evidence of sole eyewitness Haresh (PW-2) is not reliable and it is not a corroborative piece of evidence, therefore, conviction of the appellant cannot be rested on the sole testimony of the said eyewitness. In alternative, he would further submit that the case of the appellant would fall under Exception 4 to Section 300 of the IPC. Therefore, it is a fit case where conviction of the appellant can be converted/altered to an offence under Section 304 Part-II/Part-I of the IPC, as such, the appeal be allowed in part.

7. Mr. Ashish Tiwari, learned Government Advocate appearing for the State/respondent, would support the impugned judgment and oppose the appeal as also the submission made on behalf of the appellant and would submit that the evidence of eyewitness Haresh (PW-2) is reliable and the trial Court h