JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This criminal appeal under Section 374(2) of Cr.P.C. is directed against the impugned judgment dated 03/11/2014 passed in Sessions Trial No. 136/2014 whereby learned Sessions Judge, Raigarh has convicted the appellant/accused for offence punishable under Section 302 and sentenced to imprisonment for life and fine of Rs. 5,000/- in default of payment of fine additional imprisonment for two years.

2. Case of the prosecution, in brief, is that on 29/03/2014, at about 09:30 AM at Village Gahnajhariya P.S. Lailunga, the appellant herein, with the intention of causing death of his wife Leelawati, assaulted her with a wooden stick on her head on account of which she suffered grievous injury and died instantaneously and he thereby, committed the aforesaid offence.

3. Further case of the prosecution, in brief, is that appellant used to quarrel with his wife deceased Leelawati on petty matters. On 29/03/2014 at about 09:30 AM, appellant brought his wife back to their home from her parental home stating that he wanted some bank related documents and thereafter, on the pretext that she does not cook food properly, he started quarreling with her and tried to assault her but she ran towards their courtyard. The appellant chased her and thereafter, near paddy straw, he inflicted single blow with wooden stick on her head due to which she suffered grievous injury and succumbed to death. On report being lodged by Dolchand Patel (PW-2), brother of deceased, for offence punishable under Section 302 of IPC vide Ex.P/2, merg intimation was registered vide Ex.P/2 and after issuing summons to the witnesses, inquest was conducted vide Ex.P/12. Spot map was prepared vide Ex.P/4 and plain soil as well as blood stained soil was seized from the spot. The dead body of deceased Leelawati was subjected to postmortem, which was conducted by Dr. Yogeshwar Singh Sartiya (PW-5) and the postmortem report has been filed as Ex.P/9 in which cause of death is intracerebral haemorrhage and nature of death is homicidal. Pursuant to memorandum statement of the appellant vide Ex.P/6, recovery of wooden stick has been made from paddy straw in the courtyard of appellant's house vide Ex.P/7 but it was not sent for chemical examination. After recording the statements of the witnesses and after due investigation, the appellant/accused was chargesheeted for offence punishable under Section 302 of IPC which was committed to the Court of Session for hearing and disposal in accordance with law. The appellant/accused abjured his guilt and entered into defence.

4. In order to bring home the offence, prosecution examined as many as 9 witnesses and brought into record 17 documents. Statement of the appellant/accused was recorded under Section 313 of Cr.P.C. wherein he denied guilt but examined none, however, he exhibited one document in his defence.

5. Learned trial Court, after appreciating the oral and documentary evidence on record, holding the death of deceased Leelawati to be homicidal in nature and finding the appellant guilty of the offence, proceeded to convict him for offence punishable under Section 302 of IPC.

6. Mr. Bharat Rajput, learned counsel for the appellant, would submit that there is no direct evidence available on record to connect him with the offence in question as there is no eyewitness to the incident and even the recovery of wooden stick has been made from an open place and it is not admissible in evidence under Section 27 of Indian Evidence Act, 1872 and though blood stains were found in the said wooden stick but there is no FSL report to prove it, therefore, conviction of the appellant under Section 302 of IPC is liable to be set aside. In alternative, he would submit that at the most, considering that a single blow was inflicted upon the deceased, appellant's case would be covered with Exception 4 to Section 300 of IPC and he can be convicted for offence punishable under Section 304 Part-II of IPC in view of the decision rende