The main legal point established in the judgment is the application of the principles outlined in the Supreme Court judgments to evaluate the nature of the assault, the intent of the accused, and the appropriate legal provision under which the conviction and sentence should be made.

JUDGMENT :

GOUTAM BHADURI, J.

1. This criminal appeal preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure is directed against the impugned judgment dated 27/02/2021 passed by the learned 1st Additional Sessions Judge, Kanker, District North Bastar, Kanker, C.G. in Sessions Trial No. 30/2019, whereby the appellant has been convicted for commission of offence under Section 302 of the IPC and sentenced to undergo R.I. for life and to pay fine of Rs.1000/- in default of payment of fine amount to undergo additional R.I. for 3 months.

2. The prosecution case in brief, is that on 17/09/2019 an FIR was lodged by one Uttamram Yadav vide Ex. P/8 that on 17/09/2019 while he was coming after grazing the cattle at that time,the appellant/accused was hurling different abuses to his father Jeevanlal on various counts. At that juncture his mother Jainbai and his wife Panchbati went near the house of the appellant to advise him to stop abusing. On being interrupted by Jainbai, the appellant ran back to his house came back with a spade and assaulted the deceased Jainbai and gave a blow on her neck and back. Due to such blow she fell down to the ground. Subsequently, the deceased was subjected to postmortem wherein the cause of death was shown as excessive hemorrhage due to injury inflicted on the body of the deceased and excessive bleeding. The postmortem suggested that death was homicidal in nature. The police recorded the various statements and the trial Court primarily relied on the statement of eyewitness Panchbai Yadav (PW-2) and convicted the accused as aforesaid. Hence this appeal.

3. Learned counsel for the appellant would submit that the eye witness Panchbai Yadav (PW-2) is the relative of the deceased and she is an interested witness and the documents which are exhibited would show that the incident happened in a spur of moment and there was no intention to kill also it was not a premeditated. Learned counsel would place his reliance in the judgment rendered by the Supreme Court in the matter of Gurmukh Singh vs. State of Haryana, (2009) 15 SCC 635 and would submit that in the similar nature of incident the sentence was converted to under Section 304-II IPC, therefore, in the instant case, the similar treatment is required to be meted out by interfering in the impugned judgment of conviction and sentence.

4. Per contra, learned State counsel, on the other hand, opposes the arguments advanced by learned counsel for the appellant and would submit that the statement of the eye witness Panchbai Yadav (PW-2) remains un-rebutted. He would also submit that there is no explanation as to why the appellant ran back to his house and came back armed with a spade and thereafter assaulted the deceased. He would refer to the postmortem report wherein the nature of death is shown homicidal in nature due to excessive blood loss because of the injury caused, therefore, in view of the evidence having been placed by the prosecution, no interference is called for in the impugned judgment of conviction and order of sentence.

5. We have heard learned counsel for the parties and perused the record.

6. Perusal of the record would show that when the trial commenced with the denial of the charges, thereafter, the prosecution examined 15 witnesses and exhibited 32 documents. As per the prosecution, while the accused was abusing the husband of the deceased, the deceased along with her daughter-in-law went to him to advise him not to abuse and in such state, the appellant went back to his house came back with a spade and assaulted her.

7. Statement of Panchbai Yadav (PW-2), who was present along with the deceased at the time of incident, is perused. Perusal of the statement of this witness would show that at about 5.00 pm the appellant was hurling filthy abuses to her father-in-law namely Jeevanram Yadav, having heard the said abuses, they came out and tried to advise the accused. After the accused saw them he ran back to his house, came bac