IMPORTANT POINT
The court altered the conviction from murder under Section 302 to culpable homicide under Section 304 Part-II, emphasizing the absence of premeditation and the nature of the incident as a sudden fight.

JUDGMENT :

Per, Radhakishan Agrawal, J

1. This criminal appeal filed under Section 374(2) of the Cr.P.C. preferred by the appellant-accused herein is directed against the impugned judgment of conviction and order of sentence dated 12.02.2021 passed by the Sessions Judge, Surajpur, District – Surajpur, Chhattisgarh in Sessions Trial No.36/2019 by which appellant has been convicted for offence under Section 302 of the Indian Penal Code, 1860 and sentenced to undergo life imprisonment with fine of Rs.500/-, in default of payment of fine amount, additional rigorous imprisonment for 15 days.

2. Case of the prosecution, in nutshell, is that on 04.06.2019 at about 12:00 noon at village Mauharipara, Gauripur District Premnagar, Chhattisgarh, the appellant- Sumari Sai assaulted Samaylal (hereinafter referred to as ‘the deceased’) by iron crowbar (sabbal) by which he suffered grievous injuries and died. Further case of the prosecution is that on the date of offence, deceased- Samaylal had gone to village Gauripur to take his wife. He had also brought 3 bottles of liquor along with him and the same was consumed by him, his brother, Sumar Sai (appellant) and his sister-in-law. After consuming liquor, the deceased pulled his wife’s hand and told her to go to home situate at Maheshpur and while pulling, she fell down on the ground, due to which, her brother (appellant) got annoyed and assaulted his brother-in-law (deceased) on his head with a crowbar kept in the varandah of the house, due to which, he suffered injury and died.

3. Merg Intimation and FIR were registered vide Ex.P/10 & Ex.P/17, respectively by Surmila (PW-06), who is the wife of the deceased. Spot map was prepared vide Ex.P/16. Inquest proceedings (Ex.P/2) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/8) proved by Dr. Vivek Tiwari (PW-5), cause of death was opined to be cardio-respiratory arrest due to brain hemorrhage and nature of death was homicidal. Pursuant to memorandum statement of appellant (Ex.P/6), one iron crowbar (sabbal) has been seized from his possession vide Ex.P/7. However, there is no F.S.L report brought on record.

4. After due investigation, appellant herein was charge-sheeted for the aforesaid offence and the case was committed to the Court of Sessions for trial in accordance with law. The appellant accused abjured his guilt and entered into defence.

5. In order to bring home the offence, prosecution has examined as many as 13 witnesses and exhibited 26 documents and defence in support of its case has not examined any witness.

6. The learned trial Court, after appreciating the oral and documentary evidence available on record, convicted and sentenced the appellant / accused for the offence as mentioned in the opening paragraph of the judgment, against which this appeal has been preferred by the appellant questioning the impugned judgment of conviction and order of sentence.

7. Ms. Nirupama Bajpai, learned counsel for the appellant, would submit that the appellant has falsely been implicated in crime in question and he has been convicted by the trial Court only on the basis of evidence of PW-6 Surmila, who is eye-witness to the incident and also wife of the deceased, but her evidence does not inspire confidence and untrustworthy. She would further submit that there is no eye-witness to the incident. It would next contend that the appellant out of anger and without any premeditation caused the death of deceased by giving a single blow and if the case of the prosecution is taken as it is, then at the most, it would be a case of commission of offence under Section 304 Part-II of the IPC. It would next contend by her that appellant is in jail since 05.06.2019 i.e., more than 5 years have been completed and, as such, it is a fit case where conviction of the appellant for offence under Section 302 of the IPC can be converted/altered to an offence under Section 304 Part-II of IPC, therefore, he may be sentenced f