The court ruled that a sudden fight resulting in death, without premeditation or undue advantage, constitutes a conviction under Section 304 Part-II IPC instead of Section 302 IPC.

JUDGMENT :

Sanjay K. Agrawal, J.

1. Invoking criminal appellate jurisdiction of this Court, the present criminal appeal under Section 374(2) of CrPC has been filed by the appellant herein calling in question the legality, validity and correctness of the judgment of conviction and order of sentence dated 05.07.2019 passed by the Sessions Judge, Korba, District Korba, Chhattisgarh in Sessions Trial No.13/2019 whereby the appellant has been convicted for offence punishable under Section 302 of the IPC and sentenced to undergo imprisonment for life and pay fine of ₹2,000/-; in default of payment of fine to undergo additional rigorous imprisonment 3 months.

2. Case of the prosecution, in nutshell, is that on 18.10.2018 at about 9:30 pm at S.B.S. Colony Gayatri Nagar Korba Chowki Manikpur Thana Kotwali Korba, District Korba Chhattisgarh, appellant assaulted his father Premlal Patel (now deceased) by wooden planks and also strangulated him to death. Thereafter, appellant himself registered the Roznamchasanha. Ganeshi Patel (PW-2), mother of the appellant and wife of the deceased, registered zero merg (Ex.P/9) and Dehati nalsi (Ex.P/10), thereafter, numbered merg and FIR were registered vide Exs. P/24 & P/25, respectively. Inquest proceedings (Ex.P/8) were conducted and the dead body of the deceased was sent for postmortem. As per postmortem report (Ex.P/14) proved by Dr. O.S. Kanwar (PW-4) cause of death was shock due to spleen rupture and homicidal in nature. Pursuant to memorandum statement of the appellant (Ex.P/1) wooden plank and wire have been seized vide Ex.P/2. Seized articles were sent for chemical analysis to FSL and as per FSL report (Ex.P/23) on the weapons of offence i.e. wooden planks (Articles A1 & A2 ) and wire (Article B), clothes of the appellant (Articles C & D) and clothes of the deceased (Articles G1 & G2 ) human blood was found.

3. After due investigation, appellant 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.

4. During the course of trial, in order to bring home the offence, the prosecution has examined as many as 9 witnesses and exhibited 29 documents whereas, the appellant in defence has neither examined any witness nor exhibited any document. Statement of the appellant was recorded under Section 313 of CrPC in which he denied the circumstances appearing against him in the evidence brought on record, pleaded innocence and false implication.

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

6. Ms. Madhunisha Singh, learned counsel for the appellant, submits that appellant has falsely been implicated in crime in question and he has been convicted by recording a finding which is perverse to the record. She also submits the eye witnesses Ganeshi Patel (PW-2) and Seeta Patel (PW-3) have not supported the case of the prosecution and turned hostile and even if, the case of the prosecution is taken as it is, it would be a case, at the most, of commission of offence under Section 304 Part-II of the IPC and the appellant is in jail since 19.10.2018, 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. Thus, the present appeal deserves to be al