The court modified the conviction from murder to culpable homicide not amounting to murder under Section 304 Part-II due to lack of intent and the nature of the altercation.

Judgment :

Per Rajani Dubey, J.

1. The present appeal is directed against the judgment of conviction and order of sentence dated 25.04.2019 passed by the learned Session Judge, Rajnandgaon (C.G.) in Session Case No.14/2018, whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo life improvement.

2. The prosecution case, in brief, is that on the date of incident ie. on 29.12.17 at about 8.00 PM the appellant attacked his brother namely Davsingh by way of Tangia, resulted into serious injuries over his neck. Thereafter ambulance was called for but Davsing didn't survive. The matter was reported by PW-11 Sarita Netam on the basis of which dehati nalisi was registered and investigation was carried by the investigating officer. After investigation police registered case against the accused, he was arrested and charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment.

3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. There are material omissions and contradictions in the statements of the prosecution witnesses. The statements of eye witness are not reliable particularly PW-11 Sarita Meshram, PW-3 Mankur Kumeti. The learned Trail Court has also not appreciated the memorandum and seizure witness namely PW-2 Doulat Ram Kotai has turned hostile and did not support the case of the prosecution therefore prima facie case against the present applicant is not made out. Therefore, the impugned judgment is liable to be set aside.

Alternatively

Learned counsel for the appellant submits that there is only one injury on the head of the deceased and it is also clear that the appellant assaulted the deceased in scuffle, as such only offence under Exception 300 of IPC may attract and the appellant can only be convicted under Section 304 Part-II of IPC.

4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed.

5. Heard learned counsel for the parties and perused the material available on record.

6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 302 of IPC against the appellant and after appreciation of oral and documentary evidence, the learned Trial Court convicted the appellant under Section 302 of IPC, as mentioned in para 1 of the judgment.

7. The first question we have to consider is whether the death of the deceased is homicidal in nature or not?

8. The inspector Sonal Gwala (PW-12) stated that he lodged dehati nalisi (Ex-P/16) and numbari merg intimation (Ex-P/16-A) and also recorded dehati nalisi (Ex-P/15) and as per merg intimation (Ex-P/15), Smt. Sarita Markam informed on 30.12.2017 that Dau Singh was murdered. He issued notice under Section 175 of CrPC for inquest and prepared inquest memo (Ex-P/12) and gave application for postmortem (Ex-P/13-A).

9. Dr. Piyusha Anchale (PW-10) conducted postmortem of the deceased and he found the injuries over the deceased as under:-

He opined that death was due to excess bleeding owing to Hypo volumic shock and death was