S.S. Dwivedi, J. -- 1. The appellant has preferred this criminal appeal under section 374 (2) of CrPC feeling aggrieved by the impugned judgment of conviction and sentence dated 3.8.2006 passed by second Additional Sessions Judge to the Court of First Additional Sessions Judge, Guna in Sessions Trial No. 369/05, whereby held the appellant/accused guilty for the offence under sections 302 and 323 of IPC and sentenced to imprisonment for life with fine of Rs. 500/- and 3 months RI, respectively. In default of payment of fine further ordered to suffer imprisonment for 6 months. Both the sentences are directed to run concurrently.

2. Briefly, stated facts of the case are that on 27.9.2005 complainant Ramsingh was in his field situated at village. Sirmoud. The cattle of one Dhansingh entered into the field of Ram singh. Complainant Ramsingh drove away the cattle from the field and also asked Dhansingh why he does not take proper care of cattle. Due to this, elder brother of Dhansingh, present appellant Jagdish carne on the spot and asked why he (complainant) is quarreling with Dhansingh. Thereafter, it is alleged that Jagdish had caused injury by means of stone to the complainant Ramsingh. When Bhavsingh, the brother of the complainant, tried to intervene, at that time, it is alleged that appellant/accused Jagdish had also caused injury to Bhavsingh by stone, due to which, Bhavsingh sustained injury and fell down on the ground. The matter had been reported to the Police Station Bamori, on which basis, police registered a case under section 307 of IPC, sent both the injured for medical examination where injured Bhavsingh died during treatment.

Information in this regard was given to the police concerned, on which basis, police registered an inquest report and prepared inquest panchnama and issued a memo for postmortem examination of the dead body of the deceased Bhavsingh. Dr. N.K. Tentwar (PW-8) performed the postmortem of the dead body of Bhavsingh and found lacerated wound on the head and opined that due to head injury resulting coma which is the ultimate cause of his death and proved the postmortem report Ex. P/11. During investigation, spot map had been prepared, accused had been arrested by the police and after due investigation, charge sheet had been filed.

3. Appellant/accused abjured the guilt and his defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence on record held the appellant/accused guilty for the offence, under section 302 and 323 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal.

4. Heard learned counsel for both the parties and perused the record and impugned judgment.

5. It is submitted on behalf of the appellant that as per the statement of injured prosecution witness it is apparent that incident took place all of a sudden because of some damage done by cattle of the accused party, the appellant/ accused came on the spot and allegation against him is for causing single injury by means of stone to the deceased Bhavsingh meaning thereby he was not having any intention to cause death of the deceased Bhavsingh and in such circumstances, if the whole prosecution story is believed then untimately the act of the appellant/accused would come within the purview of section 304 of IPC and not under section 302 of IPC as held by the trial Court. Therefore, in such circumstances, only prayer on behalf of the appellant is for alteration of conviction of the appellant from section 302 to 304 Part-II of IPC and just reduction of the jail sentence.

6. In reply, learned Public Prosecutor appearing for the State supported the impugned judgment and prayed for dismissal of the appeal.

7. To bring home the charge as levelled against the appellant, the prosecution has examined injured complainant Ramsingh who clearly stated that some quarrel took place because of the fact that some cattle of t