Pathak, J.--1. Appellant -Ramkumar has preferred the present appeal against the judgment dated 30.1.2009 passed by the Additional Sessions Judge, Mungaoli District Guna in S.T.No. 348/2007 whereby he was convicted for the offence under section 302 of IPC and sentenced to life imprisonment with fine of Rs. 2000/- and in default of payment of fine six months additional rigorous imprisonment.

2. Precisely stated facts of the case, as per the case of prosecution, for adjudication are that 5.9.2007, the complainant Jagbhan (PW9) lodged a complaint to the effect that in the morning (on 5.9.2007), his wife namely Smt. Usha Bai (since deceased) told him to sell the wheat for daily need and to settle the outstanding, hence had gone to village at Athaikheda and when he returned home, he found that his house was locked and his son Vicky (PW10) was crying and stating that Ramkumar (appellant) had killed her mother by axe. Vikcy further stated that appellant Ramkumar told his mother to move Jaipur along with him and when she refused, he killed her through axe. Statements were recorded, case was registered and spot map was prepared. The accused was arrested and axe was seized. Usha Bai died on the same day and post mortem was done, clothes of deceased were seized and Panchnama of dead body was prepared. On chemical examination, human blood was found over axe and statement of witnesses were taken and after investigation, charge-sheet was filed.

3. After filing of charge-sheet, case was committed to the Court of Session. The appellant/accused abjured his guilt. The trial was conducted. On behalf of prosecution, 13 witnesses were examined whereas on behalf of defence, none examined. Trial Court after considering the evidence convicted the appellant under section 302 of IPC for life imprisonment along with fine of Rs. 2,000/- with default stipulation, therefore, this appeal.

4. According to learned counsel for the appellant, trial Court erred in passing the impugned judgment convicting the appellant. It was the case where husband of the deceased, Jagbhan was real culprit who killed his wife because of alleged illicit relationship with the appellant and implicated the appellant so that he can get rid of his wife as well as her alleged paramour. Story of the prosecution does not evoke enough confidence. Jagannath Singh (PW9) tried to show that at the relevant point of time, he was not available in his house and he was out of village to sell wheat to the shopkeeper to settle outstanding amount incurred by him. Story of prosecution carries enough contradictions and inconsistencies to show that the appellant was not guilty of committing murder of the deceased Usha Bai. Alternatively, learned counsel for the appellant submits that the case involves alteration of charge from section 302 to section 304 Part I or II of IPC because the motive of the appellant was never to kill the deceased Usha Bai.

5. Learned counsel for the respondent/State opposed the prayer and submitted that statements as well as medical opinion establish implication of accused and further through documents exhibited, pressed for affirmation of judgment and order passed by the trial Court and prayed for dismissal of appeal.

6. We have heard the learned counsel for the parties at length and perused the record.

7. The first and foremost question for consideration of the case in hand is the nature of death of deceased- Usha Bai. Dr. Prashant Dubey (PW6), who was the medical officer and conducted autopsy over the corpse was examined. According to him, nature of injuries were as under :

“(i) one sharp cut injury of size 6cmx2cmx3cm deep scalp with bone protruding out on right parietal region of head.

(ii) one sharp cut injury of size 5cmx1cmx1cm deep scalp on left side of parietal region and head.

(iii) one sharp cut injury of size 7cmx2cmx5cm deep scalp on center of occipital region of h ead with bone protruding outside.”

His opinion was categorical that death was homicidal in natur