JUDGMENT

Looking to the long pendency of this criminal appeal instead of hearing the application for suspension of sentence, with the consent of the parties same is heard finally.

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1. Appellant has preferred this appeal under section 374 of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”) against the judgment of conviction dated 30.12.2011, passed by Additional Sessions Judge to the Court of Second Additional Sessions Judge (Fast Track Court) Jobat in Sessions Trial No.114/2011, whereby he has been convicted 302 and 323 of I.P.C. and sentenced to undergo life imprisonment and six months R.I. with fine of Rs.500 for the offence punishable under section 302 of I.P.C. with default stipulation.

2. The case of the prosecution, in brief, is as follows: -

(a) As per the prosecution story on 24.4.2011 at about 19:30, the complainant Walsingh (PW-1) gave information to the Police Station Chandpur that he along with his wife Dhanibai (hereinafter referred to as '' Deceased'') and son Ramsingh were in the home. The deceased was grinding spices, at that time appellant came there, who is the son of his wife from her first husband and told to her that what are you doing and you cooks the food slowly. Thereafter, he gave a blow on the head of the deceased by means of Darata, she tried to save herself by raising her hand and sustained incised wound on the thumb. Thereafter, she fell to the floor and when the complainant tried to save her, the appellant caught hold of his neck and gave a blow on his shoulder from the blunt side of Darata and fled away from the spot. The complainant noticed that his wife has already died. He called neighbour Hasli and narrated the entire story to him. The incident was witnessed by Ramsingh. These information were recorded at Merg No.11/11 under section 174 of Cr.P.C by police station followed by FIR at crime No.34/2011 for the offence punishable under sections 302,323 of I.P.C. Police reached at spot, and drawn the Panchanama. The dead body was sent for autopsy. Dr. B.K. Sahu conducted a postmortem and submitted report Ex. -13(A). The Appellant was arrested, thereafter investigation was completed and a charge-sheet was filed. The Trial committed to the Sessions Court where charges under section 302 and 324 of I.P.C.were framed against the appellant, he denied all the charges and took a plea of alibi.

3. After evaluating the evidence came on record, the trial Court has convicted the appellant as stated above. Hence, this appeal before this Court.

4. At the very outset, learned senior counsel for the appellant submits that the appellant is in jail since the date of arrest i.e. more than 10-11 years. The crime was committed without premeditation as the appellant assaulted his mother out of anger. He was not intending to kill the complainant as he used the blunt side of the Darata, therefore the offence will not travel more than 304 Part -II of I.P.C. Accordingly, conviction is liable to be converted under section 302 of I.P.C. to 304 Part -II of I.P.C. and the jail sentence may kindly be reduced from life imprisonment to the period already undergone.

5. Government Advocate opposes the prayer made by the appellant and supported the finding of the trial Court.

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

Looking to the limited prayer now the only issue which requires consideration is whether it is a case of culpable homicide not murder and falls in exception IV of the 300 of I.P.C. ?

6. To prove the charges, the prosecution examined Walsingh (PW-1) and according to him, the appellant came to house from the outside and assaulted his mother by means of Darata. She sustained an injury on her thumb and he has also assaulted step father/complainant by means of Darata (from blunt side), thereafter, he fled away from the spot. His son Ramsingh (PW-2) has also witnessed the incident, has not supported the case of the prosecution and declared hostile. Dhekliya (PW-3), V