JUDGMENT

This criminal appeal is filed against the judgment dated 22.8.2017 passed by learned Addl. Sessions Judge, Mahidpur, District Ujjain in S.T. No.56/2014 whereby the appellant has been convicted u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- with default stipulation.

The facts of the case, in brief, are as under :

1. As per prosecution case, on 15.12.2013 at 13.00 hours Bherusingh Patel along with Nagusingh, Tarusingh, Narayan and Govardhansingh went to the Police Station Raghvi and lodged the report that on that day, near about at 12.30 Noon, ceremony of 'Pagdi' was going on and the deceased Devsingh was weeping in intoxication condition. His son, the present appellant, became annoyed and thrown his father on the floor and thereafter pelted stone on his chest and legs. They all asked the appellant as to why he assaulted his father, then the appellant answered that his father is in habit of weeping after consumption of liquor. Accordingly, the FIR was lodged for the offence u/s. 302 of the IPC at Crime No.323/2013. The investigation was carried out and appellant was arrested. After completion of the investigation, charge-sheet was filed in the Court of Judicial Magistrate, First Class from where it was committed to the Court of Sessions vide order dated 13.1.2014. The charge u/s. 302 of the IPC was framed against the appellant which he denied and pleaded for trial.

The prosecution examined 12 witnesses as P.W.1 to P.W.12 and got exhibited 17 documents as Exh. P/1 to P/17. In defence, appellant did not examine any witness and did not exhibited any document.The prosecution examined Narayansingh as P.W.1 who is neighbour of the appellant and except him, all other witnesses have turned hostile and have deposed that in a drunken condition the deceased fallen in 'Nala' and died. As per autopsy report, the deceased died due to rupture of spleen. After evaluating the evidence came on record, learned Addl. Sessions has convicted and sentenced the appellant, as stated first. Hence, the present appeal before this Court.

2. Learned counsel for the appellant submits that he is not assailing the findings recorded by the learned Sessions Judge on the merits of the case in respect of date of incident, cause of death, complicity of the present appellant, etc. The appellant suddenly out of an anger on the issue of weeping of his father in a drunken condition, he assaulted his father by pelting stone. There was no previous enmity between him and his father. Therefore, the offence comes under Except IV of section 300 of the IPC and the offence will not travel more than section 304 Part I of the IPC and for which the appellant has already completed the jail sentence. The appellant has no criminal past. He, therefore, prayed that this appeal be allowed and the conviction u/s. 302 of the IPC be converted into section 304 Part I of the IPC and the sentenced be reduced accordingly.

3. On the other hand, learned Govt. Advocate opposes the prayer and argued in support of the impugned judgment by submitting that the appellant with an intention to kill, pelted the stone on the chest and legs of the deceased knowing fully well its consequences. He, therefore, prays that no interference is called for and the appeal is liable to be dismissed.

After having heard the learned counsel for the parties, we have perused the record of the court below.

4. From the evidence came on record, it is evident that the appellant out of sudden anger on the issue that his father is weeping in drunken condition and which is in his habit, pelted the stone on the chest and legs of his father, due to which he died. The appellant is not a habitual offender. It was not the case of the complainant in the FIR that the appellant pelted the stone on his father with an intention to kill him. All of a sudden, the appellant out of sudden anger, pelted the stone on his father due to which deceased died. Looking to the overall facts and circums