ORDER

With the consent of parties, heard finally.

1. The appellant has filed the present appeal being aggrieved by the judgment of conviction dated 5.12.2016 passed by Additional Sessions Sarangpur, District Rajgarh (M.P.) in Session Trial No.206/2012 whereby the appellant has been convicted under section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs.2,000/- with default stipulation.

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

2. On 24.10.2011 at near about 10.00, Banesingh was having a hot conversation with the wife of this appellant Suganbai. All of a sudden, this appellant came and told Banesingh that how he is abusing his wife and thereafter this appellant went inside the house and came back with a Lathi in his hand, he gave one blow on the head of Banesingh and he started bleeding and appellant ran away from the spot. Banesingh became unconscious, he was taken to the hospital by Veeramsingh Sondhya. The matter was reported to the police, an FIR at crime No.201/2011 was registered under section 294, 323 & 506 of IPC against this appellant. The MLC was conducted by doctor and according to which a lacerated wound of size 6cm X 5 cm was found on the head and one abrasion thereafter, after two days Banesingh died. The postmortem was carried out by Vinay Kumar Jha (PW/10) and as per his opinion, the cause of death was injury on the vital part of the brain leading to coma and death. Hence, Section 302 of IPC was added in the FIR, this appellant was arrested, remaining investigation was carried out and after completion of investigation charge-sheet was filed and the appellant denied the charge, therefore, the prosecution was called upon to prove the charges.

3. The prosecution examined 11 witnesses and exhibited 16 documents. In defence, appellant did not examine any witness. After appreciating the evidence that came on record the appellant was convicted as stated above.

4. Learned counsel for the appellant submits that he is not assailing the findings recorded by the trial Court in respect of date on incident, time, cause of death and complicity of this appellant. However, he submits that the appellant has wrongly been convicted under section 302 of IPC as it is a case of sudden provocation and out of anger this appellant gave a blow on the head of Banesingh which is evident from the statement of Mangilal (PW/2) and Kamlabai (PW/3), therefore, at the most he is liable to be convicted under section 302 Part-II of IPC for which he has also undergone 11 years in the jail. Learned counsel further submits that this appellant is not a habitual criminal. All of a sudden, he brought the stick from his house and gave a single blow on the head of Banesingh. The FIR was initially registered under section 294, 323 & 506 of IPC and not even under section 307 of IPC. Hence, the appellant has wrongly been convicted under section 302 of IPC, therefore, the conviction may kindly be altered by acquitting him under section 302 of IPC.

5. Learned Government Advocate for the respondent / State opposes the aforesaid prayer by submitting that the appellant gave a blow with a stick on the head of deceased Banesingh intentionally which is a vital part of the body, therefore, this is a case of murder hence, the appellant has rightly been convicted under Section 302 of IPC.

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

6. It is correct that as per the statement of Mangilal (PW/2) and Kamlabai (PW/3) the deceased was having conversation with the wife of present appellant-Mangilal to which this appellant objected and out of anger he brought the stick and gave a blow on the head of Banesingh due to which he died. The FIR was lodged by Mangilal (PW/2) in which he has not stated that this appellant gave a blow by means of stick with an intention to kill. He remained under treatment for two days and thereafter, he expired. It is not a pre-planned murder but a case where in a single bl