JUDGMENT

1. This Criminal Appeal under section 374 of Cr.P.C. has been filed against the judgment and sentence dated 20.1.2001 passed by A.S.J. Kukshi, District Dhar in S.T. No.89/2000, by which, the appellant has been convicted under section 304 part II of I.P.C and has been sentenced to undergo 5 years R.I. and fine of Rs. 1000/- with default imprisonment of 4 months R.I.

2. The prosecution story, in short, is that on 23.12.1999 the complainant Idlibai lodged a report that on 22.12.1999 she, her husband Bhuchariya were in their house. The appellant came there and insisted that her husband should settle his account. At that time she was preparing Chapatis. On the question of money, the appellant started abusing deceased in the name of mother and sister and started pelting stone on her husband Bhuchariya. One stone landed on the upper side of left parietal region of Bhuchariya and another stone landed on the left ear. Bhuchariya raised an alarm, therefore, Tersingh, Phula and Balu came rushing and saw that the appellant was scuffling with deceased Bhuchariya. The appellant thereafter scolded her husband that he should settle down the money dispute, otherwise he would kill her husband and left the place. Since it was already night and they did not have any means of conveyance, therefore, the F.I.R was lodged on the next day. Accordingly, the police registered Crime No.126/99 and the injured Bhuchariya was sent for medical examination. Dr. J.S. Pawar found that Bhuchariya was in unconscious condition and suspecting the fracture of left parietal bone, he referred the injured to the District Hospital Barwani. Ultimately Bhuchariya died in the District Hospital Barwani. Accordingly the requisition for conducting the postmortem report was given. The postmortem of the deceased Bhuchariya was done. The Lash Panchayatnama was prepared, Naksha Panchayatnama was prepared. The Investigating Officer added the offence under section 302 of IPC. Spot map was prepared. The blood stained and plain earth, blood stained Baniyan of deceased were seized. Two stones were also seized from the spot. The appellant was arrested. In a query, it was opined by Dr. Pawar that the injuries could have been caused by the stones, which were seized from the spot. The statement of the witnesses were recorded. The FSL report of the seized articles was obtained and after completing the investigation, the police filed charge sheet for offence under section 294, 336, 323, 506, 302 of IPC.

3. The trial Court by order dated 1.7.2000 framed charges under section 294, 336, 506-B, 302 of IPC.

4. The appellant abjured his guilt and pleaded not guilty.

5. The prosecution in order to prove its case examined Dr. R.C. Goyal (PW-1), Dr. J.S. Pawar (PW-2), Shivnarayan Bhargava (PW3), Nanla (PW-4), Juwan Singh (PW-5), Phula (PW-6), Remsingh (PW-7), Idli Bai (PW-8), Kasam (PW-9), Tersingh (PW-10), Roopsingh (PW-11), Lalbahadur (PW-12), F.S. Chouhan (PW-13) and Mansukhlal (PW-14). The appellant did not examine any witness in his defence.

6. The trial Court by the impugned judgment and sentence, convicted the appellant for offence under section 304 part II of I.P.C and sentenced him to undergo rigorous imprisonment of 5 years and fine of Rs. 1000/-, with default imprisonment of 4 months R.I. The appellant was acquitted for offence under section 294, 336, 506-B of IPC.

7. Challenging the judgment and sentence passed by the Court below, a solitary ground was raised by counsel for the appellant that since the deceased was under the influence of alcohol and he was trying to snatch the money from the appellant and, therefore, even if the entire allegations are accepted, then it is clear that it would be an offence under section 325 of IPC because there was no intention or knowledge on the part of the appellant to kill the deceased Bhuchariya.

8. Per contra, the appeal is vehemently opposed by counsel for the State. It is submitted that since the appellant had thrown stones on the head o