JUDGMENT

Per: Justice Vivek Agarwal

1. Shri Prakhar Naveriya, learned counsel for the appellant does not wish to press I.A. No.28046/2023, which is an application for suspension of sentence and grant of bail to appellant and prays for hearing the appeal finally.

2. Accordingly, I.A. No.28046/2023 is dismissed as not pressed.

3. With the consent of the learned counsel for the parties, this appeal is heard finally.

4. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by appellant being aggrieved of the judgment dated 30.1.2023 passed by the learned VIII Additional Sessions Judge, Sagar, District-Sagar (M.P.) in Sessions Trial No.180/2021, whereby the appellant has been convicted for the offences punishable under section 302 of Indian Penal Code, 1860 and sentenced to undergo for life imprisonment and fine of Rs.500/- with default stipulation of additional R.I. for 01 year and section 323 of Indian Penal Code, 1860 and sentenced to undergo R.I. for 06 months.

5. It is submitted that appellant is innocent. It is a case of single blow. According to the prosecution story, complainant Devki Saur (PW-2) had lodged a report on 13.2.2021 at Moti Nagar Police Station that she is resident of village Bhapel where she was residing with her Nanand Savitri Bai. On 8.2.2021 at about 10-11:00 pm, when she was sitting with her Nanand Savitri Bai in her house at Bhapel then her brother-in-law (Nandoi) accused Bhaiyalal Saur came under the influence of alcohol. Savitri Bai asked him to take his dinner but he did not respond when she asked the complainant (PW-2) to ask him to take dinner but on account of some altercation appellant had taken up a Lathi and had hit Savitri Bai on her head.

6. It is submitted that MLC was carried out at District Hospital Sagar, as contained in Ex.P-5, wherein Dr. Devesh Pateriya (PW-8) observed that there is a history of assault, there was superficial lacerated wound measuring 3x2 cm subcutaneous deep present over right parietal region situated just right lateral to middle. Thereafter, X-ray of skull was taken out and it was found that there was a linear fracture over left parietal and left temporal bone and no bony injury was found on the chest of the victim as is evident from an Ex.P-7.

7. As far as complainant Devki Saur (PW-2) is concerned, her preMLC is Ex.P-8 in which it is mentioned that no bony injury was found. Postmortem report is Ex.P-17 proved by Dr. Rajendra Barav (PW-13) which was carried out at Gandhi Medical College, Bhopal and in the postmortem report, cause of death is mentioned as due to intracranial hemorrhage as a result of head injury caused by hard and blunt object. It is also mentioned that evidence of surgical intervention is present and evidence of hospitalization also present. Thus, it is evident that incident took place on 8.2.2021, it is evident from postmortem report (Ex.P-17) that she died on 12.2.2021 and thereafter, FIR (Ex.P-20) was recorded.

8. Kiran Saur (PW-1), has stated in para-1, of her examination-inchief, that deceased Savitri was earlier married at village in Nirtala Police Station Khurai, thereafter, she was residing with her brother i.e. Bhaiyalal at village Bhapel. The house was given by the family. She was at her residence and she had received phone call from Manish nephew of Kalabai.

9. It is mentioned by Kiran Saur (PW-1) that Devki (PW-2) used to live separately from her husband and on some occasion, she used to come to house of Bhaiyalal who happens to be her brother-in-law (Nandoi). It is also mentioned that antecedents of Devki were not proper and she had relations with several other persons. Thus, it is imputed that there was a dispute between deceased Savitri and her husband on account of frequent visits of Devki Saur (PW-2).

10. Devki Saur (PW-2) who happens to be an eye-witness has stated that the appellant had given a single blow on head with a Lathi to Savitri Bai. She has though denied this fact that Savitri Bai was telling her