Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') against the judgment dated14.06.2023 passed by Sessions Judge, District Mandsaur in S.T. No.148/2021, whereby the appellant has been convicted for the offence punishable underSection 304 (2) of I.P.C. and sentenced to undergo 07 years R.I. with a fine of Rs.5000/- and in default of payment of fine, to further undergo one monthsR.I.

2. Briefly stated facts of the case are that, the deceased Bhanwarlal and his brother Ishwarlal lived in their Tapris (huts) and their field are adjacent toeach other. There was a boundary line between fields of both the parties. Ishwarlal used to tamper such boundary line and on account of that there was adispute between them. On 16.05.2021 at around 7PM, Ishwarlal and his son Ghanshyam (accused) were making some change in the boundary line by removing stone pieces put thereon. As per the further case of the prosecution, Bhanwarlal objected Ishwarlal and Ghanshyam to replace the stone pieces and due to that both brought sticks from their Tapri and assaulted Bhanwarlals with intention to kill him. Both the accused have caused injury on head to Bhanwarlal, resulted him falling on the ground. Gopal Patidar and Govind Patidar intervened them and thereafter, the appellant and co-accused ran away from the spot. The injured was hospitalized to the District hospital Mandsaur and the offence was registered against the appellant under Section 307 of IPC.

But during treatment, the injured expired, therefore, the offence under Section 302 of IPC was converted.

3..The police party, after following due procedure, arrested the accused person and registered the case against the appellant. After due investigation, charge-sheet was filed against the appellant/accused under Section 302 of IPC.

4 . In turn, the case was committed to the Court of Session and thereafter, appellant was charged for offence under Section Section 302 of IPC.

He abjured his guilt and took a plea that he had been falsely implicated in thepresent crime and prayed for trial.

5. In support of the case, the prosecution has examined as many as 08 witnesses namely Gopal Patidar (PW-1), Dr. Anil Patidar (PW-2), Rajula Patidar (PW-3), Govind Patidar (PW-4), Rahul Patidar (PW-5), Dr.

Mohammad Irfan (PW-6), B.S. Gore (PW-7) & Lal Singh Dodiya (PW-8). No witness has been adduced by the appellant in his defence.

06. Learned trial Court, on appreciation of the evidence and argumentadduced by the parties, pronounced the impugned judgment on 14.06.2023 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 304-II of IPC.

7 . Learned counsel for the appellant submits that the the appellant is innocent and the learned trial Court has convicted the appellant wrongly without considering the evidence available on record. Counsel for the appellant further submits that the appellant has not caused any fatal injury to the deceased because there is nothing on record to show that the deceased was died due to the injury caused by the appellant. It is further submitted that there are material contradictions and omissions in the statements of the prosecution witnesses but the learned trial Court has erred in ignoring the same and in convicting the appellant. The offence was committed in the heated spur of moment and the incident was ocurred without any specific intention or knowledge. It is further submitted that PW-3, Rajula Patidar son of the deceased has turned hostile and has not supported the case of the prosecution and as per the statement made by this witnesses, the injury has been received by his father by slipping over a stone. There is no independent witness in the present case and all the witnesses are almost relatives of the deceased.

8. It is also submitted that as per the MLC report, the doctor has opinion only single injury on the head whereas the allegations against