J U D G M E N T

This criminal appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 challenging the judgment of 2 conviction and sentence dated 28.08.2015 passed by First Additional Sessions Judge, Balaghat, in Sessions Trial No. 230/2014 whereby the appellant has been found guilty for committing offence punishable under Section 302 of IPC and directed him to undergo Life imprisonment withfine of Rs.5,000/-, with default stipulation. 2. In short, the case of the prosecution is that the incident occurred on19.04.2014. On that date the complainant Prakash Tembhare (PW/1) who runs a provision store was sitting in shop of Jai Chand Patle (PW/2) and at about 1:00 PM in the afternoon, he heard loud voices of commotion.

Then he and Jai Chand (PW/2) came out on the road then they found that the present appellant was hitting the deceased Suresh with a piece ofwood. The deceased fell down on the road and was bleeding profusely. An Ambulance was called on the spot and the deceased was taken tohospital where doctors declared him dead. The FIR (Ex. P/2) was registered promptly at 2:35 PM on the same date wherein present appellant was named as accused.

3. Postmortem of body of the deceased was conducted and in the postmortem examination it was found that there were 6 injuries on the deceased out of which 4 were lacerated wounds. There were fractures in the face and head. The cause of death was shown to be hemorrhagic shock (loss of blood). After investigation, challan was filed against the present appellant. The matter was committed by the Magistrate to theSessions Court. The appellant pleaded innocence and claimed to be tried. 4. The trial Court recorded evidence of as many as 17 prosecution witnesses and 4 defence witnesses. After recording the evidence and hearing the parties, the Court below passed the impugned judgment dated 3 28.08.2015 and held the appellant guilty for offence under Section 302 of IPC and sentenced to life imprisonment.

5. Ms. Renu Gupta, learned counsel for appellant while pressing the case of the appellant submitted that there is no direct evidence in the case and none of the witnesses have actually seen the present appellant hitting the deceased by means of piece of wood. It is also submitted that various witnesses have turned hostile. It is stated that Damesh Patle (PW/3), Sharda Bai (PW/7), Babulal (PW/9) and Bhanu Kol (PW/15) have turned hostile. It is argued that the complainant in the case is Prakash Tembhare (PW/1). As per the deposition of complainant Prakash Tembhare it can be concluded that on one hand this witness stated that the appellant was hitting the deceased by a piece of wood and on the other hand he has stated that the deceased was lying on the road and was bleeding. By referring to deposition of Jai Chand (PW/2), it is argued that he has also not seen the appellant hitting the deceased. By referring to deposition of Dalpat Singh (PW/4), it is stated that he saw the appellant standing near the badly injured deceased and the same is stated by Mamta (PW/5) so also Anand (PW/8). Thus, it is argued that the case of the prosecution stands on weak footings.

6. Alternatively, it is argued on behalf of the appellant that even if prosecution story is accepted in its entirety even then it has clearly come on record that there was no animosity between the appellant anddeceased. Both of them were habitual of consuming alcohol. They both have been found proved to be under the influence of alcohol at the time of incident also. It was a sudden fight under the influence of alcohol wherein the appellant is stated to have hit the deceased by means of a piece of 4 wood which is otherwise not a weapon, hence, there is no intention of the appellant to cause death of the deceased.

7. It is further submitted that it is duly established from the materialevidence that both i.e. appellant as well as deceased were consuming alcohol together an