JUDGMENT

Instead of hearing I.A.No.13355/2022 which is the first application seeking suspension of sentence filed on behalf of sole appellant Shankar filed after ten years of the pronouncement of the judgment dated 23/02/2012 by the Sessions Court, Alirajpur, parties are willing to argue the criminal appeal finally , hence we have heard the appeal finally.

The appellant/accused has preferred this appeal under Section 374

of the Code of Criminal Procedure, 1973 (in short “Cr.P.C.”) against the judgment of conviction and sentence dated 23/02/2012 passed by Sessions Judge, Alirajpur in S.T Case No.81/2011; whereby, he has been convicted under Section 302 of IPC and sentenced to undergo Life imprisonment with a fine of Rs.1,500/- in default of fine 8 months R.I.

The prosecution story

1. That on 22.04.2011 near about 11.00 PM, complainant Dilip (PW- 2) lodged a Dehati Nalshi Report (Ex-P-4) by disclosing that his father Padam Singh (deceased) and his uncles Shankar (appellant) and Raichand (PW-8) were living separately in Gram Pastar and his grandmother Ralu Bai (DW-1) resides with appellant. The appellant started construction of his house near the house of the complainant Dilip (PW-2). On the date of the incident at about 7.00 in the evening the appellant climbed on a tree and abusing his mother Ralubai (DW-1) by filthy language to which complainant Dilip (PW/2) strongly objected to it . The appellant became annoyed and got down from the tree and took out his bow and arrow and chased the complainant to kill him. The complainant ran towards the agricultural field and at the same time complainant's father Padam Singh (deceased) and mother Gadribai (PW/3) reached the place of the incident and requested the appellant not to kill complainant Dilip (PW/2). The accused shot an arrow which hit on the left side of the chest of Padam Singh (deceased) due to which he fell down and died on the spot. Based on the Dehati Nalshi (PW-4) an FIR was registered at police station

Ambuja (Ex-P-8) under Section 302 of IPC against the appellant. The dead body was sent for postmortem and Dr Santosh Kumar Solanki (PW- 1) who conducted the postmortem and gave the report (Ex-P-3) and found that cause of death is homicidal and there were two penetrated wounds on the chest apart from certain abrasion.

2. After arrest, the appellant was sent to Jail and upon completing the investigation charge sheet was filed. The trial was committed to the session court where the charge under section 302 I.P.C. was framed which the appellant denied and pleaded for the trial.

3. The prosecution examined as many as 12 witnesses and exhibited 20 documents. After evaluating the evidence that came on record, the Sessions Judge, Alirajpur vide order dated 23/02/2012 in S.T Case No.81/2011; has convicted the appellant under Section 302 of IPC and sentenced him to undergo Life imprisonment with a fine of Rs.1500/- in default of fine eight months R.I. Grounds in the criminal appeal

4. At the very outset, learned counsel for the appellant submits that he is not assailing the findings recorded by the trial Court in respect of the date of the incident, place of incident, cause of death, relationship and over tact of the present appellant. It is also further submitted that there was no previous enmity between the appellant and the deceased and the offence was committed out of anger in a heat of passion. The appellant and the deceased belong to the Bheel community, they are illiterate persons and the appellant has no criminal past. The appellant has committed the offence on a petty issue. Learned counsel submits that despite the aforesaid, the appellant has wrongly been convicted under

Section 302 of IPC, instead of Section 304 Part – I of I.P.C as the dispute suddenly occurred and out of anger, the appellant shot two arrow.

5. Learned counsel further submits that out of 12 witnesses, the prosecution has examined only four witnesses as eye witnesses Pangu (PW-4), Dala (PW-5), Lule Singh (PW-6) and