The conviction was modified from murder to culpable homicide not amounting to murder, based on the context of provocation and lack of intent.

1. This criminal appeal filed under S.374(2) of the Code of Criminal Procedure, 1973 takes exception to the judgment dated 17/11/2011 passed in Session Case No. 191/2011 decided by learned Sessions Judge, Chhindwara, whereby appellant was held guilty for committing offence under S.302 of IPC and directed him to undergo sentence of Life imprisonment with fine of Rs.1,000/-, with default stipulation.

2. As per prosecution story, deceased Dadu alias Ismile was an employee of Raju Thakur. He used to reside in the agricultural field of Raju Thakur with family. On 17/06/2011, the family members of Dadu alias Ismaile went to Hingan Ghat and he alone was there in his 'Kotha'.

3. The employer of Dadu namely Raju Thakur was coming back from Nagpur at around 12 O'clock in the night. He found that Dadu is roaming around the bus stand with other persons. He stopped his vehicle and scolded Dadu as to why he is not guarding the agricultural field and roaming around near bus stand. Dadu agreed to go back for his duties to the agricultural filed. Along with Dadu, appellant Chhagan alias Bhura and Sanjay reached the Kotha of Dadu. In the Kotha, a sudden quarrel took place between Dadu and the appellant. The appellant picked up a Ubhari (piece of wood) used in bullock cart and assaulted Dadu by means of said Ubhari. Dadu succumbed to the injuries.

4. Upon receiving the information, 'marg' intimation was recorded. The investigation was conducted. Post - mortem report of deceased was obtained. The weapon (Ubhari) was recovered on the basis of memorandum of appellant. The blood stained cloth of deceased and clothes of appellant were also recovered and sent for examination to the Forensic Science Laboratory. In turn, report of Laboratory (Ex.P / 19) was received. After completion of investigation, chalan was filed. After committal, matter reached to the Sessions Court. The appellant abjured the guild and prayed for full fledged trial.

5. The Court below framed a question for its determination and recorded statement of 10 prosecution witnesses. Nobody entered the witness box on behalf of the defence. After recording evidence and after hearing the parties, impugned judgment dated 17/11/2011 was passed whereby the appellant was held guilty for committing offence under S.302 of IPC.

6. Contention of appellant.
Shri Rohit Pegwar, learned counsel for the appellant confined his arguments on the conviction part only. His effort was to establish that if story of prosecution and evidence so led is accepted in toto, it will be clear that the offence committed by the appellant at best, attracts S.304 Part - II of IPC and not S.302 of IPC. Since appellant remained in actual custody for 12 years 1 month and 7 days, the conviction may be converted as aforesaid and he may be released by treating him to have undergone the desired sentence.

7. To elaborate, the reliance is placed on the statement of Sanjay (PW - 2) who as per the prosecution story was present at the house of deceased Dadu. It is canvassed that this witness stated that when they reached the house of Dadu at around 02:00 O' clock in the night, a quarrel took place between Dadu and appellant because Dadu asked the appellant as to why he came to his house. Dadu by means of a cane assaulted appellant on his buttock. The appellant left the place and came back after sometime with a lathi. He assaulted Dadu and caused certain injuries. Dadu succumbed to the injuries.

8. The statement of Diwakar (PW - 1) is also relied upon who resides in front of the house of Dadu. This witness in Para -