Intention to cause death was not established; thus, conviction under Section 302 IPC was quashed and modified to Section 304 Part II IPC.

1. With the consent of the parties, the case is heard finally at motion hearing stage.

This appeal has been filed being aggrieved with the judgment dated 29.04.2017 passed by the learned Second Additional Sessions Judge, Jabalpur in S.T. No.470/2015 by which, the appellants have been convicted for the offence punishable under S.302 of the Indian Penal Code and sentenced to undergo R.I. for Life Imprisonment with fine amount of Rs.10, 000/- and under S.450 of the Indian Penal Code and sentenced to undergo R.I. for 07 years with fine amount of Rs.5, 000/- with default stipulations each.

2. In nutshell, the prosecution case before the trial Court was that the deceased Premlal was the resident of Gupteshwar, Jabalpur and was running a shop in the name of Jeevan. On 03.04.2015, he was sitting in his shop, at about 08:00 am, Sanju alias Tota and one person who is son of Munna reached in shop armed with iron rod. The son of Kallu falwala was also there and all the three persons started abusing him and entered into his shop. Sanju alias Tota after abusing him, said to him that his ganja was caught due to him / deceased and both of them started assaulting him with iron rods and the son of Kallu Phalwala also started assaulting him with the hands and fists. He had cried for help, Ramunna Sahu and Rakesh Chakravarti came there and rescued him and the accused persons threatened him while they were going from the spot. In the injured condition, the victim / deceased was brought to police station Gorakhpur, then he lodged the F.I.R. that was registered as a Crime No.176 of 2015 for the offence punishable under S.294, S.323, S.324 and S.452, 506 read with 34 of the Indian Penal Code. The deceased was sent for medical examination. Medical examination was conducted by duty Dr. Monika Kapoor (PW - 5) in Jabalpur Medical Hospital. During treatment, the deceased died and autopsy was conducted on 03.04.2015 by Dr. Virendra Kumar Maravi (PW - 7). During investigation, the spot map was prepared. The appellants were arrested and from their possession, an iron rod, iron pipe and motorcycle were recovered. The case was submitted before the Judicial Magistrate First Class, Jabalpur and on commitment, transfer before the trial Court.

3. The trial Court framed the charges under S.120 - B, 450, 302, 294 and 506 of the Indian Penal Code against the appellants. Appellants and the co - accused persons abjured the guilt and prayed for trial. The trial Court recorded the prosecution evidence and examined the appellants under S.313 of the Code of Criminal Procedure. The appellant No.2 Chandan has taken the defence that he has been falsely implicated in the case and at the time of offence, he was not present on the spot but was working in Dhanwantri Nagar Bhukamp Colony as a labourer.

4. The trial Court after hearing both the parties, passed the impugned judgment and acquitted Sanju Chaurasiya, son of Keshav Prasad Chourasiya and convicted these appellants and passed the sentence as stated in paragraph No.1, hence, this appeal.

5. Learned counsel appearing on behalf of the appellants has submitted that the appellants have been falsely implicated in the case. In the FIR, the deceased himself has not named the accused Chandan Ahirwar and only stated that the son of Munna Mistri was involved in the offence and in the prosecution case itself, there are at least two Munna, one is the witness of spot map (exhibit - P / 1) and another is Munna Sahu (PW - 4). This name is so common and on that basis, it cannot be decided that the appellants were involved in the case and by defence witness, appe