Order on Board

09/12/2022 Sanjay K. Agrawal, J.

On I.A. No. 1 :-

1. Heard on I.A. No. 1, application for condonation of delay in filing the appeal.

2. Since sufficient cause has been shown for delay in filing the appeal, as such, I.A. No. 1 is allowed and delay in filing the appeal is hereby condoned.

On Admission :-

3. This criminal appeal under Section 377(1) has been preferred by the appellant/State calling in question the impugned judgment dated 27/07/2019 passed by learned First Additional Sessions Judge, Durg in Sessions Trial No. 28/2019 whereby respondent has been convicted for offence punishable under Section 304 Part II of IPC and sentenced to undergo R.I. for 7 years with fine of Rs. 500/- and in default of payment of fine, further R.I. for 15 days.

4. Mr. Sudeep Verma, learned counsel for the appellant/State, would submit that though the instant appeal has been preferred under Section 377(1) of CrPC, but in fact, the relief sought is to convert the conviction of the appellant for offence punishable under Section 304 Part II of IPC to Section 302 of IPC and also to enhance of his jail sentence in the interest of justice.

5. We have heard learned counsel for the appellant/State on question of admission with utmost circumspection.

6. Case of the prosecution, in brief, is that on 18/10/2018 at about 10 PM, Smt. Janki Minj (deceased) was lying down and taking rest when her husband Sumaru Minj (respondent herein) demanded money from her in order to purchase/drink liqour and when refused to give him money, the respondent/accused picked up the grinding stone kept nearby in the house and hit Smt. Janki Minj on her head due to which she suffered grievous injury and blood started oozing out. When neighbours were informed about the incident, they immediately took her to the District Hospital, Durg and admitted her wherein she succumbed to death on

19/10/2018 at about 2 AM while undergoing treatment. On the basis of the information received from the hospital, merg intimation was registered at the Police Station and first information report was lodged after which the wheels of investigation started running. The dead body of Smt. Janki Minj was subjected to postmortem which was conducted by Dr. Vipin Jain (P.W.-8) and as per the postmortem report (Ex. P/8), cause of death is said to be head injuries and complications relating to said injuries and the nature of death is said to be homicidal. After taking the respondent/accused into custody, his memorandum statement was recorded vide Ex. P/2 and on that basis, grinding stone and the blood stained clothes worn by the respondent/accused at the time of incident were seized vide Ex. P/3. The said seized articles were sent for FSL and vide FSL report (Ex. P/29), human blood was found on the grinding stone and human blood of B blood group was found on the clothes worn by the respondent/accused as well as the deceased. After due investigation, the appellant was charge-sheeted for offence punishable under Section 302 of IPC which was committed to the Court of Sessions for trial in accordance with law, however, the trial Court, finding the respondent/accused to be the perpetrator of the crime in question, but further finding that he did not have any intention or premeditation to cause the death of the deceased but he must have had the knowledge that his act would cause the death of the deceased, proceeded to convict the respondent/accused for offence punishable under Section 304 Part II of IPC and sentenced him as aforesaid, which has been assailed by the appellant/State by way of this appeal.

7. A careful perusal of the impugned judgment would show that the trial Court has recorded an express finding that respondent/accused and deceased, being husband and wife, had cordial relations between them prior to the date of the incident and they seldom entered into quarrel. Even on the day of the incident, respondent/accused demanded money from the deceased for purchasing/drinking liqour, however, when th