V.M. Deshpande, J. - (1.)EXCEPTION is taken to the judgment and order of conviction passed by the learned Additional Sessions Judge, Chandrapur in Sessions Case No. 130 of 2012 Dt. 29 -4 -2014 by which the appellant is convicted for the offence punishable under Section 304 -I of the Indian Penal Code and directed to suffer rigorous imprisonment for seven years and to pay fine of Rs. 1,000/ - and in default to suffer rigorous imprisonment for three months.
Factual Matrix :

(2.)BHARAT Ninaji Thakare (P.W. -6) was attached to police station, Rajura. On 29/7/2012 he was present in the police station. That day Sangeeta Durge (P.W. -1) came to police station and lodged her oral report. The report was reduced into writing. It is at Exh.12. The report was disclosing commission of cognizable offence. Therefore, a crime was registered by Bharat Thakare vide Crime No. 126 of 2012 for the offence punishable under Section 302 of I.P.C. against the appellant. Printed F.I.R. is at Exh.13.
Sangeeta Durge (P.W. -1) is the widow of deceased Santosh Durge. She, along with her husband, used to reside at Yergavan. Deceased Santosh was having two real brothers, they are Sanjay and Sunil (appellant). Sanjay used to reside in the house of his father -in -law at Yergavan. Sangeeta used to reside along with her father -in -law, accused Sunil and his wife jointly in the same house, however, their kitchen was separate. The agricultural field was partitioned and every member of the family was allotted five acres of land. Father -In -Law of Sangeeta purchased a motorcycle for accused Sunil about two years back. He was habituated to drinks.

The first information report further discloses that on 29/7/2012 she and her husband went to agricultural field for agricultural operations. That time appellant Sunil was present in the house. At about 3.00 p.m. the couple returned back to house. That time Sunil was not there in the house. His wife came from the agricultural field at about 5.00 p.m. At about 5.30 p.m. Sunil came to the house. At that time deceased was talking with the father -in -law of the first informant that he is not giving any word of advise to appellant Sunil, who is not doing any work, he just wander in the village and he is miscreant. In spite of that, he is not giving word of advise to him. That time Sunil came there. At that time deceased asked him that he has already spent Rs. 2,000/ - received from the State Government. Upon that, verbal exchanges took place between the deceased and the appellant. At that time the deceased gave one slap to the appellant. Upon that, the appellant went inside the house, brought a dagger and gave its blow on the chest of Santosh. Due to that when Santosh sat down, the appellant gave two blows on his head. These are the basic facts asserted in the first information report.

After the crime was registered, P.W. -6 Bharat Thakare arrested the appellant under arrest memo (Exh.35). The Investigating Officer reached to the spot and in presence of independent panchas a spot panchanama was drawn (Exh.16). He also seized blood with cotton swab from the spot under seizure memo (Exh.17). Clothes of the deceased were seized from his wife (P.W. -1) Sangeeta under seizure memo (Exh.18). He also recorded statement of witnesses. The clothes of the appellant were also seized under seizure memo (Exh.30).

When the appellant was in police custody, he made disclosure statement and laid the police party for recovery of the weapon. After completion of usual investigation, since the Investigating Officer was of the view that sufficient material is collected during investigation to send the appellant for trial, a chargesheet was filed before the Court of law.

A Charge was framed against the appellant by Additional Sessions Judge, Chandrapur in Sessions Case No. 130 of 2012 vide Exh.6 for the offence punishable under Section 302 of the Indian Penal Code.

In order to bring home the guilt of the appellant, the prosecution, during the course of the trial, examined six prosecution witnesses and also relied upon the various documents duly proved. After a full -fledged trial, the learned Judge of the trial Court though found that the prosecution has failed to prove the charge against the appellant for the offence punishable under Section 302, however, the learned Judge was of the view that the prosecution has successful in bringing the case against the appellant for the offence punishable under Section 304 -I of I.P.C. and has convicted him accordingly.

Submissions :

I heard Shri Mandpe, learned Counsel for the appellant and Shri Laddhad, learned Assistant Public Prosecutor for the State.

(3.)ACCORDING to learned Counsel Shri Mandpe, the Court below has committed mistake in convicting the appellant for the offence punishable under Section 304 -I of I.P.C. According to him, the learned Judge of the trial Court ought to have convicted the appellant for the offence punishable under Section 304 -II of I.P.C. Thus, according to him, on the touchstone of the prosecution evidence, the appellant was entitled to conviction for lessor offence and lessor punishment. The learned Counsel for the appellant has relied upon the judgment of this Court in the case of Monica @ Mona D'souza Vs. State of Goa, reported in : 2009 (4) Mh.L.J. (Cri) 193. Alternatively, he submitted that even if this Court is of the view that the appellant is required to be convicted for the offence punishable under Section 304 -I of I.P.C., the quantum of sentence can be reduced by increasing the fine amount.