M.R.SHAH - (1.) Leave granted.
(2.) This appeal arises from the Judgement and Order of a Division Bench of the High Court of Judicature for Rajasthan dated 23.05.2014 passed in Criminal Appeal No.303 of 2009. The High Court, while allowing the appeal filed by the respondent, convicted him under Section 304 Part I of the Indian Penal Code, instead of Section 302 of the IPC. The High Court sentenced the respondent to undergo 8 years RI and to pay a fine of Rs.1000/ and in default of payment of fine, to suffer one month simple imprisonment. The State preferred this appeal against the said decision.
(3.) A First Information Report was lodged by one Dalip Kumar at Police Station Nimbaheda being FIR No.32/2008. It was alleged that on 26.01.2008, when PW5 ­ Ms. Kailashi was returning from the farm, in her presence, Kanhaiya Lal attacked Raju (deceased) on his head by an axe. As per PW5, Raju fell down and, on her cries, other persons reached the spot. The accused ran away. That Raju succumbed to the injuries. After concluding the investigation, the Investigating Officer filed the chargesheet against the accused for the offence punishable under Section 302 of the IPC. That the accused pleaded not guilty and therefore he came to be tried by the learned Sessions Court for the offence punishable under Section 302 of the IPC. That the prosecution examined as many as 17 witnesses including PW1 Dr. K. Asif, who issued the Injury Report (Exhibit P1); PW5 Ms. Kailashi; PW15 Dr. Anees Ahmed, who performed the PostMortem Report of the deceased. Through the witnesses who were examined, the prosecution brought on record the documentary evidence including the Injury Report (Exhibit P1) as well as the PostMortem Report. That thereafter, the statement of accused under Section 313 of the CrPC was recorded, in which accused stated that he has been falsely implicated. No evidence/witness was produced by the accused in defence. That thereafter, on appreciation of evidence, the learned Sessions Court held the accused guilty for the offence punishable under Section 302 of the IPC and sentenced him to undergo life imprisonment with fine of Rs.1000/ and in default to pay the fine, to undergo further one month SI. 3.1 Feeling aggrieved and dissatisfied with the Judgment and Order of conviction and sentence passed by the learned Sessions Court, the respondentoriginal accused preferred Appeal before the High Court being Criminal Appeal No.303 of 2009. By the impugned Judgment and Order, the High Court has partly allowed the appeal preferred by the accused and has convicted the accused under Section 304 Part I of the IPC instead of Section 302 of the IPC. Hence, the present appeal by the State against the impugned Judgment and Order passed by the High Court, converting the conviction of the accused to Section 304 Part I of the IPC in place of conviction under Section 302 of the IPC. ;