- (1.) By this appeal, a challenge is made to the order dated 5 th July, 2013, passed by the Additional Sessions Judge No.1, Kishangarhbas, Alwar in Session Case No.14/10(20/11)(26/11). The accused-appellant was convicted for offence under Section 302 IPC and sentenced to life imprisonment with fine of Rs.50,000/-, in case of default to pay fine, to further undergo one year rigorous imprisonment. The trial court directed to pay a sum of Rs.40,000/- as compensation out of the amount of fine. Learned counsel for appellant submits that incidence took place under sudden provocation and on the spur of moment, thus a case for offence under Section 302 IPC was not made out. It is moreso when weapon used in the occurrence is such which remains readily available in the villages. Referring to the facts of this case, it is stated that accused- Jaisingh was trimming the tree. The deceased-Prithvi Singh came and asked him not to do it. On hearing the aforesaid, the accused gave two blows to the deceased by an axe. The injuries out of which were on the head and neck. The accused ran away from the scene of occurrence immediately when complainant-Matu Singh came on the spot. Thereafter, Laman Singh and Parkash also reached there. They had also seen the occurrence. The deceased ultimately succumbed to injuries and it was on the spot.
(2.) The incidence was reported to police and, accordingly, an FIR No.99/08 was registered for offence under Section 302 IPC. After investigation, a charge sheet was filed against the accused. The trial court, thereupon, framed charge for offence under Section 302 IPC and explained it to the accused. He denied the charge, thus trial commenced. In trial, the prosecution produced thirteen witnesses and seventeen documents to support its case. In defence, four documents were produced by the accused. His statement was recorded under Section 313 Cr.P.C. The prosecution could prove its case not only by producing eye-witnesses to the occurrence but recovery of the weapon and other evidence.
(3.) Learned counsel for appellant has not disputed the incidence but it is said to be under sudden provocation and took place on the spur of moment. It was when accused was trimming the tree and the deceased asked him not to do it, rather, orally forbid him to do so. At that stage and seems to be under anger, the accused used an axe for causing two blows to the deceased. In view of the above, prayer of learned counsel for appellant is to bring the present case under Section 304 Part-I IPC instead of Section 302 IPC.;