JUDGMENT A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 05th of August, 2004 passed by the learned Sessions Judge, Gwalior in Sessions Trial No. 164/2004, convicting the appellant under Section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 1000/-, in default, further one month's imprisonment, the appellant has knocked the doors of this Court by filing this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that, during the dawn hours of 25/2/2004, Ramswaroop (herein after, referred to as the "deceased") was cleaning his bicycle, at that juncture, acquitted co-accused Shyamlal was brooming his house and was throwing the garbage and rubbish material in front of the house of the deceased, which was objected by the deceased, as a result of which, altercation took place between them. Son of the deceased namely Keshav Singh Chandel intervened and pacified the deceased that he will clean the garbage. After a gap of sometime, the deceased, by carrying his punctured bicycle, was going on foot towards his work place at Bahodapur. At that juncture, acquitted co-accused Shyamlal provoked his brother appellant Bhagwansingh alias Pappu that today the deceased should not be spared and he should be finished. This conversation, took place between the acquitted co-accused Shyamlal and the appellant, was heard by the sons of the deceased namely Keshav Singh Chandel and Ajit alias Mahendra, as a result of which, after the departure of the deceased from his home, these two persons chased him. It is the further the case of the prosecution that when the deceased reached nearby Koteshwar temple, the appellant and the acquitted co-accused Shyamlal were standing there. Appellant gave a blow of stick by using full force on the head of the deceased, as a result of which, he fell down and blood stared oozing from his head, mouth and nose. Sons of the deceased namely Keshav Singh Chandel and Ajit alias Mahendra brought their injured father to the police station where FIR was registered against the appellant for the offence punishable under Section 307 of IPC. The deceased was sent to the hospital for treatment, but during the course of treatment, the deceased could not survive and ultimately he died in the night. 3. The deceased was sent to the hospital for treatment, but during the course of treatment, the deceased could not survive and ultimately he died in the night. 3. The investigating agency investigated the matter and after the investigation was over, submitted the charge sheet in the committal Court, which on its turn, committed the case to the Court of session, where the accused persons were tried. 4. The learned Trial Judge on the basis of the allegations made in the charge sheet, framed charge punishable under Sections 302 of IPC against the appellant, and under Section 302/ 34 against acquitted co-accused Shyamlal. Needles to say that both the accused persons abjured their guilt and pleaded complete innocence. 5. In order to bring home the charge, the prosecution examined as many as nine witnesses and placed Ex. P/1 to P/13, the documents on record. 6. The defence of the accused persons is of false implication and the same defence they set forth in their statements recorded under Section 313 of Cr.P.C. however, in support of their defence, they did not choose to examine any witness. 7. The learned Trial Judge on the basis of the evidence placed on record came to hold that charge under Section 302 of IPC has been found to be proved against the appellant, eventually, convicted him and passed the order of sentence, while co-accused Shyamlal has been acquitted by the impugned judgment. 8. In this manner, this appeal has been preferred by the appellant assailing his judgment of conviction and order of sentence. However, the State of Madhya Pradesh has not filed any appeal against the impugned judgment acquitting co-accused Shyamlal. 9. The contention of Shri M.K. Jain, learned Counsel for the appellant is that, in the present case, there are two eye witnesses namely Keshav Singh Chandel (PW 5) and Ajit alias Mahendra (PW 6), but if their testimony is taken into consideration in proper perspective, it would reveal that these two witnesses are not worth reliable. 9. The contention of Shri M.K. Jain, learned Counsel for the appellant is that, in the present case, there are two eye witnesses namely Keshav Singh Chandel (PW 5) and Ajit alias Mahendra (PW 6), but if their testimony is taken into consideration in proper perspective, it would reveal that these two witnesses are not worth reliable. An alternative submission has also been put forth by the learned Counsel that if this Court comes to the conclusion that on account of stick blow dealt by the appellant to the deceased, the deceased had died, since the incident occurred all of a sudden when the appellant threw certain rubbish material at the door of the house of the deceased, and if that would be the position, certainly the act of the appellant would come within the ambit and sphere of Exception IV to Section 300 of IPC and the conviction of the appellant is to be altered from Section 302 of IPC to Section 304 Part I of IPC. 10. Per contra, Shri MPS Bhadoriya, learned Public Prosecutor argued in support of the impugned judgment. 11. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be dismissed. 12. We do not find any merit in the contention of the learned Counsel for the appellant that the eye witnesses namely Keshav Singh Chandel (PW 5) and Ajit alias Mahendra (PW 6), are not worth reliable. On going through the testimony of eye witness Keshav Singh Chandel (PW 5), we find that firstly altercation took place on the point of throwing of garbage and rubbish material in front of their house, but on being pacified by this witness to the deceased, the deceased and the appellant went back towards their respective houses. Thereafter, when the deceased was going to his work place on foot by carrying his bicycle, because it was punctured, this witness heard the conversation between the appellant and acquitted co-accused Shyamlal that the deceased should not be spared and he should be killed, as a result of which, this witness and his brother Ajit alias Mahendra (PW 6) went to alert the deceased. Specifically, this witness is saying that when they reached nearby Koteshwar temple, they saw the appellant having a stick in his hand and by using full force dealt its blow on the head of the deceased, as a result of which, the deceased immediately fell down and blood started oozing from his head, nose, mouth etc. 13. The evidence of Keshav Singh Chandel (PW 5) has been coroborated by the evidence of Ajit alias Mahendra (PW 6). 14. Dr. Puran Lal Gupta (PW 4) is the autopsy surgeon who has conducted the postmortem of the person of the deceased and has also proved postmortem report which is Ex.P/6. On going through the testimony of this doctor, we find that the deceased sustained following injury.: Lacerated wound on the top of scalp size 6 cm x 2 cm long, with rail pattern bruise at anterior end. Underneath the wound, left temporal bone is fractured in 8 cm length, margins of the wound are irregular and bleeding sign present. According to the doctor, the injury was sufficient in ordinary course to cause the death. The autopsy surgeon denied the suggestion put by the defence in para 7 of the cross-examination that on account of fall from the bicycle or on a stone boulder, the injury sustained by the deceased may come. 15. Looking to the evidence of the eye witnesses namely Keshav Singh Chandel (PW 5) and Ajit alias Mahendra (PW 6), we find that in the middle region of the head, blow of lathi was dealt by the appellant and looking to the nature of the injury which we have quoted herein above, it can be inferred that by applying full force, the same has been dealt. Therefore, according to us, the learned Trial Court did not commit any error in holding that on account of blow of stick given by the appellant, the deceased had died. 16. We may now advert ourselves to the alternative submission put forth by the learned Counsel for the appellant. True, in the morning, altercation took place between the appellant and the deceased on the point of throwing garbage and rubbish material in front of the house of the deceased, but if the incident would have occurred at that juncture, the alternative submission might be accepted. True, in the morning, altercation took place between the appellant and the deceased on the point of throwing garbage and rubbish material in front of the house of the deceased, but if the incident would have occurred at that juncture, the alternative submission might be accepted. However, the distinguishing feature in the present case is that after the matter was settled on the intervention of the son of the deceased namely Keshav Singh Chandel (PW 5), the appellant and the deceased went back to their respective homes, thereafter, when the deceased was going to his work place on foot by carrying his bicycle because it was punctured, at that juncture, on the way, nearby Koteshwar temple, the appellant carrying a lathi dealt its blow by full force on the middle region of the head of the deceased, and therefore, we can infer that there was an intention of the appellant to kill the deceased. Looking to the injury sustained by the deceased, we are of the view that the act of the appellant would come within the ambit of 'culpable homicide amounting to murder' and, therefore, the learned Trial Court did not commit any error in convicting the appellant under Section of IPC and passing the order of sentence. 17. This appeal is found to be bereft of any substance and the same is hereby dismissed.