JUDGMENT G.D. Saxena, J. – 1. This appeal under section 374 (2) of the Code of Criminal Procedure 1973 preferred by the appellant/accused is directed against a Judgment dated 29th October 2009 delivered in Sessions Trial No. 174/09 by the Additional Sessions Judge, Mungaoli, district Ashoknagar (M.P.), convicting thereby the accused/appellant for commission of offence punishable under section 302 of IPC and sentencing him to suffer imprisoment for life with a fine of Rs.1000/- and in default to suffer one year's additional rigorous imprisonment. 2. The facts, necessary for the decision of this case are that one month's prior to the date of incident, the marriage of the daughter of the deceased was to be settled with the brother of accused but due to some reasons, same was not possible and ultimately was settled with Lallu. It is alleged that on 17th February 09 at about 8 p.m., in the evening when Lallu and Ramesh, husband of Mst. Guddibai were coming back and reached near the house of Prakash Lodhi, the accused met them. There took place hot altercations between Lallu and the accused and thereafter with an intention to kill, the accused inflicted repeated three blows by means of a Farsa on the head of Ramesh, resulting he fell down. The blood started oozing from the wounds and he became unconscious. The incident was witnessed by Prakash Lodhi, Lallu and Babloo. The injured died due to injuries sustained by him. On the report by the wife of deceased, Mst. Guddibai an FIR (Ex. P/l) was lodged. The post-mortem was conducted on the body of Ramesh. Accused Karan was arrested and the weapon of offence was recovered from his possession. After investigation, the charge sheet was filed before the criminal Court. On committal, the trial was commenced. After trial, the accusd Karan was convicted and sentenced for commission of offence punishable under section 302 of IPC, as mentioned above, hence, this appeal has been submitted by the accused from jail. 3. The contention of the learned counsel for accused/appellant is that the impugned judgment of conviction and sentence is against the facts and evidence on record as well as the law, hence, same is liable to be set aside. 3. The contention of the learned counsel for accused/appellant is that the impugned judgment of conviction and sentence is against the facts and evidence on record as well as the law, hence, same is liable to be set aside. It is submitted that there are various contradictions/omissions on material particulars in the statements of the eye-witnesses, inasmuch as, the enmity between both the parties stood established from the evidence of the witnesses, therefore, recording of conviction of the accused for the alleged offence by the learned trial Court seems to be not proper and justified. Apart from the above, the medical evidence does not support the ocular evidence. On the basis of the above arguments, it is prayed that by allowing the appeal, the accused-appellant be acquitted of the charge. 4. The learned Public Prosecutor for the respondent/State on the other hand, supported the impugned judgment and prayed for dismissal of the appeal. 5. Heard the learned counsel appearing for both the sides and also perused the judgment and the evidence on record. 6. On going through the evidence of witnesses Lallu (PW-2), Prakash (PW3) and Mohan Singh (PW-5), it is noted that they all deposed in one breath that at about five months ago about 8 p.m. in night. deceased Ramesh, the husband of Mst. Guddibai and Lallu were returning back after purchasing Bidi from village to their home. They were talking about the arrangements of marriage of their daughter Yashoda with Lallu to be performed at village Sargapura. On the way, near the well of village accused Karan met them, who inflicted blow by means of "Mugaria" a wooden plunk (normally used by the villagers in chafing the grains) and caused severe injuries on the head of Ramesh. Ramesh fell down. He was lifted by Babloo, Kashiram and Lallu and brought to the house. They informed the wife of injured. When the injured was asked as to who had caused injuries to him, he disclosed the name of Karan. 7. Guddibai (PW-7) also stated that her husband was brought to her home by Lallu (PW-2), Bablu and Kashiram (PW-4) and they informed of her about the incidednt that accused Karan assaulted severe injuries to her husband by "Mugaria". When the injured was asked as to who had caused injuries to him, he disclosed the name of Karan. 7. Guddibai (PW-7) also stated that her husband was brought to her home by Lallu (PW-2), Bablu and Kashiram (PW-4) and they informed of her about the incidednt that accused Karan assaulted severe injuries to her husband by "Mugaria". She also stated that accused Karan wished about the marriage of her daughter Yashoda with his brother Shishupal whereas her brother-in-law Mardan refused his proposal for marraige of Yashoda with brother of accused Karan. Thereafter, the relations between the parties were not cordial which ended in the present result. It is stated that for want of conveyance, the FIR could not be lodged on that very day. Next day, in the morning, she along with her brother in-law and Lallu went by train to Mungaoli to report the matter to police which was lodged vide Ex. P/1. In cross-examination she admits that on the information of Lallu, she stated to the police that the accused Karan caused the severe injuries to Ramesh by means of Farsa. She is not an eye-witness of the incident and at the time of incident, she was at her home. All the witnesses denied in their cross-examination the suggestions of accused that Ramesh was in a drunk state and fell down on rough ground surface and received the injury by falling. 8. R.K. Shakya (PW-9), deposed that at the relevant time, he was posted as Sub-Inspector in the Police Station Mungaoli. He stated that on 18th February 09 during investigation on the spot, he issued the notices (Safeena Forms) vide Ex. P/2 to the witnesses and thereafter the memo of dead body vide Ex. P/3 was prepared in the presence of the witnesses. The spot-map vide Ex. P/4, memo of seizure of blood stained and plain soil of earth vide Ex. P/5 were prepared and' after seizure, the aforesaid articles were sent for chemical examination. The dead body of Ramesh was referred for autopsy to Government Hospital at Mungaoli. The witness stated that he recorded the case diary statements of the eye witnesses and concerned witnesses of the incident. During investigation, on 5th March 09, he arrested accused Karan vide arrest-memo (Ex. P/l2) and in custody on inquiry the information about recovery of weapon used in the crime by the accused was written vide memorandum Ex. The witness stated that he recorded the case diary statements of the eye witnesses and concerned witnesses of the incident. During investigation, on 5th March 09, he arrested accused Karan vide arrest-memo (Ex. P/l2) and in custody on inquiry the information about recovery of weapon used in the crime by the accused was written vide memorandum Ex. Pill and at the behest of the accused same was seized from his house as per recovery memo Ex. P/6. Seized articles were then sent to the Director of State Forensic Laboratory Sagar vide Ex. P/l3. The FSL report is Ex. P/l4 on record. On perusal of the report ((Ex. P/l4), appears that the Article-D "Mugaria" seized from the accused bears presence of human blood. 9. Dr. Denesh Tripathi (PW-11) posted in the Community Health Center Mungaoli states that on 18th February 09 he conducted autopsy on the deadbody of Ramesh and found one lacerated wound on occipital parietal area of skull of size 6 cm X½ cm X½ cm. having fracture on occipital bone with bleedings from Extra dural and intra dural of brain. This injury was found to be anti-mortem in nature. According to the doctor, the cause of death was coma due to head injury with facture. The mode of death was homicidal within 24 hours from the time of post mortem. The said post Mortem Report is Ex. P /17. 10. On detailed discussions of the factual aspects of the case, it appears from ocular evidence of the eye-witnesses and the evidence of complainant Mst. Guddibai, wife of deceased that in the incident the accused committed assault by means of "Mugaria", a wooden plug on the head of the deceased in night. Resultantly, the deceased fell down and became unconscious. Subsequently, he died due to the injuries received by him. The ocular evidence of the witnesses discussed above is thus found well supported by the medical evidence with the report of the Chemical Examiner of the State Forensic Laboratory. It is true that. Resultantly, the deceased fell down and became unconscious. Subsequently, he died due to the injuries received by him. The ocular evidence of the witnesses discussed above is thus found well supported by the medical evidence with the report of the Chemical Examiner of the State Forensic Laboratory. It is true that. there are contradictions/omissions in the FIR lodged by complainant Guddibai, who is not an eye-witness of the incident to the effect that the accused made three attempts by means of Farsa on the head of deceased and thereby caused injuries whereas as per court statements of eye-witnesses and even in the court evidence of complainant, it was mentioned that the injuries were inflicted by "Mugaria" a hard and blunt object, but this contradiction will not help the accused because the scribe of the FIR is not an eye-witness. She is an innocent and illiterate villager and belongs to category of Scheduled Tribal Woman. Thus, the charge of causing death of Ramesh is well proved by the ocular evidence duly supported by the medical evidence and the report of the Chemical Examiner of the State Forensic Laboratory Sagar. 11. The next submission of the learned counsel for the appellant is that the accused has inflicted one blow by Mugaria and in the village where the incident took place no medical facility was available to save the life of injured so there was every possibility of death of the injured for want of medical aid. It is contended that the doctor conducting the postmortem on the body of deceased Ramesh did not state in his court statement nor did he mention in the postmortem report (Ex. P/23) that the injury found on the head of the dead body was sufficient to cause death. Under the circumstances, the case of the accused is covered within the ambit of culpable homicide not amounting murder. 12. In the case of Gurmukh Singh v. State of Haryana (2009 AIR SCW 6710), the Hon. apex Court held : "22. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 IPC, but the appropriate section under which the appellant ought to be convicted is section 304 Part II IPC. 23. On consideration of the entire evidence including the medical evidence, we are clearly of the view that the conviction of the appellant cannot be sustained under section 302 IPC, but the appropriate section under which the appellant ought to be convicted is section 304 Part II IPC. 23. Before we part with the case, we would like to clearly observe that we are not laying down that in no case of single blow or injury, the accused cannot be convicted under section 302 IPC. In case of single injury, the facts and circumstances of each case has to be taken into consideration before arriving at the conclusion whether the accused should be appropriately convicted under section 302 IPC or under section 304 Part II IPC. 24. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under: a) Motive or previous enmity : b) Whether the incident had taken place on the spur of the moment; c) The intention/knowledge of the accused while inflicting the blow or injury; d) Whether the death ensued instantaneously or the victim died after several days; e) The gravity, dimension and nature of injury; f) The age and general health condition of the accused; g) Whether the injury was caused without pre-meditation in a sudden fight; h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; i) The criminal background and adverse history of the accused; j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; k) Number of other criminal cases pending against the accused; I) Incident occurred within the family members or close relations; m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the Court. The endeavour of the Court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused. 25. When we apply the settled principle of law which has been enumerated in the aforementioned cases, the conviction of the appellant under section 302 IPC cannot be sustained. In our considered view, the, accused appellant ought to have been convicted under section 304 Part II IPC instead of under section 302 IPC. 13. Thus, the question which crops up for consideration is as to what offence has the appellant committed. The guidance in that regard is available from the medical evidence. It is plain there from that the deceased has sustained injury on occipital-parietal region of the skull ad-measuring 6 cm. X½ cm X½ cm., with a fracture of occipital bone and the said injury did bring about the result of the death of the deceased. The accused-appellant could well be ascribed the knowledge that his assault on the deceased could bring him within the grip of section 304 Part II IPC. Hence, in the opinion of this Court, instead of restoring the conviction of the Court of Sessions under section 302 IPC it would be apposite to convict the accused for commission of offence under section 304 Part-II IPC. 14. In the light of the foregoing discussions, the conviction and sentence of appellant -accused for commission of offence under section 302 of IPC is set aside. However, he is held guilty for commission of an offence punishable under section 304 Part II of IPC and sentenced to undergo rigorous imprisonment for a period of five years with a fine of Rs. 5,000/- (Rs. Five thousand Only), which shall be paid as a compensation to the widow Mst. Guddibai (PW-l), under the provisions of section 357 of CrPC. 5,000/- (Rs. Five thousand Only), which shall be paid as a compensation to the widow Mst. Guddibai (PW-l), under the provisions of section 357 of CrPC. The said amount shall be deposited in the trial Court within a period of two months from the date of this judgment, after making adjustment against the amount of fine, if already deposited by the accused under the directions of the trial Court. In case the appellant fails to deposit the amount of fine, the same shall be recovered through process of law and the appellant shall have to suffer default imprisonment as directed under the impugned judgment by the trial Court. 15. Resultantly, the appeal stands allowed in part as mentioned above. A.K. Jain for appellant: Raghvendra Dixit, Public Prosecutor for respondent /State.