JUDGMENT : The appellant Gendalal has been convicted for offence under Section 302 of IPC and sentenced to imprisonment for life and fine of Rs. 1,000/- and 6 month's RI in default by the judgment dated 26/12/2003 passed by VII Additional Sessions Judge Indore in Sessions Trial No. 163/2003. 2. The appellant was charged for causing murder of Radhakishan. 3. The prosecution case is that Radhakishan had lodged the FIR on 2/4/2003 at 8.10 a.m. in Police Station Khudel Chouki Campel that at 7.45 a.m. when he was sitting in his Otla at that time appellant came with axe and had caused injury on his head and given blow with handle of axe near the left eye. The appellant had suspicion that Radhakishan was misguiding his wife. At the time of incident, Makhan, Tejkaran, Subhash and Subhash Rawat were present. Initially offence under Sections 324, 294 and 506 IPC was registered and Radhakishan was sent to MY Hospital. His MLC was done and he was referred for surgery and was admitted in hospital. During course of treatment he had died on 16/4/2003 in the hospital. Postmortem was done and offence was investigated and challan was filed. The appellant was charged for offence under Section 302 IPC. The appellant had absurd the guilt and trial took place. 4. The finding of trial about culpable homicide of Radhakishan has not been challenged during course of argument and is therefore, kept intact. 5. Learned counsel for appellant submits that there was no motive or intention to cause death and there was no previous enmity. He further submits that initially offence u/s 324, 294 and 506 IPC was registered therefore, appellant cannot be convicted u/s 302 IPC. 6. Learned counsel for State has supported the impugned judgment. 7. We have heard learned counsel for the parties and perused the record. 8. PW-12 Dr. Shubha Mandloi had done the preliminary examination of Radhakishan and found injuries on right side of head in parietal region measuring 8 cm X 3 cm and above the left eye measuring 1 cm X ½ cm. She had opined that injuries were caused by hard and sharp object. MLC prepared by her is Ex. P-17. 9. Thereafter deceased was treated in surgery department. 10. PW-11 Dr. She had opined that injuries were caused by hard and sharp object. MLC prepared by her is Ex. P-17. 9. Thereafter deceased was treated in surgery department. 10. PW-11 Dr. Milind Joshi had noted lacerated wound of right parietal region admeasuring 10 c.m. X 1 c.m.X muscle deep and lacerated wound above left eye admeasuring 1 cm X 1 cm X muscle deep and had also found the left eye to be black on account of blood clotting and had opined that the injuries were grievous and life threatening. In his report Ex. P-11, he had stated that "head injury is grievous and dangerous to life". 11. Radhakishan had died during the course of treatment on 16/4/2003. His postmortem was done by PW-9, Dr. Ravindra Choudhary, who had also noted the aforesaid injuries and had found that there was a fracture of 27.3 cm in right parietal region and a linear fracture of 4 cm in that region and below the injury brain was lacerated and there was a lot of blood clotting due to injury. He had opined that Radhakishan had died on account of coma caused by head injury and head injury was sufficient to cause death in ordinary nature of course. Postmortem report is Ex.P-11 disclosing the above cause of death. 12. The above analysis clearly reveals that Radhakishan had received injury on head which resulted in his death. 13. The appellant has been connected with offence by as many as four witnesses namely PW-2 Burkhilal @ Jagdish, PW-3, Subhash son of Sukhram, PW-4, Subhash son of Bherulal and PW-6 Makhan. 14. PW-2 Burkhilal has stated that at the time of incident Radhakishan was sitting outside the fence and he was sitting inside and he had seen the incident through open wooden door. According to him, appellant had given blow with axe on the head of Radhakishan. He has also stated that appellant had come with a small axe and at that time Makhan and Subhash were sitting on otla. 15. According to him, appellant had given blow with axe on the head of Radhakishan. He has also stated that appellant had come with a small axe and at that time Makhan and Subhash were sitting on otla. 15. PW-3 Subhash son of Sukhram has also stated that he alongwith Subhash son of Bherulal and Makhan was sitting in otla of house of Radhakishan at a distance of 10-15 feet from Radhakishan when appellant came with axe and had caused injury with axe on the head and near the eye and mouth of Radhakishan and that appellant used to say that Radhakishan was keeping bad eye on his wife and earlier also quarrel had taken place between appellant and Radhakishan and appellant had come with intention to kill Radhakishan. 16. PW-4 Subhash son of Bherulal has also given the same version and had identified the appellant in the Court. 17. Similarly PW-6 Makhan has also supported the prosecution case and has disclosed that dispute was because appellant used to say that Radhakishan had illicit relation with his wife and that earlier also quarrel had taken place between appellant and Radhakishan. 18. Thus the above eye witnesses have clearly stated that appellant had caused injury to Radhakishan on the head with axe and their statements are corroborated by medical evidence. 19. Record reveals that FIR Ex.P-8 was lodged by Radhakishan immediately after the incident stating that injury was caused by appellant by means of axe on his head and by using the handle of axe above his eye. FIR discloses the presence of witnesses Subhash, Subhash Rawat, Makhan and Tejkaran on the spot at the time of incident. Since Radhakishan had died subsequently, therefore, FIR Ex. P-12 is in the nature of dying declaration which also supports the prosecution case. 20. The argument of counsel for appellant that there was no motive or intention to cause death is without any merit because the statement of witnesses noted above, reveal that there was already a quarrel between appellant and Radhakishan on the issue of keeping bad eye and illicit relation with the wife of appellant. Radhakishan had also disclosed the said motive in the FIR, Ex.P-8, which was lodged soon after the incident. 21. Radhakishan had also disclosed the said motive in the FIR, Ex.P-8, which was lodged soon after the incident. 21. Similarly argument of learned counsel for appellant that the offence was initially registered under Sections 324, 294 & 506 of IPC, therefore, the appellant could not have been convicted under Section 302 of IPC, cannot be accepted because at the time of registration of FIR, the medical expertise was not available and thereafter when doctors, PW-12 Dr. Subha Mandloi and PW-11 Dr. Milind Joshi had examined the deceased Radhakishan they had found the head injury to be grievous in nature and thereafter Radhakishan had succumbed to the injury. The statement of PW-9 Dr. Ravindra Choudhary as also postmortem report Ex.P-11 clearly reveal that death was caused due to head injury caused by axe by the appellant and said injury was sufficient to cause death in ordinary course of nature. 22. Having regard to the aforesaid, we are of the opinion that trial court has not committed any error in reaching to the conclusion that appellant had committed offence under Section 302 of IPC. Looking to the nature and gravity of offence, the sentence of life imprisonment and fine has rightly been awarded. 23. Hence the appeal is found to be devoid of any merit, which is accordingly dismissed.