Vivek Agarwal, J.

1. Shri Dhiman Chandra Mallik, learned counsel for the appellant instead of pressing I.A. No.30107/2025, which is the first application under Section 389(1) of the Cr.P.C./Section 430(1) of the Bhartiya Nagrik Suraksha Sanhita, 2023 for suspension of sentence and grant of bail to appellant Akku @ Akash S/o Shri Ganesh Raikwar, prays that this appeal be heard finally.

2. Accordingly, I.A. No.30107/2025 is dismissed as not pressed and with the consent of the parties, this appeal is heard finally.

3. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by the convicted appellant Akku @ Akash being aggrieved of the judgment dated 28.08.2017 passed by the learned Sessions Judge, Bhopal (M.P.) in Sessions Trial No.1087/2017 ( State of Madhya Pradesh Vs. Akku @ Akash ), whereby the learned trial Court has convicted the appellant for offence under Section 302 of the Indian Penal Code, 1860 and sentenced him to undergo life imprisonment and to pay a fine of Rs.1,000/- with a stipulation to undergo additional R.I. for 6 months in default of payment of fine amount.

4. Shri Dhiman Chandra Mallik, learned counsel for the appellant submits that at the time of the incident, the age of the appellant was about 20 years. He was in his prime of youth. The incident took place all of a sudden. It has come on record that deceased Jaswant was having a lot of clout in the locality and he was infamous for his deeds. It is firstly submitted that it is a case of false implication. Reading from the evidence of PW-6 Ravi Mehra, it is submitted that all the eye-witnesses have been planted. It is pointed out that PW-6 Ravi Mehra stated that wife and children of Jaswant were not at home and the house was locked. This witness PW-6 Ravi Mehra had taken Jaswant to the hospital.

5. Secondly, it is submitted that in the alternative, even if the theory of false implication is not accepted, then also as per the MLC carried out by PW-14 Dr. Sunil Kumar Dwivedi, he had found injury on head of Jaswant, as a result of which injured had become unconscious. There was an abrasion on the face. The third injury was swelling on the upper lip. As per the doctor, all the injuries were caused by hard and blunt object. Thus, it is submitted that as per the MLC report carried out by PW-14 Dr. Sunil Kumar Dwivedi, it is evident that PW-2 Shivani stated that Jaswant was beaten by Akku @ Akash with kicks and fists and injury sustained by him on his head was on account of his fall on a hard surface as is admitted by PW-14 Dr. Sunil Kumar Dwivedi. In fact, PW-14 Dr. Sunil Kumar Dwivedi in paragraph 5 of his cross-examination, admitted that he had not found any injury caused with a glass bottle and had also not found any glass piece on the head injury. Thus, it is submitted that at best the case will fall under Section 304 of the IPC, inasmuch as, death occurred after more than 10 days of the incident i.e. on 28.08.2016.

6. Shri Ajay Shukla, learned Public Prosecutor, in his turn, supports the impugned judgment and submits that present is a case of grievous injuries caused to Jaswant. The clothing of appellant Akku @ Akash i.e. jeans pants (Article 'F') and shirt (Article 'G') contain human blood. Thus, it is submitted that no indulgence is called for in the impugned judgment of conviction and sentence.

7. After hearing learned counsel for the parties and going through the record, PW-1 Baijanti Bai stated that Jaswant was her husband. The accused had visited her house at about 8:00 p.m. and started abusing her husband. As soon as her husband came out of his house, he was caught hold of by his hair and thrown on the floor. In the meanwhile, this witness and both her daughters Shivani and Swati came out and tried to intervene, then the accused had pushed them. According to the evidence of this witness, Jaswant was beaten with kicks and fists. There is an allegation that the appellant had hit Jaswant with a bottle of alcohol, causing injury on his head.

8. PW-2 Shivani has corroborated the statement of her mother PW-1 Baijanti Bai. She has, however, contradicted statements of her month to the extent that on the one hand, PW-1 Baijanti Bai stated that when the appellant was abusing them from outside their house, then her husband Jaswant had gone out, whereas PW-2 Shivani stated that her father Jaswant was dragged outside the home by accused Akku @ Akash. She admitted that at the time when the incident took place, she was inside her house. They were preparing to go to the market, but on account of altercation, they could not visit the market. She stated that there was no reason for the incident and it happened out of will.

9. PW-3 Swati admitted that at the time of the incident, she herself, her sister and her mother had gone to the market, but later on, she improvised her statement and stated that they had returned back to their home. She admitted that neighbours had come to their house, but she does not know their names.

10. PW-4 Vijay Yadav stated that he had learnt that his uncle had entered into an altercation with somebody and he was admitted at Hamidiya Hospital, where he had gone to see him. This witness further stated that after few days, his uncle died. This witness was declared hostile and leading questions were put to him.

11. PW-5 Shivnarayan has also turned hostile. He has not supported the prosecution case.

12. PW-6 Ravi Mehra categorically stated that he had taken Jaswant to the hospital as Jaswant's wife and his children were not at home and their house was locked. This fact has been tacitly admitted by PW-3 Swati that they had gone to the market at the time of the incident.

13. PW-7 Dr. Priyamvada Kurveti had conducted the post-mortem on the body of deceased Jaswant. In her cross-examination, she clearly stated that at the time of the post-mortem, no piece of glass was recovered from the head of the deceased.

14. PW-8 Devendra Yadav is brother of PW-1 Baijanti Bai and brother- in-law of deceased Jaswant. He is a hearsay witness. This witness admitted that his sister had informed him about the incident. This witness admitted that he had signed the seizure memo at the police station.

15. PW-9 Ramesh Singh, A.S.I., had lodged the report under Sections 294, 307 of the I.P.C., which is Ex.P-1. He admitted that the report was lodged a day after the incident. He is also the police official, who had carried out the seizure.

16. PW-12 Lalit Singh Dagur, Inspector, stated that he was posted as S.H.O. at Police Station Bagsevaniya, District Bhopal on 19.08.2016. He had taken Akku @ Akash in custody and interrogated him in front of Baijanti Yadav and Devendra Yadav. He had recovered blood stained clothings. This witness admitted that the complainant had reached the police station on 18.08.2016 to lodge the report. He admitted that Shivani and Swati in their 161, Cr.P.C. statements had not informed him that they too were beaten by the accused-appellant. This witness admitted that he had not prepared the spot map.

17. PW-14 Dr. Sunil Kumar Dwivedi, who had given first treatment to Jaswant at J.P. District Hospital, Bhopal, admitted that he had only seen three injuries, out of which, one on the head was grievous. This witness admitted that he had not seen any injury caused by a glass bottle or glass piece.

18. When these facts are taken into consideration, then looking to the fact that the altercation took place where the appellant had intention to cause injury, but had no knowledge that the injuries caused by him could become cause of death, the case of the appellant will fall under Exception 1 to Section 300 of the IPC and, therefore, the conviction of the appellant needs to be and is hereby altered from one under Section 302 to Section 304 Part-I of the IPC and the appellant is directed to undergo R.I. for 10 years and to pay a fine of Rs.1,000/- with a stipulation to undergo additional R.I. for 6 months in default of payment of fine amount.

19. In the result, the criminal appeal filed by the appellant is allowed in part and is disposed of to the extent indicated above. The record of the trial Court be sent back. Pending application(s), if any, also stand disposed of.