M.R. Shah JUDGMENT
M.R. Shah, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment and order dated 18.01.2017 passed by the Madurai Bench of the High Court of Judicature at Madras in Criminal Appeal (MD) No. 122 of 2016 by which the High Court has dismissed the said appeal and has confirmed the judgment and Order of conviction and sentence passed by the learned IV Additional District and Sessions Court, Tirunelveli in Sessions Case No. 354 of 2012, convicting the Appellant herein - the original Accused for the offence punishable Under Section 302 Indian Penal Code, the original Accused has preferred the present appeal.
3. At the outset, it is required to be noted that vide order dated 01.04.2019, this Court has issued a notice in the present appeal limited to the extent as to whether the conviction ought to have been Under Section 304 Part II or Section 302 Indian Penal Code. Therefore, this Court is required to consider whether the Appellant herein - the original Accused has been rightly convicted for the offence punishable Under Section 302 Indian Penal Code or is to be convicted for any other lesser offence, viz. Section 304 Part II Indian Penal Code.
4. Learned Counsel appearing on behalf of the Appellant - original Accused has vehemently submitted that as it is a case of a single blow, Section 302 Indian Penal Code shall not be attracted. It is submitted that even the so-called motive alleged for the incident is prior to four months of the incident in question and, therefore, as such, the prosecution has failed to establish and prove the motive for the Accused to kill the deceased.
4.1. It is submitted that, as such, the occurrence had taken place out of a sudden and grave provocation and therefore the offence would fall under Exception I to Section 300 Indian Penal Code and, therefore, the Appellant has to be convicted for the lesser offence than Section 302 Indian Penal Code.
4.2. Learned Counsel appearing on behalf of the Appellant - Accused has heavily relied upon the decisions of this Court in the cases of Kunhayippu v. State of Kerala (2000) 10 SCC 307 and Musumsha Hasanasha Musalman v. State of Maharashtra MANU/SC/0124/2000 : (2000) 3 SCC 557 in support of his submission that for causing a single stab injury, Section 302 Indian Penal Code shall not be attracted.
4.3. Making the above submissions and relying upon the above decisions of this Court, it is prayed to convert the conviction from Section 302 Indian Penal Cod........