JUDGMENT A.S. Tripathi, J.
1. This appeal is filed against the judgment and order dated 30-7-1979 passed by the then Sessions Judge, Mirzapur where by the appellant was convicted Under Section 302 I.P.C. and was sentenced to imprisonment for life.
2. The facts of the case are that the appellant Madho stood charged Under Section 302 I.P.C. for having committed the murder of his own uncle Shiv Nath Pandey at about 9 p.m. on 23-4-77 in the Village Suraha, Police Station Adalhat, District Mirzapur.
3. The following pedigree admitted between the parties would help in appreciating the origin and genesis of the occurrence.
3. A. According to the prosecution case on 23-4-77 Shiv Nath Pandey along with Shankar and the brother of the appellant Sadho had plucked some mango fruits from one of the mango trees; they had brought the same to their house and distributed according to the share. It was alleged that the fruits of the share of the appellant were sent to his house. The appellant/appeared at the door of the deceased at about 6 p.m. the same day and asked Shiv Nath that as to why less share was given to him. Shiv Nath (deceased) attempted to pacify him and told him that he may pluck more fruits the next day if his share was less. The appellant was not satisfied. The appellant then threatened that he will cut all the three mango trees next day. This threat was conveyed by Jagveer Ahir of the same village to the deceased. The deceased then told Jagveer that the appellant may pluck as much fruits as he liked but he should not cut the trees.
4. At about 9 p.m. in the same evening Appellant came to the door of the deceased and started abusing him. Sadho the brother of the appellant was also present. He was also abused for having given less share to, the appellant who was also living separately from his brother Madho. Deceased Shiv Nath objected to the abuses hurled. There upon the appellant got enraged and rushed towards his house, brought out a spear and struck a blow on the chest of the deceased. The blade of the spear pierced in the chest of the deceased; thereupon the appellant after kicking the deceased forcibly snatched out the blade of the spear and went away. The deceased after getting the blow moved few steps towards his door and fell down unconscious. He died shortly thereafter on the spot.
5. Smt. Shakuntala wife of the deceased came out of the house alone and went near the body of Shiv Nath and she found him dead. Then she got a written report scribed by one Namwar Up-Pradhan of village and went to the police station, Adalhat four miles from the place of occurrence and lodged the report at 12.40 a.m. in the same night. The written report is Ext. Ka 1. On the basis of report a case was registered Under Section 302 I.P.C. The chik F.I.R. was prepared.
6. The investigation was taken up by Section I. RajDeo Singh. He reached the spot next morning and found the dead body of Shiv Nath lying on the door. The inquest report was prepared on the spot. The dead body was sealed and sent for postmortem through constables Gupteshwar Rai and Bansh Narain Misra. The Investigating Officer recorded the statement of the witnesses Smt. Shakuntala, Girja, and Shankar etc. He then prepared site plan Ext. Ka.11. The investigating Officer had taken in possession, the blood stained earth and plain earth and kept in separate sealed containers and prepared memo Ext. Ka. 12.
7. The appellant accused had absconded and could not be traced.
8. The post-mortem was conducted on 24-4-77 at about 4 p.m. by Dr. P.L. Pandey Medical Officer, Primary Health Centre, Chunar. The following antemortem injuries: were found on his person:
1. Punctured wound (Margin clean out) 3/1/ 2 Cm. x 1 cm x cavity deep on front of left side chest 7 cm. below to left nipple.
In the internal examination the Doctor has noted as follows:--
1. Scalp. Skull bones (Vertex) N.A.D.
2. Membranes: N.A.D.
3. Brain: N.A.D.
4. Base of Skull: N.A.D.
5. Vertebrae: N.A.D.
6. Spinal Cord: Not opened.
7. Additional remarks:--
II -- TOPRAX
(a) Walls, ribs, cartilages: Underneath the A.M. Injury No. (1) ribs were cut.
(b) Pleura: Torn underneath to A.M. Injury No. (1)
(c) Larynx, trachea and bronchi: N.A.D.
(d) Right lung: N.A.D.
(e) Left lung: Punctured underneath to A.M. Injury No. 1
(f) Pericardium: Torn
(g) Heart with wright: Punctured.
(h) Large Vessel: N.A.D.
(i) Additional remarks: 1-1/2 lbs fluid blood present in gastric cavity.
III -- ABDOMEN
1. Walls N.A.D.
2. Peritoenum: N.A.D.
3. Cavity: N.A.D.
4. Buccal Cavity, teeth, tongue and pharynx: N.A.D.
5. Oesphagus: N.A.D.
6. Stomach and its contents: Empty.
III -- ABDOMEN (Concluded)
7. Small intestine and its contents: Empty.
8. Large intestine and its contents: loaded with faceal matter.
9. Liver (with weight) and gall bladder: NAD. cut 1 Kg.
10. Pancrease:
11. Spleen with weight: N.A.D. cut 100 gm.
12. Kidneys with weight: N.A.D. cut 200 gm.
13. Bladder: Empty
14. Organs of generation: N.A.D.
Later on the appellant surrendered in Court.
On completion of the investigation, the Investigating Officer has submitted charge sheet on 26-6-77.
9. The appellant had pleaded not guilty. The prosecution in support of its case examined (P.W. 1) Smt. Shakuntala widow of the deceased and, (P.W.2) Girja who are eye witnesses. (P.W.3) Dr. P.L. Pandey have conducted the post-mortem examination and proved the post-mortem report, (P.W.4) Constable Vijai Narain Singh had taken the dead body to the mortuary for post-mortem, (P.W.5) Kamla Shankar Yadav had prepared the chik F.I.R., Ext. Ka-3 and made entry in the general diary Ext. Ka-4, and (P.W.6) RajDeo Rai is the Investigating Officer gave out the details of the investigation.
10. The appellant had denied the charges and stated that he was falsely implicated on account of enmity.
11. The learned Sessions Judge Mirzapur after assessing the evidence on record found the appellant guilty Under Section 302 I.P.C. and sentenced him to imprisonment for life. Against this judgment and order, the present appeal has been filed.
12. We have heard learned Counsel for the parties and examined the entire record.
13. The relationship between the appellant and the deceased is admitted. The time and place of occurrance is also not disputed. It has come in the evidence that there was a dispute regarding three mango trees which was not partitioned in the family. P.W.1 Smt. Shakuntala widow of the deceased who was present at the time of the occurrence having come out from the house when her husband and nephew appellant were quarrelling. She stated on oath that the appellant started abusing her husband where upon her husband objected. The appellant got enraged and went inside his house. He took out a spear. Sadho the brother of the deceased was also present there. Sadho seeing the appellant coming out with the spear managed to escape. Her husband remained there and the appellant gave a spear blow on his chest which pierced. Then the appellant kicked out him to take the blade of spear and then he ran away; she rushed towards her husband. Shiv Nath (deceased) could walk only few steps towards his house and fell down unconscious near the Neem tree. He died within few minutes. Then the villagers assembled. She got a written report scribed by Manwar the Up-Pradhan of village and went to the police station in the same night and lodged the report.
14. This lady was cross-examined at length but nothing has come out to doubt her testimony. She was natural witness on the spot. She was present at her house. The house of the appellant and the deceased were adjacent part of the same construction and separated by only one temporary partition. There is absolutely nothing to doubt the presence or the version given by Smt. Shakuntala, the wife of the deceased.
15. P.W. 2 Girja is also of the same family related as nephew of the deceased. The appellant is his first cousin. This witness Girja has also fully supported the prosecution case when the quarrel started. She also corroborated the fact that the appellant got enraged took out a spear from the house and struck in the chest of Shiv Nath (deceased) who died just after few steps walking towards his house. The appellant kicked him and took out the spear from his chest and ran away from the spot.
16. There is also no reason to doubt the testimony of this witness. He was also present as he was living in the part of the same house which came in his share. The time was 9 p.m. His presence could not be doubted. He was also cross-examined at length but there is nothing to doubt it.
17. These two witnesses have fully described the cause of the dispute regarding the distribution of mango fruits plucked that day. The appellant was complaining that his share was less. He threatened to cut the trees. Deceased Shiv Nath tried to pacify him along with Sadho the real brother of the appellant. But the appellant was not pacified and he was also angry against his brother Sadho. The appellant was completely enraged and took out the spear where upon Sadho slipped from there but Shiv Nath continued pacifying him; in the mean time he struck the spear on the chest of the Shiv Nath who died thereafter. These facts are further corroborated from the post-mortem examination regarding the nature of the injury and time of the occurrence. The doctor had found a punctured wound in the chest which proved fatal.
18. The investigating Officer had also found the blood stains from the spot.
19. The doctor had also given the probable time of death which tallied with the first information report.
20. The F.I.R. was promptly lodged at 12.40 hours in the same night. The wife of the deceased went to the police station alongwith two persons of the village after getting the report scribed and lodged at the police station giving the details of the occurrence.
21. The learned Sessions Judge had rightly accepted the testimony of two eye witnesses. He did not find any flaw in the investigation. The ocular testimony was fully supported by the Medical evidence as found in the post-mortem examination by the doctor. The learned Sessions Judge has discussed these points in detail and came to the correct conclusion that it was proved beyond all reasonable doubt that the appellant had given the spear blow to Shiv Nath who died on the spot within few minutes.
22. It is noteworthy that the occurrence had taken place at 9 p.m. The wife of the deceased got disturbed. The villagers assembled and Up-Pradhan of village Namwar scribed the F.I.R. The lady went to the police station on the same night covering four miles and lodged the report. The suggestion of the defence was that the report was lodged in the morning has been repelled by the witnesses Smt. Shakuntala and Girja and also in view of the statement of the Investigating Officer that he reached in the early morning and prepared the inquest report etc.
23. Some suggestions were made to Smt. Shakuntala about her first marriage but that was not of such nature to doubt her presence. It has not been disputed that she is not the wife of the deceased Shiv Nath rather it was also suggested that she was the second wife of Shiv Nath.
24. Learned Sessions Judge considered all these facts and rightly held that the testimony of Smt. Shakuntala P.W.I and Girja P.W.2 are wholly reliable to establish the guilt of the appellant.
25. We have given a careful thought to the facts and circumstances of the case and examined the testimony of two eye witnesses and we fully agree with the findings of the learned Sessions Judge that the witnesses are reliable and their testimony is corroborated by the medical evidence. The guilt of the appellant for having given a spear blow on the chest of Shiv Nath (deceased) is fully established on record.
26. However, it was pointed out that the spear blow was given by the appellant when he was completely enraged on account of the quarrel regarding distribution of mango fruits plucked that day by the deceased and his brother and the brother of the appellant Sadho. Learned Counsel for the appellant argued that the appellant had no intention to commit the murder of Shiv Nath. The spear blow was given in the quarrel and the appellant was completely enraged losing his mental balance. It was further argued that only one spear blow was given and as such the appellant could not be said to have intended to commit the murder of Shiv Nath. In these circumstances, it could be found that the appellant had only intention of causing such bodily injury which was likely to cause death. In this way, it was argued that the case of the appellant may fall under the provision of Section 304(I) I.P.C.
27. We have considered the facts and circumstances of the case and we agree with the lines of the argument advanced by the learned Counsel for the appellant that the appellant had no intention to commit the murder. He had intended only to cause such bodily injury as was likely to cause death. In the absence of intention to commit the murder, it was a case of culpable homicide not amounting to murder and we find the appellant is liable to be convicted Under Section 304(I) of the I.P.C.
28. Accordingly, we allow the appeal in part. The conviction of the appellant Under Section 302 I.P.C. and sentencing him to imprisonment for life is set aside. Instead the appellant is convicted Under Section 304(I) I.P.C. and is sentenced to R.I. for seven years.
29. The appellant is on bail. He shall surrender to his bail bonds and shall be taken into custody to serve out the sentence awarded. After the appellant surrenders his bail bonds and surety bonds shall stand discharged.