JUDGMENT M.C. Jain, J.
1. Ninhku and Jus two sons Ram Nayan 2nd Chhotak were tried in Sessions Trial No. 152 of 1980 before III Additional Sessions Judge, Azamgarh. The charge against Ram Nayan was of Section 302 I.P.C. whereas the other two were charged under Section 302 IPC with the aid of Section 34 I.P.C. for the murder of one Ambika. Out of them, Ninhku and Chhotak were acquitted but Ram Nayan came to be convicted under Section 302 I.P.C. with sentence of life imprisonment. He has preferred this appeal.
2. The relevant facts are these: The incident took place on 18.9.1979 a little before sunset in the field of the complainant Chhangar Yadav in village Bhuidharpur. P.S. Kandliarapur, District Azamgarh. The F.I.R. was lodged, on 19.9.1979-at 7.35 A.M. by Chhangur Yadav PW 1-eyewitness (brother of the deceased). The victim was then alive and actually died on 19.9.1979 at 7 P.M. in District Hospital, Azamgarh because of the injury sustained in this incident. Both the parties resided in the village aforesaid, owning adjoining agricultural plots with a common mend. There was a dispute between the two groups regarding demarcation of the boundary between their plots. There was a complaint from the side of Chhangur that a portion of his field had been included by Nanhku in his field, extending the common mend into the field of Chhangur. Actual measurements had been taken and demarcation of the boundary was made by the Lekhpal sometime earlier, finding that some land belonging to the field of Chhangur had been included in the field of Nanhku. After such demarcation, Chhangur had grown the crops of Bajra, Jonhri and Arhar in his field. On the day of the incident, a little before sunset Nanhku and Chhotak were cutting the said crop of Bajra from the portion which was given to Chhangur at the time of the demarcatio of the boundary. The deceased Ambika went there and asked them not to do so. The said two accused, however, did not desist and abused Ambika. In the meantime, Prasad, Ram Boojh PW 2 and Baljore Prdhan PW 3 also reached there. They intervened and asked the accused persons not to pick up quarrel. Chhangur had also reached there. In the meantime, Ram Nayan accused came from his house armed with Gandasa. Ninhku exhorted him to kill Ambika whereupon Ram Nayan struck Gandasa blow on the head of Ambika causing a very serious injury on his head. Receiving the said fatal injury, Ambika fell down unconscious. Blood was oozing out of the wound. The accused persons went away hurling abuses. The other persons of the village also reached there. Ambika was placed on a cot and brought to the District Hospital, Azamgarh by Chhangur and others.
3. The F.I.R. was lodged by Chhangur PW I-brother of the deceased, getting it scribed by Satya Narain after admitting Ambika in District Hospital, Azamgarh. The chik report was prepared by Bansh Bahadur Singh PW 6 and initially a case was registered under Section 307 I.P.C. which was subsequently converted under Section 302 I.P.C.
4. The victim was examined by Dr S.N. Sinha PW 4 on 19.9.1979 at 1.10 A.M. The following injury was found on his person
1. Incised wound 9 cm x .5 cm x bone deep on right side head, 9 cm above the left ear. Margins clean cut and surrounding area ecchymosed. Clotted blood present.
5. It was fresh and kept under observation. It was caused with force by sharp cutting weapon.
6. Consequent upon his death in District Hospital, Azamgarh because of he above injury on 19.9.1979 at 7 P.M., the post mortem over the dead body of the deceased was conducted by Dr G.M. Lal PW 5 on 20.9.1979 at 5 P.M. after the dead body was sent under sealed cover by Sudhakar Tiwari PW 10 (S.O. of P.S. Kotwali) subsequent to holding inquest proceedings. He was aged about 50 years. An ante-mortem injury-stitched incised wound 9 cm x .5 cm x bone deep on right side head, 9 cm above the left ear was found. Internal examination revealed fracture of skull under Injury no. 1. The death had occurred due to coma owing to the ante-mortem injury.
7. The investigation was started by S.I. Rana Bhanu Pratap Singh PW 7 which was taken over by the Station Incharge Pashupati Nath Pandey PW 8 on 22.9.1979 and was concluded by S.I. Rama Shankar Singh PW 9.
8. The defence was of denial and false implication due to enmity,
9. The prosecution in all examined ten witnesses. Out of them, Chhangur PW 1, Ram Boojh PW 2 and Baljore PW 3 were eyewitnesses. Rest of the evidence related to the medical and investigation aspects, reference whereof has come above.
10. On scrutiny of the evidence, the trial judge convicted the main assailant Ram Nayan but acquitted the remaining two accused. It is in this way that the matter has come up in appeal before this Court at the behest of Ram Nayan- convicted accused.
11. We have heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri K.P. Pathak for the accused appellant and Sri Amar Jeet Singh, learned A.G.A. from the side of the State.
12. The first submission from the side of the accused appellant is that the F.I.R. was made with inordinate delay. We do not find any merit in this submission. The reason is that the delay in lodging of the F.I.R. has sufficiently been explained. The victim had not died at the spot. Rather he was alive after receiving the injury in this incident and was taken to District Hospital, Azamgarh for treatment where he was medically examined by Dr S.N. Sinha PW 4 on 19.9.1979 at 1.10 A.M. Indeed, the medical treatment of the victim was to be accorded top priority to save his life, if possible, instead of giving preference to the lodging of the F.I.R. He was admitted in District Hospital, Azamgarh by the informant Chhangur PW 1. It has been explained by Chhangur PW 1 in his testimony before the court that after the incident the victim Ambika was taken to District Hospital keeping on a cot on foot, reaching the hospital at about midnight. An hour before sunrise he started for the police station and the report was lodged at P.S. Kandharapur on 19.9.1979 at 7.35 A.M. So, there being proper explanation for late lodging of the F.I.R., the argument raised by the learned Counsel for the accused appellant is rejected.
13. It has next been argued that Chhangur PW 1 and Baljore PW 3 were not reliable. The argument was sought to be supported on the premise that there was delay in lodging of the F.I.R. as also in the initial medical examination of the victim. According to the learned Counsel for the accused appellant, ample time was available for the prosecution for deliberation and concoction to support the case through the witnesses who could be trusted. It has also been urged to criticize the testimony of the eyewitnesses that they were not wholly reliable in that two of the accused, namely, Ninhku and Chhotak were acquitted by the trial court despite the testimony of the eyewitnesses against them too. As we stated earlier, the delay in lodging of the-F.I.R. was satisfactorily explained. The taking of the victim to the District Hospital on foot on a cot was likely to consume corresponding time. His relatives would have been deeply anxious to provide medical aid to the victim at the earliest without loss of time. The victim could be produced before the Doctor in District Hospital for medical examination at 1.10 A.M. and it should be taken that it was not within the means of his relatives to produce, him in District Hospital for medical treatment earlier thereto. To say in other words, there could not be any deliberate delay on the part of the prosecution in that regard. The victim actually died in District Hospital on 19.9.1979 at 7 P.M. It was natural that the informant Chhangur PW 1 (brother of the deceased) stayed in District Hospital for a few hours to ensure the treatment of his injured brother and then proceeded to the police station for lodging the F.I.R. which was actually lodged on 19.9.1979 at 7.35 A.M. The examination of the injured in hospital on 19.9.1979 at 1.10 A.M. and lodging of the F.I.R. at the police station cannot provide a foot-board to the defence to criticize the reliability of the eyewitnesses.
14. Coming to the second limb of the argument concerning the reliability of the eyewitnesses on the premise that two accused were acquitted despite their testimony, suffice it to say that the principle 'falsus in unofclsus' in omnibus is not applicable in India. In each case, the court has to appraise the evidence to see to what extent it is worthy of acceptance. On over all consideration of the testimony of the eyewitnesses, the court did not find it safe to convict the other two accused who had only played the role of exhortation and were not the main assailants. But the testimony of Chhangur PW I complainant and Baljore PW 3 was beyond suspicion as against the accused appellant Ram Nayan who had struck Gandasa blow on the victim.
15. Learned Counsel for the accused appellant argued that Baljore PW 3 was a chance witness; But it is worthy of notice that he gave plausible explanation for his presence at the spot that he was going from his house to his pumping set at his field. When he reached near the disputed plots of the parties, he heard some quarrel and saw the accused to be cutting the crop and Ambika (deceased) who objected to it. He empathetically stated that Ram Nayan gave a Gandasa blow on the head of Ambika. He was the Pradhan of the village and had no enmity with the accused. The defence could not prove any enmity against him. So, the testimony of Baljore PW 3 could not be subjected to criticism on the ground of being a chance witness.
16. We should point out that the trial court relied on the testimony of the complainant Chhangur PW 1 and Baljore PW 3 in convicting the accused appellant Ram Nayan. The testimony of the Other eyewitness Ram Boojh PW 2 was kept aside by way of abundant precaution as he was not named as an eyewitness in the F.I.R. It flowed from the testimony of Chhangur PW 1 and Ram Boojh PW 2 that there was a dispute between the parties in respect of measurement of plots. The factum of such dispute ;)ver intervening mend of the fields of the two sides was admitted to the defence. Chhangur PW 1 stated that plot of accused Ninhku and his plot were adjoining having a common mend. He testified that the accused Ninhku claimed that this common mend was not at its proper place as a portion of his plot was included in his (Chhangur's) plot. He also stated that the said two plots were got measured by Lekhpal who had got a new mend made between the two plots. The Lekhpal had found that a portion of Ins (Chhangur's) plot was included in the plot of Ninhku accused and by erecting the new mead, the said portion was given in his (Chhangur's) plot. In this plot the crops of Bajra, Arhar and maize were there at the time the incident. Chhangur PW 1 also testified that later on Ninhku resiled from the settlement and on the day of the incident, he (Ninhku) and his son Chhotak were cutting the crop of the said portion which was included in his (Chhangur's) plot at the lime of demarcation of boundary. When Ambika resented, the said two persons did not desist. They abused Ambika and in the meantime Ram Nayan armed with a Gandasa readied there and wielded a blow on the head of Ambika. This is how the incident occurred. The boundary dispute was there according to the defence version also. Baljore PW 3 supported the prosecution case on all the material points including the vital question that it was the accused appellant Ram Nayan who had struck Gandasa blow on the head of Ambika. He clarified that Ram Nayan was at a distance of 8-10 paces to the south from the place of occurrence when he first saw him. According to Baljore PW 3 also Ninhku and Chhotak were present at the field cutting the crop and the quarrel started when Ambika resented. It. was immediately thereafter that Rain Nayan reached there with a Gandasa and assaulted Ambika.
17. In view of the above discussion, we cannot locate any merit in the submission of learned Counsel for the accused appellant assailing the testimony of Chhangur PW I and Baljore PW 3 as against the accused appellant Ram Nayan. We are in complete agreement with the trial judge that their testimony was perfectly believable that it was Ram Nayan who struck a Ganddsa blow on the head of Ambika which resulted in his death.
18. The learned Counsel for the accused appellant lastly argued in the alternative that the offence committed by him could not travel beyond Part II of Section 304 IPC. On consideration, we find sufficient force in the submission. It would be recalled that a single Gandasa blow was struck by the accused appellant Ram Nayan on the head of Ambika. The blow was not repeated. Admittedly, the parties owned adjoining fields and there was boundary dispute between them, Each side was believing and accusing the other of encroachment. The incident was not pre-planned. It occurred all of a sudden when Ninhku and Chhotak started harvesting the crop from certain portion and the deceased Ambika questioned and resented it. A quarrel ensued. Ram Nayan accused appellant (son of Ninhku) suddenly appeared with a Gandasa and struck a blow on the head of Ambika, getting hot under the collar. It is ground reality that villagers are very much attached to every inch of their agricultural land which is the source of their livelihood from generation to generation. Learned Counsel for the accused appellant has rightly urged that the happening is not traceable to any trait, tendency or propensity of criminality on the part of the accused appellant who, in the wake of sudden quarrel, struck single Gandasa blow on the head of Ambika. He shall be imputed the knowledge that his act was likely to cause death, though without any intention to cause death or to cause such bodily injury as was likely to cause death.
19. In view of the above discussion, we partly allow the appeal by converting the conviction of the accused appellant Ram Nayan from Section 302 IPC to Part II of Section 304 IPC. The ends of justice would be met by awarding him five years' rigorous imprisonment and to a fine of Rs. 10,000/- or to undergo two years further rigorous imprisonment in default of payment of the same. The amount of fine, if realized, shall be paid as compensation to the wife of the deceased Ambika, if she alive. In her absence, the compensation shall be paid to the deceased's other nearest legal heir as per Hindu Succession Act, 1956.
20. The final order is as under:
21. The appeal succeeds in pan. The conviction of the accused appellant Ram Nayan is converted from Section 302 IPC to Part II of Section 304 IPC'. The sentence of life imprisonment awarded to him is also reduced to sentence of five years' rigorous imprisonment with a fine of Rs. 10,000/-. In default of payment of fine, he shall undergo two years' further rigorous imprisonment. The amount of fine, if realized, shall be paid as compensation to the wife of the deceased Ambika. it she is alive. If she is not there, this amount shall he given to his other nearest legal heir as per the provisions contained in Hindu Succession Act, 1956.
22. The accused appellant Ram Nayan is on bail. The Chief Judicial Magistrate, Azamgarh shall cause him to be arrested and lodged him in jail to serve out the sentence. He shall report compliance within two months. The record be sent to the Court below with a copy of this order immediately.