Harsh Kumar, J.
1. The appeal has been filed against the impugned judgment and order dated 13.10.2006 passed by Additional Sessions Judge/Fast Track Court No. 2, Jalaun at Orai in S.T. No. 183 of 2005 (State Vs. Ali Bux), Case Crime No. 323 of 2006 under Section 304 IPC with S.T. No. 184 of 2005 (State Vs. Ali Bux) Case Crime No. 366 of 2005 under Section 4/25 Arms Act, Police Station- Konch, District- Orai, by which the sole accused-appellant has been convicted for the offences under Section 304(I) of IPC and Section 4/25 Arms Act and has been sentenced with life imprisonment and fine of Rs. 5,000/- under Section 304(I) IPC and with rigorous imprisonment for a period of one year and fine of Rs. 1,000/- under Section 4/25 Arms Act and in case of default in payment of fine, the appellant will undergo simple imprisonment for an additional period of six months.
2. The brief facts relating to the case are that, Smt. Nazma wife of Ajmeri lodged a FIR at 8.30 p.m. on 19.07.2005 at Police Station- Konch, District -Jalaun with the allegations that "today her husband came to his fruit shop in sabzi mandi along with first informant, her daughter and her brother Anwar and Bali; that at about 11.30 a.m. her brother-in-law (devar) Ali Bux arrived at the shop and asked her husband for payment of Rs. 20,000/- towards the balance sale consideration of his house, purchased from him by Ajmeri, following which there was a quarrel between Ali Bux and Ajmeri and Ali Bux hit on head of Ajmeri with banka, resulting in grievous injury to her husband and he was immediately taken to Government Hospital, CHC, Konch from where he was referred to Gwalior and on way to Gwalior, he succumbed to the injuries, that due to terror of Ali Bux the market closed down and no one is coming to stand as witness.
3. During investigation, the accused was arrested and on his pointing banka (the weapon of the crime in question) wa
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s recovered on 07.09.2005, during police custody remand. Upon recovery of banka, FIR was lodged against him by K.K. Bajpayee, SSI at Case Crime No. 366 of 2005 under Section 4/25 IPC. Upon investigation, in two criminal cases, chargesheets were submitted in Case Crime No. 323 of 2005 as well as 366 of 2005 and both the cases were committed to sessions and registered as S.T. No. 183 of 2005 & 184 of 2005 respectively. The learned Additional Sessions Judge framed charges against the accused under Section 304 IPC and Section 4/25 IPC to which the accused denied and demanded trial. The two sessions trial proceeded together.
4. The prosecution in order to prove the charges produced first informant Smt. Nazma, the wife of deceased as PW-1, Kumari Zeenat, the daughter of deceased as PW-2, Sri Anwar, the sala (brother-in-law) of deceased as PW-3, as eye witnesses to the incident and also produced some formal witnesses to prove the documentary evidence on the record viz., Dr. Surendra Prasad, the autopsy surgeon as PW-4, constable Hari Om Sharma as PW-5, constable Devendra Singh as PW-6, Sri K.K. Bajpayee, the investigating officer of Case Crime No. 323 of 2005 under Section 304 IPC as well as first informant of Case Crime No. 366 of 2005 under Section 4/25 Arms Act as PW-7, Abdul Samar, the investigating officer of Case Crime No. 366 of 2005 under Section 4/25 Arms Act as PW-8 and another formal witness constable Prajapati Goswami as PW-9.
5. Upon completion of prosecution evidence, the statement of accused was recorded under Section 313 Cr.P.C. who did not produce any defence evidence and after hearing the parties' counsel, the learned Trial Court passed the impugned judgment and order of conviction giving rise to the appeal.
6. We heard Sri Amrish Kumar, the learned Amicus Curiae for the sole accused-appellant and Sri Patanjali Mishra, learned AGA for the State.
7. The learned Amicus Curiae for the appellant contended that the appellant has been falsely implicated and wrongly convicted; that the appellant had no motive to cause death of his elder brother; that the PW-1 , PW-2 & PW-3 are partisan witnesses being wife, daughter and sala (brother-in-law) of deceased and their testimonies may not be relied; that the deceased had purchased the house of appellant for a consideration of Rs. 50,000/- and had paid only Rs. 30,000/- so the appellant had made several demands for payment of Rs. 20,000/- the balance sale consideration which was due on the deceased and he refused to pay the same; that the death of the deceased appears to have been caused by some unknown persons during darkness of night and since the assailant could not be identified, the appellant has been falsely implicated in order to get rid of dues of Rs. 20,000/- and usurp the house as well as money of appellant; that as her FIR single banka blow on the head of the deceased was given by appellant as has also been shown in the injury report Ext. A-17; that contrary to above the post mortem report of deceased shows 5 ante mortem injuries and so also the prosecution case may not be relied; that the recovery of banka (weapon of crime) from public place after six weeks of incident at the pointing of appellant, during police custody remand has been falsely planted and no such recovery was ever made at his pointing; that the forensic lab report Ext. A-33 states of only human blood on the banka in question without the description of blood group while in forensic lab report of clothes of deceased Ext. A-34 human blood of group-B is alleged to have been found on kurta and baniyaan of deceased as well as on the earth (cement plaster); that as per above report Ext. A-34 no blood was found on pajama (trousers) and underwear of the deceased which indicates that at the time of sustaining injuries either the deceased was sleeping or was lying on the cot, and had injuries been caused to him in sitting or standing position, as per FIR case, blood would also have fallen and found on his lower garments, pajama and underwear but no blood was found on his pajama and underwear; that the learned trial Court has acted wrongly in relying on the untruthful evidence of interested witnesses and holding the appellant guilty; that the appellant was not granted bail during trial and is in custody since 08.09.2005 i.e. since last more than 13 years; that the impugned judgment and order of conviction is liable to be set aside; that in any case the incident in question is not alleged to have been committed in pre-planned manner with intention to cause death of Ajmeri or cause fatal injuries to him, rather did take place during quarrel & scuffle following the demand of balance sale consideration by the appellant and denial by deceased and so if at all the case of appellant falls within the purview of Section 304(II) IPC and no offence under Section 304(I) IPC is made out against him; that the appellant is liable to be acquitted; that in the alternative his conviction under Section 304(I) IPC is liable to be altered under section 304(II) IPC; that the sentence imposed on him for alleged offence is highly excessive and beyond all proportions, is liable to be reduced to the period of imprisonment already undergone.
8. Per contra, learned AGA supported the impugned judgment and order and contended that FIR in this broad day light incident of murder was promptly lodged against the appellant; that the FIR is not encyclopedia containing every minute detail therein; that the fact of causing banka injury by appellant, over the head of the deceased is mentioned in FIR and details of each and every injuriy were not necessary to be mentioned in FIR; that when the injured was taken to CHC Konch, District- Jalaun, since he was unconscious, his pulse was not recordable, Blood Pressure was low at 90-60 etc., the Medical Officer noting down one grievous wound over scalp with bones fractured and brain matter coming out, considering the life threatening situation, immediately referred him to Gwalior without wasting time in completing his medical examination; that Medical Officer, PW-4 has proved the injury report Ext. A-17 as well as post mortem report Ext. A-2 of the deceased; that PW-1, PW-2 & PW-3 respectively the wife, daughter and sala (brother-in-law) of deceased were eye witnesses of the incident and have fully proved the prosecution case; that it is wrong to say that the appellant has been falsely implicated; that the wife and daughter of the deceased may have no reason to falsely implicate the appellant, leaving the real culprit; that undisputedly the appellant had sold his house to the deceased, so the allegations of his false implication in order to usurp his house are absolutely false and incorrect; that the appellant has been rightly convicted and sentenced by the impugned judgment.
9. Upon hearing the parties' counsel and perusal of record, paper book as well as the original record of Trial Court summoned in the appeal, we find that, according to the prosecution this is a broad day light incident of murder of Ajmeri by his brother. According to the FIR the incident did take place at 11.30 A.M. and Ajmeri died on way to medical college, Gwalior. The post mortem report of deceased shows following ante mortem injuries on his person:-
1. One incised wound 13cmx4cmxcavity deep, horizontally placed over parietal region of scalp 12cm from left eyebrow and 10cm from left ear, brain matter coming out through wound.
2. One incised wound 24cmx4cmxcavity deep horizontally placed over parietal region of scalp 3cm behind injury no. 1 starting from 1cm in front of injury no. 1 and extending 6cm above right ear.
3. One incised would 1cmx1cmxcavity deep vertically placed over temporo-occipital region of scalp 4cm behind left ear.
4. One incised wound 1cmx0.5cmx0.5cm over front part of left leg 6cm below patella and,
5. One incised wound 2cmx2cmx0.5cm over left buttock region.
10. Autopsy Surgeon, Dr. Surendra Prasad in his statement on oath as PW-4 has stated that on 19.07.2005, he was posted as emergency Medical Officer at CHC, Konch and at 12.15 P.M. medically examined 32 years old Ajmeri, who had sustained an injury over right temporo-parietal-occipital region of scalp with the fractured bones and brain matter coming out and since the general condition of patient was very serious, he was unconscious, his pulse was not recordable, blood pressure was low at 90-60 and it was life threatening situation, so without completing the medical examination he referred him to Gwalior. He has further stated that on 20.07.2005 being posted as Medical Officer at CHC, Konch he conducted the post mortem of the body of 32 years old Ajmeri at 11.30 A.M. Proving the post mortem report Ext. A2 having been prepared by him in his hand writing at the time of conducting post mortem of the body, he stated that death of deceased was caused as a result of haemorrhage and shock due to ante mortem injuries, about one day before the time of post mortem and the head injury mentioned at nos. 1, 2 & 3 were sufficient for causing of his death in ordinary course and that the above injuries may have been caused to him at about 11.30 AM on 19.07.2005.
11. There is medical evidence as well as the eye witness account of the incident through oral evidence of PW-1, PW-2 & PW-3, on record in support of the FIR version. It is pertinent to mention that PW-1 in her statement on oath has stated at page 18 of the paper book that the accused-appellant made 2-3 blows with banka on the head of her husband Ajmeri. She has also identified weapon of crime, banka in question before the Court. Eye witness, Anwar PW-3 has also stated in his cross-examination at page 27 of the paper book that "Ajmeri gave 2-3 blows of banka over the head of deceased". In view of the above evidence on record, we find no force in the argument advanced by the learned Amicus Curiae that prosecution has not explained each and every injury of the deceased. It is pertinent to mention that injury nos. 4 & 5 are not on vital part and their size, length and width shows that those may have been sustained by mere touch of the weapon of crime or otherwise during scuffle or due to falling on ground and may not be considered to have been caused by the banka blow. In view of consistent statements of prosecution witnesses duly corroborated by medical evidence on record, we find that prosecution has successfully proved the charges against appellant beyond reasonable doubt.
12. The argument advanced on behalf of the appellant that incident would have taken place at night, in view of the fact that semi-digested food was found in the stomach of deceased, has no force. The post mortem of the body of Ajmeri was conducted at 11:30 a.m. on 20.07.2005 by Dr. Surendra Prasad stating that he had died about one day before the incident due to injuries sustained around 11:30 a.m. on 19.07.2005. Above medical officer medically examined deceased at 12:15 p.m. at CHC Konch on 19.07.2005 and at page 37 of paper book in his cross-examination has stated that had the deceased not taken food between 6.00 A.M. in the morning to 12.00 in noon, the semi digested food would not be found in his abdomen. Merely on account of presence of semi-digested food in the stomach of deceased, it may not be inferred that incident in question would have taken place during night because it is specific case of prosecution that deceased had reached his fruit shop in the morning and it is usual practice of a shopkeeper to go to shop after taking breakfast which is fully corroborated by medical evidence. In absence of any evidence to the contrary it may not be inferred that deceased would have gone to shop, empty stomach and had not taken breakfast till the incident at 11.30 a.m. Or his death would have taken place in the night of 19.07.2005 due to injuries allegedly sustained by some unknown persons in the darkness of night.
13. The other argument advanced by the learned Amicus Curiae with regard to absence of blood on the trousers (pajama) and underwear of the deceased also indicates causing of banka injury during sleep or at the time when he was lying on the cot, also has no force because it is wrong to say that blood was found over trousers & underwear rather the forensic lab report Ext. A-34 states that the blood stains at trousers (pajama) and underwear were disintegrated. It is also noteworthy that in case of sustaining of head injury by a person in standing or sitting position, naturally most of the blood will fall on his kurta and baniyan (upper garments) etc. and only small stains will reach upto lower garments viz trousers (pajama) & underwear. There is nothing on record to suggest that the incident in question did not take place at the time, place or in the manner mentioned in the FIR or would have been committed by some unknown persons in darkness of night. It is also proved from the evidence on record that the weapon of the crime was recovered at the pointing of accused-appellant over which human blood has been found as per report of forensic lab.
14. In view of the discussions made above we are of the considered view that the prosecution has fully proved the guilt of accused-appellant beyond reasonable doubt and the learned Trial Court has not committed any mistake in holding him guilty for the offence of causing death of his brother.
15. Finding the accused-appellant guilty the trial court has convicted him for the offence under Ist part of Section 304 IPC. It is pertinent to mention that the incident in question is not alleged to have been committed by accused-appellant in pre-planned manner with an intention to cause death of his brother. As per FIR itself the accused-appellant was demanding his money Rs. 20,000/-, the balance sale consideration of the house sold by him to deceased undisputedly deceased had purchased his house for Rs. 50,000/- and had to pay Rs. 20,000/- towards balance sale consideration. Admittedly, at the time of incident accused-appellant came at the shop of deceased all alone and made demand of his money which was denied by deceased following which some quarrel/scuffle did take place between accused-appellant and deceased. In the circumstances upon denial of the payment by deceased a quarrel or scuffle may not be considered to be pre-planned. It is not the prosecution case the accused-appellant had come with banka along with some other person. The possibility of picking of some sharp edged large knife by accused-appellant from the fruit shop itself and hitting deceased by the same, in rage of anger may not be ruled out. The appellant may have given multiple banka/large knife blows on the head of deceased without any intention to cause death of his elder brother though with full knowledge that the injuries caused by him may result in his death. According to the post mortem report due to these head injuries the skull of deceased was broken into several parts. In the circumstances we find that the offence of appellant is fully covered under IInd part of Section 304 IPC and in absence of any evidence of committal of offence with intention to cause his death in pre-planned manner, his conviction under Section 304(I) is wrong and incorrect and is liable to be set aside and altered from Section 304(I) to Section 304(II) of IPC.
16. In view of the discussions made above, we have come to the conclusion that the impugned judgment and order holding the appellant guilty is correct but his conviction for the offence under Section 304(I) IPC is incorrect. The impugned judgment and order of conviction under Section 304(I) IPC is required to be set aside and conviction is liable to be altered into Section 304(II) IPC.
17. The appeal is partly dismissed. The impugned judgement holding the accused-appellant guilty as well as his conviction under Section 4/25 Arms Act, in S.T. No. 184 of 2005 and sentence of rigorous imprisonment for a period of one year and fine of Rs. 1,000/- is affirmed with modification that in case of default in payment of fine he will undergo simple imprisonment for an additional period reduced from six months to one month.
18. The appeal is partly allowed and the impugned judgement and order of conviction under Section 304(I) IPC in S.T. No. 183 of 2005 is set aside and altered to a conviction for the offence under Section 304(II) IPC. The accused-appellant Ali Bux is sentenced with rigorous imprisonment for a period of 12 years and fine of Rs. 5,000/- and in case of default in payment of fine, with simple imprisonment for an additional period of six months. Both the sentences will run concurrently.
19. The appellant is in custody he will be released forthwith on completion of total period of imprisonment for the two offences as well as payment of fine or completion of imprisonment in lieu of default in payment of fine.
20. Material Exhibits if any, will be disposed of in accordance with rules.
21. We appreciate the valuable assistance rendered by learned Amicus Curiae Sri Amrish Kumar, Advocate.
22. Lower Court record be sent back to the court below forthwith along with copy of this judgment for necessary action and the court below which will correctly calculate the period undergone by accused-appellant and ascertain his release on the completion of sentence as above, unless wanted in some other case.