Important Point
Where accused during course of sudden quarrel inflicted injuries on his brother from blunt side of spade in a fit of passion & victim died, offence would fall under Section 304 Part I & not under Section 302 IPC.

Judgment

Y.R. Tripathi, J.— This criminal appeal is directed against the conviction and sentence recorded by Sri J.N. Bansal, the then Sessions Judge Lalitpur in Sessions Trial No. 101 of 1980, State v. Bhai Khan, relating to P.S. Talbehat, District Lalitpur, whereby having convicted the appellant Bhai Khan under Section 302 IPC has sen-tenced him to imprisonment for life.

2. This prosecution case, in short, is that the appellant is the real younger brother of the deceased Shamsher Khan. At the time of occurrence, both the brothers were living jointly and they owned a bullock. Shamsher Khan wanted to go out after selling that bullock to which the appellant was not agreeable. It is said that around 12 noon on 17.8 1980, an altercation look place between the two brothers inside their inner courtyard over the disposal of the bullock. Shamsher Khan, as usual, insisted on selling the bullock, whereupon the appellant, enraged over his instance, gave him several blows from the blunt portion of a spade saying that he was very often insisting on selling the bullock and that he would now finish him. On sustaining injuries Shamsher Khan fell down on the ground. Iddu Khan P.W.1. Hajju P.W.3 and some others, who, on hearing the altercation between the two brothers, had reached the scene of occurrence, witnessed the incident. The appellant after inflicting injuries to Shamsher Khan went away towards the well in the village. Asghar Ali, Harnam Singh and a constable accompanied by some others gave a chase to the appellant and apprehended him with the spade, the weapon used in assault. They brought the appellant at his house and tied him with the help of a rope. Iddu Khan, P.W.1 with injured Shamsher Khan set out for the police station on a bullock-cart but hardly had he settled a distance of three furlongs and had reached out of his village, Shamsher Khan died. He, therefore, brought the dead body of Shamsher Khan back to the place of occurrence and placed it there. He then got a written report prepared on this dictation by one Govind Singh, Pradhan of the village and took it to the police station Talbehat where he made over that written report to Head Constable Shiv Singh P.W. 4, who on the basis of that report drew a chik F.I.R and registered a case at 1-30 p.m on 17.8.1980. Sub Inspector Surya Prasad Agnihotri P.W. 5, who at that time was posted as Station Officer P.S. Talbehat, swung into action. He proceeded to the spot, held inquest on the dead body of the victim and after completing all other necessary formalities dispatched the dead body for its post-mortem examination which was conducted on 18.8.1980 at 12 noon by Dr. Har Narain, P.W. 2, then posted as Medical Officer in the District Hospital, Lalitpur.

3. According to Dr. Har Narain, the deceased was of average built and about 36 years old. He had died about a day before. He found both the eyes of the deceased partially closed, oozed clotted blood on both ears and nostrils and food materials coming out through mouth and nostrils. He also noticed the following ante-morterm injuries on the person of the deceased:

1. Lacerated wound 4 cms x 1 cm x bone deep on right side head, 7 cms above from left ear and left eyebrow, margins lacerated.

2. Lacerated wound 3 cms x 2 cms x bone deep; just front of left ear oblique.

3. Lacerated wound 3 cms x 1 cms x bone deep, left side head just below and above left ear.

4. Lacerated wound 3 cms x 1 cm x bone deep on back of right ear on mastoid process.

5. Lacerated wound 2 cms x 1 cm x bone deep on front of right ear. Margins lacerated clotted blood present.

According to Dr. Har Narain, the deceased had died due to head injuries sustained by him.

4. The police of P.S. Talbehat after due investigation presented charge-sheet under Section 302 I.P.C. against the appellant which culminated into his trial. The case of the appellant was that of denial and false implication.

5. The prosecution during the course of trial examined Iddu Khan as P.W.