The central legal point established in the judgment is the application of Exception 4 of Section 300 IPC to determine 'culpable homicide not amounting to murder' under Section 304 Part I of IPC.

JUDGMENT :

PRITINKER DIWAKER, J.

1. This appeal arises out of impugned judgment and order dated 9.12.2009 passed by Additional Sessions Judge, Court No. 2, Bareilly in Sessions Trial No. 548 of 2007 and 549 of 2007 (State Vs. Devki Nandan and another) and (State Vs. Sunder @ Shyamsunder), convicting accused-appellant, Deoki Nandan under Sections 302/34 of IPC and accused-appellant, Suder @ Shyamsunder under Sections 302 of IPC and 25 of the Arms Act and sentencing them to undergo life imprisonment and a fine of Rs. 2,000/-, in default thereof, six months additional sentence; and to undergo life imprisonment and further to undergo two years rigorous imprisonment, with a fine of Rs. 2000/-, in default thereof, six months additional sentence respectively, with a direction that all the sentences to run concurrently.

2. As per prosecution case, the appellants are real brothers whereas deceased Sompal was their neighbour. It is alleged that on 6.10.2006 at about 7:30 PM, when deceased Sompal had gone to take country made Cheroots (Beedi) in the shop of Shanker Lal, accused-appellants reached there, abused him and caused one firearm injury, resulting his instantaneous death. Incident has been witnessed by Ramman Lal, PW-1 and Shanker Lal, PW-2. At 9:05 pm, on the basis of written report Ex. Ka-1, FIR Ex. Ka-21 was registered against the appellants under Section 302/34 of IPC. From the possession of accused-appellant no. 2, Suder @ Shyam Sunder, a 12 bore country made pistol was seized on 10.11.2006 vide Ex. Ka17. However, there is no ballistic expert report in respect of the weapon.

3. Inquest on dead body of the deceased was conducted on 07.10.2006 vide Ex. Ka-11 and the body was sent for postmortem which was conducted on the same day by Dr. V.K. Yadav (PW-6) vide Ex. Ka-7.

4. As per postmortem report, following injury was noticed on the body of the deceased:

1. A fire arm wound of entering 3.5 x 3 cm chest cavity deep on sternum 2 cm lateral to Rt. nipple. Margin inverted blackening and tattooing present around the wound. On opening of wound underneath heart and both lungs lacerated. Sternum fractured. A plastic piece and metallic small pallets excavated from chest cavity and heart.

5. While framing charge, trial Judge has framed the charge against the accused no. 1, Deoki Nandan under Sections 302/34 of IPC whereas against accused no. 2, Suder @ Shyam Sunder, charge was framed under Section 302 of IPC.

6. So as to hold accused persons guilty, prosecution has examined seven witnesses. Statement of accused persons were also recorded under Section 313 of Cr.P.C in which, they pleaded their innocence and false implication.

7. By the impugned judgment, the trial Judge has convicted the accused-appellant no. 1, Deoki Nandan under Sections 302/34 of IPC and accused-appellant no. 2, Suder @ Shyam Sunder under Sections 302 of IPC and 25 of the Arms Act and sentenced them as mentioned in paragraph no. 1 of this judgment. Hence this appeal.

8. Learned counsel for the appellants submits:

(i) that there was no motive on the part of accused-appellants to commit the murder.

(ii) that no previous enmity or any sort of quarrel at the place of incident, prior to the occurrence, has been proved by the prosecution.

The cause of death of deceased was due to shock and hemorrhage as a result of antemortem firearm injury.

(iii) that there was no sufficient source of light at the place of occurrence.

(iv) that at the time of occurrence, Shanker Lal, PW-2, was inside his house and, therefore, question of his seeing the incident does not arise.

(v) Ramman Lal, PW-1 being brother of the deceased is an interested witness and he has falsely implicated the appellants.

(vi) that there was no premeditation on the part of appellants to commit the incident. The incident occurred in a sudden fight in the heat of passion upon a sudden quarrel and, therefore, at best, appellants can be convicted under Section 304 Part II of IPC.

(vii) that appellant no. 2, Suder @ Shyam Sunder is in j