The prosecution must prove the case beyond reasonable doubt, and in the absence of conclusive evidence, the benefit of doubt must be given to the accused.

JUDGMENT :

Suneet Kumar, J.

1. Heard Sri Sunil Singh and Sri Vivek Singh, learned counsels for the appellants and Sri Vikas Goswami, learned counsel appearing for the State and perused the lower court record with the assistance of the respective counsels.

2. The instant appeal has been filed against the judgment and order dated 3 January 2018 passed by the Additional Sessions Judge, Court No. 4, Kanpur Dehat, whereby, appellant has been convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs.20,000/-. On default of deposition of fine, appellant shall serve additional six months rigorous imprisonment.

3. The incident is of 6.3.2016, at about 9:00 p.m. and F.I.R. came to be lodged after the death of the deceased on 10.3.2016, at about 12:30 p.m. The informant/complainant (P.W.-1) is the brother of the deceased. It is alleged that his younger brother Ajay (deceased), aged about 20 years, on the day of terhavi ceremony, on 5.3.2016 all brothers had assembled for the ceremony. His elder brother Sanjay with the intention to kill the deceased assaulted him with danda in front of the house at the municipal tap; deceased incurred severe head injury on the head, face and back; deceased was carried to the hospital at 2:00 a.m.; on 10.3.2016 he succumbed to the injuries. Scribe of the report is Rohit Singh who was not examined by the prosecution. The post-mortem on the body of the deceased was conducted on 10.3.2016 at 4:15 p.m. The following antimortem injuries on the dead body of the deceased are noted :

External examination -

Deceased was of average built, his height at 160 cm. Dried blood was present inside left ear. Rigor mortis was present in the upper and lower part of the body.

External Injuries -

1. 4cm stitched wound going through left ear bone towards posterior part of the head, bone on the back part was found to be fractured when stitch was opened. Temporal bone on the back of the nose was found to be fractured.

2. Abrasion measuring 2cm x 1cm at a distance of 2cm from the right eye

3. Abrasion measuring 7cm x 3cm present towards left part of the back along with swelling.

4. Abrasion measuring 2cm x 2cm on the front part of left leg one cm below the knee.

Internal Examination -

swelling present in brain membrane, brain was lacerated and clotted blood was present, 16/16 teeth present, mouth, tongue, internal part of the neck, larynx, thyroid cartilage were normal. Wind pipe was having a hole for inserting tube. Ribs and food pipe were normal, lung membranes and lungs were congested. Right part of the heart was filled with blood, left part was empty, big blood vessels were normal, 100 grams of liquid food was present in the stomach, digested food was present in small intestine along with gases, gases and faecal material was present in the large intestine. Liver was congested, gall bladder was semi filled, spleen, pancreas and both lungs were congested, urinary bladder was empty. Reproductive organs were normal.

Opinion -

The death occurred due injuries on the head, approximately one day ago.

The ante mortem injuries are possible by a hard and blunt object. Post mortem commenced at around 4.15 in the afternoon and ended at 4.45.

4. The panchayatnama was conducted on the body of the deceased on 10.3.2016 at 12:30 p.m. As per panch witnesses, elder brother (accused) of the deceased caused injury with danda. After investigation, charge sheet came to be submitted. The accused was summoned under Section 302 IPC to stand trial.

5. The prosecution examined in all six witnesses, Vinod Kumar (PW-1) brother of the deceased, Smt. Shanti Devi (PW-2) mother of the deceased, Head Moharrir Dhruv Chandra (PW-3), Dr. Avadhesh Kumar (PW-4), S.I. Anoop Kumar Dubey (PW-5) and S.H.O. Ravindra Kumar Tiwari (PW-6). PW-1 and PW-2 are the witnesses of fact and rest of the witnesses i.e. PW- 3 to PW- 6 are formal witnesses.

6. The following