The court held that the accused committed culpable homicide not amounting to murder due to the absence of premeditated intent to kill amidst a sudden quarrel, justifying a conviction under Section 304 IPC.

JUDGMENT :

Surya Prakash Kesarwani, J.

1. Heard Shri PK Singh, learned counsel for the accused appellant No.1, Shri I.K. Chaturvedi, learned Senior Advocate assisted by Shri Amresh Singh and Shri Saurabh Chaturvedi, learned counsel for the informant and Shri K.P. Pathak, learned A.G.A. for the State.

2. There are two appellants in this appeal. Appellant no.2 Sheo Shanker Misra has died and the appeal qua the accused appellant no.2 Sheo Shanker Misra has been abated by order dated 30.08.2018. Thus, the appeal now survives only for accused appellant no.1 Kali Prasad Misra.

Facts:-

3. Briefly stated facts of the present case are that the informant eyewitness PW-1, Smt. Ram Adhari Devi wife of the deceased Hinch Narayan Mishra, resident of village Pure Khudi, P.S. Handiya, District Allahabad lodged a first information report (Chik No.162) on 23.5.1980 at about 05:00 a.m. with respect to an incident dated 22.05.1980 of about 06:00 p.m. being Case Crime No.186/10/1980 under Section 304 IPC alleging that her Devar Lakh Narayan Mishra and two nephews namely Kali Prasad and Sheo Sankar, both sons of Ram Lakhan came to call her husband for panchayat in the family dispute but her husband refused to go in panchayat and there upon all the aforesaid three accused persons started abusing and the accused persons Kali Prasad and Sheo Sankar beaten her deceased husband with their lathis on the pointing out of the accused Lakh Narayan Mishra to assault. Her husband fell and thereafter the accused persons fled away abusing. She took her husband and laid him in a cot at the house of the door and called Dr. Hari Vishal Singh who gave treatment but her husband died at about 10:00 p.m. When the PW-3 Mahendra Narayan Mishra, who is sister's son of the informant; came at about 02:00 a.m. in the night, she went to lodge the FIR at the police station and accordingly the FIR was registered at 05:00 a.m. on the next day, i.e. on 23.05.1980. The investigating officer came on the spot and prepared two recovery memos both dated 23.05.1980, which includes the recovery memo of taking sample of plain earth and blood stains from the spot of incident. Inquest report was prepared on 23.05.1980. In the inquest report, the Panches had opined that the deceased Hinch Narayan Mishra has died due to injuries caused on the head. The body of the deceased was sent for autopsy. As per postmortem report, following injuries were found on the body of the deceased Hinch Narayan Mishra:-

“(1) Contusion 2" x 3/2" over the nasal bridge and below the left eye with fracture of nasal bone.

(2) Lacerated wound transversely directed, 2" x 1/2" on the middle of skull, 8" above the root of the nose.

(3) Contusion obliquely directed 2" x 1" over the scalp, 1" towards right of Injury No. 2.

(4) Depressed fractured scalp, 1,1/2" x 1" with fracture of left parietal bone which was 4" above the right ear.

(5) On the opening of ante-mortem injury No. 4, plenty of denatured blood came out.

(6) Contusion 2" x 2" over the right fore-erm.

(7) Contusion 2" x 2" over the right palm.

(8) Contusion 2" x 1, 1/2" over the outer and lower aspect of left leg, 4" above the ankle joint.”

4. The chargesheet dated 05.07.1980 was submitted by the police against all the aforesaid three accused persons under Section 304 I.P.C. The Vth Additional Session Judge, Allahabad framed the charges on 06.05.1982 under Section 302 /34 I.P.C. against all the three accused persons and in alternative under Section 304 /34 I.P.C