The court ruled that the actions of the appellants amounted to culpable homicide not amounting to murder, reducing their conviction from Section 302 to Section 304 Part II IPC due to lack of intent.

JUDGMENT :

Rajnish Kumar, J.

(1) Heard Sri Avinash Kumar Srivastava, learned counsel for the appellant No.1, Sri Rajesh Kumar Awasthi, learned counsel for the appellant No.2, Sri Pawan Kumar Mishra, learned A.G.A. for the State and Sri Ravi Kant Pandey, learned counsel for the complainant.

(2) The instant Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (here-in-after referred as Cr.P.C.) hasbeen filed against the judgment and order dated 03.08.2004 passed by learned Sessions Judge, Ambedkar Nagar in Sessions Trial No.21/2000; State Vs. Phool Chandra and Others, arsing out of Case Crime No.311/1999, under Sections 302 , 504 and 506 of the Indian Penal Code, 1860 (here-in-after referred as I.P.C.), Police Station Baskhari, District Ambedkar Nagar, by means of which, the appellants have been convicted under Section 302 I.P.C. read with Section 34 I.P.C. and sentenced under I.P.C. for life imprisonment alongwith fine of Rs.10,000/- each and in default of payment of fine, to undergo additional six months' rigorous imprisonment and under Section 506 I.P.C. to pay fine of Rs.5,000/- each and in default of payment of fine, to undergo three months' rigorous imprisonment and all the appellants have been acquitted from the charge of Section 504 I.P.C.

(3) The complainant; Ashok Kumar Mishra R/o Village Hajiyapur, Police Station Baskhari, District Ambedkar Nagar submitted a written report at Police Station Baskhari, District Ambedkar Nagar on 09.12.1999, which is extracted below:-

(4) On the basis of aforesaid written report submitted by the complainant, F.I.R. under Section 302 , 504 and 506 I.P.C. was registered vide Case Crime No.311/1999 at 14:30 hours on 09.12.1999. The investigation was started by the Investigating Officer immediately after lodging of F.I.R. He recorded statement of complainant in Police Station and thereafter he reached on the spot alongwith the complainant. He prepared inquest report and sent the dead body for post mortem. The Investigating Officer also prepared the site plan, collected blood stained mud and plain mud from the spot and on the recovery memo, he took signatures of the witnesses. The spade (kudal) and the broken wooden handle (beint) of spade, having blood stains on them, was lying near the dead body, which was also taken into possession by the Investigating Officer and the recovery memo was signed by witnesses also. After completing the investigation, charge sheet was filed. The F.S.L. report was also placed on record, when the same was received.

(5) The learned Magistrate took cognizance on the charge sheet and committed the case to Court of Session. The charges under Section 302 I.P.C. read with Section 34 , 504 and 506 I.P.C. were framed against the appellants. The appellants denied the charge and prayed for trial, therefore, the trial proceeded.

(6) In order to prove its case, eight witnesses were examined by the prosecution i.e. Ashok Kumar as P.W.-1, Dev Mani Mishra as P.W.-2, Constable Suresh Narayan Tiwari as P.W.-3, Arvind Pratap Singh as P.W.-4, Jiya Lal Yadav as P.W.-5, Jairam as P.W.-6, Dr. Major V.N. Singh as P.W.-7 and Ram Naresh Yadav as P.W.-8. The prosecution also placed on record and proved the documentary evidences, which were exhibited.

(7) After conclusion of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. were recorded, wherein they admitted that two and a quarter biswa of land on the eastern side of their house is of Dev Mani. They also admitted that the said land is undivided. It has also been admitted that their chak is in the north of chak of Dev Mani, in which pota