JUDGMENT Hon’ble Vinod Prasad, J.—Sheo Prasad appellant was prosecuted under Section 302 IPC before Sessions Judge, Mirzapur for committing the murder of Smt. Sukhni and was convicted and sentenced to imprisonment for life, vide judgment and order dated 19.12.1981 passed in S.T. No. 2 of 1981 State v. Sheo Prasad. Challenge has been made to the aforesaid conviction and sentence through the instant appeal. 2. The prosecution case as gleaned from the FIR was that on 30.9.1980 in the after noon Smt. Sukhni (deceased) who was the aunt (Barki Mai) of the informant Jamuna P.W. 1 had gone to Bichhi river for bathing accompanied by Smt. Sita Pati (P.W. 3), wife of the informant Jamuna Prasad as it was Jeutia festival. While they were returning to their house after bathing, at about sunset near Sidho tree the appellant, who bore enmity because of ghoulish suspicion encircled Sukhni (deceased) who yelled out for help. Informant Jamna Prasad, Chatur and servant Daya Shankar rushed who were in cattle shed and witnessed that Smt. Sukhni was being assaulted by the accused appellant with Balua while Smt. Sita Pati was shrieking. Informant and other witnesses challenged the accused, who took to his heels towards jungle and could not be apprehended. The deceased died on the spot because of the murderous assault. Later on, certain villagers gathered there. The informant Jamna Prasad scribed the FIR, accompanied by watchman Rama Pati P.W. 4 went to the Police Station, 30 miles north and lodged the FIR Ex. Ka-1 on the following day 1.10.1980, at 9.30 A.M. at Police Station Pipri, district Mirzapur. 3. Ram Awadh Singh P.W..5, prepared the chik FIR Ex. Ka 2 and GD entry Ex. Ka 3. Investigation was started by S.I. Mahendra Narain Misra P.W. 9, In-charge Renukoot Police Outpost who after copying FIR and GD accompanied by six constables proceeded for spot taking S.I. Dal Singar Yadav and constable Tej Narain as well. At 3 P.M. at Beena Ghat he met the informant and watchman waiting for the boat. He recorded their statements and proceeded further and at 5 P.M. reaching Rohwa Ghat at 11 P.M. and night halted there. Next morning at 4 A.M. he started for the place of incident and reached there at 8 A.M., where he found the dead body of the deceased in the keeping of the villagers. He conducted the inquest Ex. He recorded their statements and proceeded further and at 5 P.M. reaching Rohwa Ghat at 11 P.M. and night halted there. Next morning at 4 A.M. he started for the place of incident and reached there at 8 A.M., where he found the dead body of the deceased in the keeping of the villagers. He conducted the inquest Ex. Ka 9 prepared other relevant papers Ex. Ka 10 to Ka 12 and after sealing the dead body dispatched it for post mortem through constables Ram Nayan and Sheo Murat Singh P.W. 8. He also recovered one dhoti and petticoat stained with blood and prepared its recovery memo Ex. Ka 13. He conducted the spot inspection, prepared site plan Ex. Ka 14, made recovery of the blood-stained cloth vide fard Ex. Ka-15 and then affected the arrest of the accused from his house wearing lungi and underwear. As the underwear was stained with blood spots, the same was also taken in custody vide fard Ex. Ka 16. At the instance of the accused he also recovered the weapon of assault (Balua) stained with blood and prepared its recovery memo Ex. Ka 6. The site plan of the place of recovery is Ex. Ka 17. Concluding the investigation, he filed charge sheet Ex. Ka 18. 4. Autopsy on the body of the deceased was conducted by Dr. Mahendra Kumar Singh P.W. 7 on 3.10.1980 at 10.30 A.M. The deceased was aged about 40 years and had died 2-1/2 days prior. He found the following ante mortem injuries on her body : 1. Incised wound 4 cm. x 1 cm. x bone depth on the nose cutting the nasal bone and nose. 2. Incised wound 4 cm. x 1 cm. x 1 cm. depth on the mouth cutting upper jaw and upper lip. 3. Incised wound 14 cm. x 1 cm. x 1 cm. depth on the neck front and left side cutting the hyoid bone and vessels. 4. Incised wound 10 cm. x 2 cm. x 1 cm. depth in front of left, shoulder joint. 5. Incised wound 8 cm. x 2 cm. x 1 cm. depth in front of right shoulder joint. 5. On internal examination, he found lungs to be congested, I and II molar teeth were missing. 4. Incised wound 10 cm. x 2 cm. x 1 cm. depth in front of left, shoulder joint. 5. Incised wound 8 cm. x 2 cm. x 1 cm. depth in front of right shoulder joint. 5. On internal examination, he found lungs to be congested, I and II molar teeth were missing. In his opinion, the cause of death was shock and haemorrhage as a result of ante mortem injuries, which appeared to have been caused by sharp edged weapon. 6. In the trial, the prosecution to prove its case, against the accused examined 9 witnesses—Jamna Prasad P.W. 1 (informant), Daya Shankar P.W. 2 (an eye-witness and servant of the informant), Smt. Sita Pati P.W. 3 (wife of the informant and eye-witness), Rama Pati P.W. 4 (watchman), Parmeshwar P.W. 6 (brother-in-law of the deceased and witness of recovery), testified regarding the factual matrix of the case. Ram Awadh Singh H.C P.W. 5 (who prepared the Chik and GD), Dr. Mahendra Kumar Singh P.W. 7 (who conducted autopsy on the body of the deceased), Constable Sheo Murat Singh P.W. 8 (who carried the dead body for post mortem) and S.I. Mahendra Narain Misra, S.O. police outpost Renukoot, P.W. 9 (the I.O. of the case), were other formal witnesses. 7. The defence of the accused aged about 17. years, was that of denial and false implication in connivance between the police and the informant. 8. The trial Court vide its impugned judgment and order after scrutiny of evidence of witnesses and other materials on record, was satisfied that the accused had ample motive to commit the murder of the deceased and the charge was proved beyond doubt and, therefore, held the appellant guilty under Section 302, IPC and convicted him to life imprisonment, which has resulted in the present appeal. 9. Sri Brijesh Sahai, Advocate was appointed as Amicus Curiae under order dated 12.7.2005 passed by another Bench to argue the appeal, as the appellant was not traceable. We have heard him at a great length and Sri Amar Jeet Singh learned AGA on behalf of the respondent State. We have also gone through the evidence and other material on record. 10. It is contended by the learned counsel for the appellant that the prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt and the appellant is entitled for acquittal. We have also gone through the evidence and other material on record. 10. It is contended by the learned counsel for the appellant that the prosecution has not been able to prove the guilt of the appellant beyond reasonable doubt and the appellant is entitled for acquittal. He further submitted that the FIR of the incident is delayed being the outcome of concoction and deliberations and cannot be relied upon. Secondly, he submitted that there is no independent witness of the incident and all are related witnesses and consequently their testimony cannot be relied upon. Thirdly, he contended that the arrest of the appellant and the recovery of the weapon of assault from his possession is doubtful and .cannot be relied upon. Lastly, it is submitted by him that the chemical examination report is not linked with the recovery and was wrongly relied upon by the trial Court to convict the appellant. Concludingly, he contended that the prosecution has miserably failed to bring home the guilt of the appellant, who is entitled for acquittal. 11. Learned AGA on the contrary submitted that all the witnesses of fact have unerringly supported the prosecution case and there is nothing in their statements, which belies the prosecution version. They are the witnesses whose presence is natural and probable and who will not falsely implicate the accused. The testimony of these witnesses is of unimpeachable character. The FIR was lodged with promptness and there is no delay in it. The argument against the chemical examination report is devoid of merit. Consequently, he contended that there is no merit in the appeal, as the prosecution has successfully proved the appellant to be guilty of the murder. The appeal is liable to be dismissed as per his submission. 12. For adjudicating the correctness of the submissions made and judging the guilt or of the innocence of the accused a synopsized discussion of material evidence is necessary. 13. The harbinger of prosecution evidence was Jamna Prasad P.W. 1, the informant and nephew of the deceased. He stated that Chatur Ram was his eldest uncle and deceased was his wife. The appellant was the resident of his village and he had left his first wife four years ago and had remarried after a year. 13. The harbinger of prosecution evidence was Jamna Prasad P.W. 1, the informant and nephew of the deceased. He stated that Chatur Ram was his eldest uncle and deceased was his wife. The appellant was the resident of his village and he had left his first wife four years ago and had remarried after a year. 15-20 days prior to the incident the goat of the appellant had denuded the crop of the informant regarding which a verbal tired had taken place between the deceased and the appellant wherein the deceased had taunted the appellant that his first wife had run away and he would not be able to enjoy marital bliss, as his second wife would also die. 8 or 10 days after the said altercation, the wife of the appellant had fallen ill and he suspected that she was pervaded by ghost because of the curse of the deceased. He had called a trout (Ojha) for her cure. Husband of the deceased had also taunted him that if he apprehended that his wife had been charmed by ghost because of deceased then he might return the ghost to him through panchayat and he would punishit (ghost). The second wife of the appellant breathed her last one-two days thereafter. On the festival of Jeutia when the women keep fast in the evening deceased and his wife Sita Pati P.W. 3 had gone for bathing in Bichhi river at a distance of ½ Koss (one mile) east, to his village. Before an hour for sunset the shrieks of the deceased and his wife emanated from the east, when he, husband of the deceased (Chatur) and his servant Daya Shankar who were in cattle shed rushed towards the sound and saw the accused assaulting the deceased. The deceased fell down and died. No sooner the informant and the other witnesses reached the spot, the accused ran away towards the south and could not be apprehended. Many people of the village collected there. He scribed the FIR and accompanied by Rama Pati P.W. 4 started for the Police Station 32 miles away on foot, as the way was mountainous forest and reached there at 9.30 A.M. next day and lodged the FIR. He also stated that before the goat incident there was no animus between them. Many people of the village collected there. He scribed the FIR and accompanied by Rama Pati P.W. 4 started for the Police Station 32 miles away on foot, as the way was mountainous forest and reached there at 9.30 A.M. next day and lodged the FIR. He also stated that before the goat incident there was no animus between them. The deceased was taunting from her own land and the house of the appellant was adjacent to that field. The altercation had lasted for about half an hour. He further stated that it was still an hour before lighting of the lamp when the incident occurred. He testified that he had scribed the report at the place of the incident itself in the light of lantern, brought by Parmeshwar P.W. 6. He further deposed that many people of the adjoining villages had reached on the spot. He denied the suggestion that he had not witnessed the incident and that the FIR was cooked up after the I.O. reached the spot. 14. Daya Shankar P.W. 2 narrated the same manner of assault and evidenced that the deceased had fallen down supine and she was assaulted thereafter as well on the neck and on the face. He gave the description of the assaulting weapon as Balua. 15. Smt. Sita Pati P.W. 3 also supported the statements of P.W. 1 and 2 and deposed that she and the deceased had gone for bathing and they started coming back immediately after taking bath. She further deposed that the assault continued for a minute and the deceased had fallen down, because of the assault. Her husband and other witnesses had reached there immediately after deceased fell down. She further deposed that the lights were lighted after an hour of the incident and being unarmed lady she was deterred from intervening physically. She further deposed that watchman had reached at the place of the incident immediately, and till the police came, they were keeping vigil over the corpse. 16. Rama Pati P.W. 4 testified that he was the watchman of the village Barai Darh, which was at the distance of about 4 miles and he was called by Baijnath on the Juitia day and was informed about the murder of the deceased. He specifically stated that the informant had already scribed the report before he reached the spot. 16. Rama Pati P.W. 4 testified that he was the watchman of the village Barai Darh, which was at the distance of about 4 miles and he was called by Baijnath on the Juitia day and was informed about the murder of the deceased. He specifically stated that the informant had already scribed the report before he reached the spot. On the request of the informant he had accompanied him to the police station. 17. Parmeshwar P.W. 6 was a witness of recovery including of the weapon of offence at the instance of the accused appellant and of his blood stained underwear. He was searchingly cross-examined regarding the place of the recovery but nothing material could be elicited to the advantage of the accused. 18. In the backdrop of the above material evidence, we first address ourselves to argument of the learned amicus curiae that the FIR is delayed. It is to be noted that the place of incident was 30 miles from the police station and there was no transport available as the way was mountainous forest. It was to be covered on foot and with river in the way, to be sailed through boat as per the evidence of Jamuna Prasad P.W. 1 and Ram Pati P.W. 4. Thus we are of the opinion that there was no delay in lodging the FIR. P.W. 1 has given a graphic account of his journey to the police station, which is convincing and acceptable. Thus, the argument of the learned counsel for the appellant that the FIR is delayed does not hold the ground and is rejected. 19. It is important to point out here that the counsel for the appellant while making submissions on this aspect of the matter has also argued that the FIR was cooked up and ante timed at the police station. In this respect the statement of the P.W. 1 that he scribed the FIR at the spot itself coupled with the statement of watchman P.W. 4 that when he reached the spot after being called for, the FIR was already in existence scribed by the informant leaves no room for doubt that it was prepared soon after the incident by the informant P.W. 1 and no embellishment or manipulation had been done in it. A perusal of the FIR, which is short, concise and to the point also attaches genuineness in it. A perusal of the FIR, which is short, concise and to the point also attaches genuineness in it. The evidence of the Head Constable P.W. 5, who recorded the FIR and prepared the Chik and GD also lends strength to the spontaneity of the FIR which has corroborative value. 20. So far as the next submission of the learned counsel for the appellant is concerned that there is no independent witness of the incident, only this will suffice to say that merely because the witnesses are related with the deceased their testimony cannot be rejected as false. It is an incident which had taken place in the month of September at about sunset when generally the village people are busy with the cattle feeding and in making preparation for dinner etc. very few people are seen outside at this point of time. The incident had taken place at the spur of the moment and lasted in short while as testified by Smt. Sita Pati P.W. 3. Therefore, the presence of other independent witnesses in such a short period could not be expected. Further, it has come in evidence that the village is bifurcated into many conglomerations and clustered of the houses which are at some distance from each other. In this view of the matter this submission raised by the counsel for the appellant is also not acceptable and is hereby rejected. 21. Another submission canvassed by Sri Sahai that the arrest of the accused from his house and recovery of the weapon as alleged by the prosecution is doubtful, also does not hold good. Mahendra Narain Misra P.W. 9 as well as Parmeshwar P.W. 6 fully supported the arrest of the accused and recovery of the weapon at the instance of the accused. A perusal of their evidence as well as recovery memos Ex. Ka 6 and Ex. Ka 16 leaves no room of doubt that the accused was arrested as alleged by the prosecution and that the recovery was made at his pointing out. Chemical examination report proved the presence of blood on the cloth of the accused vide Ex. Ka 20 and the injuries of the deceased could be caused by the recovered weapon (Balua) Ex. 4. Thus there is no room for doubt regarding this part of the prosecution case. 22. Chemical examination report proved the presence of blood on the cloth of the accused vide Ex. Ka 20 and the injuries of the deceased could be caused by the recovered weapon (Balua) Ex. 4. Thus there is no room for doubt regarding this part of the prosecution case. 22. Lastly, it has been contended by the learned counsel that no offence under Section 302, IPC is made out against the appellant and the offence would not travel beyond the scope of Section 304 Part II, IPC. This submission of the learned counsel for the appellant has some force. The accused was 17 years of age. His first wife was deserted by him or she had deserted her. He had re-married. His second wife also died because of some desease after brief illness. Preceding illness the deceased and her husband had cursed and taunted him. The place of incident is remote area untouched by modern life, where people are very poor and utterly superstitions believing in ghosts and plainchants. The accused a young man lost his wife after few days of the taunt and curse given to him by the deceased and her husband advising him to return the ghost to him through Panchayat. Obviously, it was haunting and reverberating in the young mind of the accused that he lost his wife deceased of ghoulish mischief of the deceased and her husband of planting ghost on him/his wife who died after brief illness. He assaulted the deceased overwhelmed by such sentimentality. He wanted to severely punish her but did not intend to commit her murder. We are of the opinion that the act of the accused was the outcome of his anguish pervaded by sentimentality generating in the above background. Shortly stated, he had no intention to cause the death of the deceased. Nor he had any intention to cause such bodily injury as he knew to be likely to cause the death of the victim. Severely chastising deceased moved him to the complained act. Only the knowledge of causing death attributable to him but not the intention to murder. Therefore, we are of the opinion that the accused appellant only committed an offence under Part I of Section 304, IPC. Imposition of a sentence to ten years rigorous imprisonment would be sufficient to meet the ends of justice. 23. Consequently the appeal is allowed in part. Therefore, we are of the opinion that the accused appellant only committed an offence under Part I of Section 304, IPC. Imposition of a sentence to ten years rigorous imprisonment would be sufficient to meet the ends of justice. 23. Consequently the appeal is allowed in part. The conviction of the appellant Sheo Prasad under Section 302 IPC with sentence of life imprisonment is set aside. Instead, he is convicted under Section 304 Part I, IPC and is sentenced to 10 years’ rigorous imprisonment. The C.J.M. Mirzapur shall cause the appellant Sheo Prasad to be arrested and lodged in jail to serve out the sentence. 24. Sri Brijesh Sahai Advocate who argued the appeal, as amicus curiae shall get Rs. 1000/- (One thousand) as his fee. 25. Certify the judgment to the lower Court for reporting compliance within two months. Appeal Partly Allowed. ———