JUDGMENT : Arvind Kumar Mishra-I, J. 1. Heard Sri Sukhvir Singh, learned Amicus Curiae on behalf of the appellant, Sri Krishna Pahal, learned A.A.G. assisted by Sri Bhanu Prakash Singh, learned Brief Holder for the State. 2. By way of instant criminal appeal, challenge has been made to the authenticity, veracity and sustainability of the judgment and order of conviction dated 30.01.1993 passed by the Sessions Judge, Sonbhadra in Sessions Trial No. 84 of 1990 (State vs. Ram Lakhan alias Kallu Pal) s/o Khedu, r/o Bakahi, Police Station – Robertsganj, District – Sonbhadra, whereby the accused-appellant has been convicted under Section - 302 I.P.C. and sentenced to imprisonment for life. 3. Factual chronology of this case, culminating into lodging of the First Information Report, as discernible from perusal of record, is that a written report (Ex.Ka.1) was lodged at Police Station – Robertsganj on 02.10.1988, at 11.30 a.m. by the informant (P.W.1) Rameshwar Nath Dubey s/o Akshaywar Ram Dubey, r/o Village – Bakahi, Police Station – Roberstsganj, Mirzapur, to the effect that the accused - Ram Lakhan alias Kallu Pal was abusing his (informant's) nephew, Shobhnath alias Nageshmani s/o Satya Narayan at 05.30 a.m. in the morning. The nephew of the informant (Shobhnath) asked him not to hurl abuses. An altercation took place on the spot. It has been described in the F.I.R. that Ram Lakhan alias Kallu Pal was watering his field through pumping set in the night and someone manipulated the flow of water and mis-directed it towards some ditch. Ram Lakhan alias Kallu Pal, the accused, was apprehensive that this mischief has been done by Shobhnath (the deceased). Therefore, on account of aforesaid altercation, the dispute increased to some extent, whereupon accused Ram Lakhan alias Kallu Pal took 'khanti' (a tool for digging mud) from his house and tried to assault Shobhnath (deceased), whereupon covillagers Babu Lal, Banshdhari, Hari Nath, Yadunath, Badrinath and the informant arrived on the spot. They snatched away the 'khanti' from the hand of the accused and the matter was patched up for the time being. After some time, when Shobhnath alias Nageshmani was going to the field for grazing his buffaloes, at around 6.15 a.m. in the morning, the accused - Ram Lakhan alias Kallu Pal possessing 'lathi' (wooden stick) in his hand, appeared outside the village all of a sudden and caused 'lathi' blows on him, thus causing grievous injuries. After some time, when Shobhnath alias Nageshmani was going to the field for grazing his buffaloes, at around 6.15 a.m. in the morning, the accused - Ram Lakhan alias Kallu Pal possessing 'lathi' (wooden stick) in his hand, appeared outside the village all of a sudden and caused 'lathi' blows on him, thus causing grievous injuries. The aforesaid persons rushed to his rescue, but by that time, the accused had made his escape good. The saviours tried to apprehend the accused, but they did not succeed. It has been further described that the incident was witnessed by a number of villagers. The injured was taken to the District Hospital, Kakrahi, where the doctor, after giving first aid treatment and considering the condition of the injured Shobhnath serious, referred the matter to B.H.U., Varanasi. The injured was taken to the Government Hospital, Robertsganj, where Shobhnath alias Nageshmani succumbed to his injuries. The dead body of Shobhnath alias Nageshmani was lying in the hospital when the informant Rameshwar Nath Dubey went to lodge the report at the police station. This report was taken down in the Check F.I.R. concerned (Ex.Ka.4) and relevant entries were made in the relevant G.D. of the aforesaid date and time on 02.10.1988 at 11.30 a.m. at Police Station – Robertsganj and a case was registered against the accused at Case Crime No. 537 of 1988, under Section – 304 I.P.C. The investigation of the case ensued and it was entrusted to Hridayanand Mishra (P.W.5), who proceeded to the spot after noting the contents of the F.I.R. and the relevant G.D.; recorded statement of various persons and prepared Inquest Report (panchayatnama) at Government Hospital, Robertsganj and which is marked as Ex.Ka.2. He also prepared relevant documents, while preparing the inquest report and has proved the same as Ex.Ka.6, Ex.Ka.7, Ex.Ka.8, Ex.Ka.9, Ex.Ka.10 and Ex.Ka.11. Besides, he also recorded statement of informant - Rameshwar Nath Dubey at the hospital itself and the statement of the inquest witnesses. Thereafter, he arrived on the spot and prepared the site-plan of the occurrence (Ex.Ka.12). He also collected simple earth and blood stained earth from the spot and kept it in two separate containers and prepared a memo of the same (Ex.Ka-13). Subsequently, the weapon of assault 'lathi' was also recovered at the pointing out of the accused Ram Lakhan alias Kallu Pal. A recovery memo (Ex.Ka.14) was also prepared. 4. He also collected simple earth and blood stained earth from the spot and kept it in two separate containers and prepared a memo of the same (Ex.Ka-13). Subsequently, the weapon of assault 'lathi' was also recovered at the pointing out of the accused Ram Lakhan alias Kallu Pal. A recovery memo (Ex.Ka.14) was also prepared. 4. After completing the investigation, charge-sheet (Ex.Ka.15) was filed under Section 304 of I.P.C. 5. Pursuant thereto, the committal proceeding took place and the case was committed to the Court of Sessions, where it was registered as Sessions Trial No. 84 of 1990 (State vs. Ram Lakhan alias Kallu Pal). From there, it was made over for trial and disposal to the court of Sessions Judge, Sonbhadra. Accused was heard on point of charge and the trial court was prima facie satisfied with the case against the accused, therefore, it framed charge against the accused – Ram Lakhan alias Kallu Pal, under Section 302 of IPC. Charge was read over and explained to the accused in hindi, who pleaded not guilty and claimed to be tried. 6. The prosecution, in order to prove guilt of the accused and substantiate charge against him, produced in all seven witnesses, brief sketch of the same is utinfra :- Rameshwar Nath Dubey (P.W.1), the informant and Hari Nath Dubey (P.W.2) both claim themselves to be the eye-witnesses of the fact of occurrence. Dr. J.S. Gogia (P.W.3) has conducted postmortem examination on the dead body of the deceased on 2.10.1988 at 4.30 p.m. and he has noted seven ante-mortem injuries at the time of the postmortem examination, which injuries are detailed as herein below :- (1) Lacerated wound 5 cm x 1 cm x bone deep on right side of scalp 10 cm from right ear. (2) Contusion 5 cm x 3 cm on the left side of scalp 8 cm from left ear. (3) Contusion 9 cm x 1½ cm on left thigh 10 cm below hip joint. (4) Contusion 8 cm x 1 cm on left thigh 2 cm below injury no.3. (5) Contusion 6 cm x 1½ cm on left thigh 1 cm below injury no.4. (6) Contusion 10 cm x 2 cm on left thigh 2 cm below injury no.5. (7) Contusion 7 cm x 1 cm on left thigh 1 cm below injury no.6. (4) Contusion 8 cm x 1 cm on left thigh 2 cm below injury no.3. (5) Contusion 6 cm x 1½ cm on left thigh 1 cm below injury no.4. (6) Contusion 10 cm x 2 cm on left thigh 2 cm below injury no.5. (7) Contusion 7 cm x 1 cm on left thigh 1 cm below injury no.6. Opinion :- In the opinion of the doctor, the cause of death was due to shock and haemorrhage as a result of the ante mortem injuries. 7. Head Moharrir - Shitla Prasad (P.W.4) has proved entry being made in the Check F.I.R. concerned (Ex. Ka-4) on the basis of the written report (Ex.Ka.1) and relevant G.D. entry (Ex.Ka.5), whereby the case was registered against the accused at Case Crime No. 537 of 1988, under Section – 304 I.P.C. Hridaya Nand Mishra (P.W.5) is the Investigating Officer. He conducted investigation and filed the charge-sheet (Ex.Ka.15). Dr. S.C. Rai (P.W.6) is the person before whom the deceased was brought in injured position, while he was alive and he has proved fact that considering the condition of the injured to be serious, he referred him immediately to the District Hospital or B.H.U. for treatment. He also proved fact that he informed the S.H.O. concerned in writing regarding the condition of the injured, which fact has been proved as Ex.Ka.17. Constable 228 Shiv Nath Yadav is P.W.7. 8. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section - 313 Cr.P.C., wherein the charge was denied and it was claimed that the informant has acted in collusion with the Investigating Officer and the case has been registered on account of enmity. 9. The defence did not lead any evidence, whatsoever. 10. The learned trial judge after hearing both the sides and considering the evidence on record found the charge proved, thus convicting the accused-appellant under Section - 302 I.P.C. and sentenced him to imprisonment for life. 11. Resultantly, this appeal. 12. It has been vigorously claimed by Sri Sukhvir Singh, learned Amicus Curiae on behalf of accused-appellant that the incident in question cannot be said to have been the outcome of any pre-meditation. The fact is that the first information report is ante-timed. In fact, no one saw the occurrence. 11. Resultantly, this appeal. 12. It has been vigorously claimed by Sri Sukhvir Singh, learned Amicus Curiae on behalf of accused-appellant that the incident in question cannot be said to have been the outcome of any pre-meditation. The fact is that the first information report is ante-timed. In fact, no one saw the occurrence. As per testimony, the prosecution witnesses arrived on the spot only after hearing the noise. That very much shows and establishes fact that they did not witness the occurrence. 13. Sri Krishna Pahal, learned A.A.G. assisted by Sri Bhanu Prakash Singh, learned Brief Holder for the State, have retorted to the aforesaid argument and have submitted that the prosecution witnesses have very much proved the factum of incident and all the relevant aspects and circumstances have been consistently established within the four corners of the provisions of Section – 300 I.P.C. thus proving the charge for punishment under Section - 302 I.P.C. In the postmortem examination report, two injuries have been found on the skull and combined effect of both these injuries along with others proved fatal to the deceased. 14. We have considered the rival submissions and also considered the facts and evidence on record. Obviously, as per the first information report, the incident took place around 06.15 a.m. on 02.10.1988 and prior to this, some altercation/dispute had occurred at 05.30 a.m., the same morning, when the dispute was initially reconciled by the interference of the informant and co-villagers, but the crime was committed by the accused after that at a time when the matter was pacified and the deceased Shobhnath alias Nageshmani was proceeding along with his buffaloes for grazing them on the field, when the accused possessing 'lathi' suddenly appeared on the scene and dealt several 'lathi' blows on him, which blows resulted in seven injuries being caused to him (the deceased). It is specific that these injuries on the body of the deceased have not been challenged specifically by the defense to the ambit and magnitude that the same have not been caused in any such incident as the present one. Obviously, the incident took place around 6.15 a.m. and the injured was taken to the hospital, where he was examined by Dr. Obviously, the incident took place around 6.15 a.m. and the injured was taken to the hospital, where he was examined by Dr. S.C. Rai (P.W.6), who without making a note of the injuries and considering the condition of the victim to be serious, immediately referred the injured to District Hospital or the B.H.U. for treatment. Besides, he also informed the S.H.O. concerned about the condition of the victim. It so happened that the victim, while being taken to the hospital, succumbed to his injuries, whereupon a report was written and lodged at the Police Station – Robertsganj. 15. Contention is that the incident was result of provocation on the spot, but nothing of the sort finds the support from the prevailing facts and circumstances of the case, in the light of the development of the incident which took place at 5.30 a.m. and subsequently, at 6.15 a.m. on 02.10.1988. The testimony of the informant regarding the occurrence is straight and unambiguous. Rameshwar Nath Dubey (P.W.1) has been examined as an eye-witness. He has detailed the various aspects of entire incident that took place on 02.10.1988. He has specifically stated that some altercation took place with the deceased and the accused, prior to the incident (at 5.30 a.m.) and the matter was pacified by the interference of others and himself and the accused left the scene. But the incident occurred at a time when the nephew of the informant - the victim-proceeded with his buffaloes for grazing them on the field, when on way the accused appeared on the scene all of a sudden possessing 'lathi' in his hand and dealt a number of lathi blows on the victim, due to which, he fell down. The incident was witnessed, apart from P.W.1, by others including the another eye-witness - Harinath Dubey (P.W.2). They retrieved the situation and took the victim to the hospital before the doctor (P.W.6), who referred the matter for further treatment to District Hospital/B.H.U. The testimony on the point of occurrence of both the aforesaid eye-witnesses P.W.1 and P.W.2 is consistent, truthful and unambiguous. No suggestion, whatsoever, has come forth, which may cast any shadow of doubt on the veracity of these two eye-witnesses. These two eyewitnesses have given a detailed account of the occurrence and they are worthy of credit. Their position on the spot is found to be natural. No suggestion, whatsoever, has come forth, which may cast any shadow of doubt on the veracity of these two eye-witnesses. These two eyewitnesses have given a detailed account of the occurrence and they are worthy of credit. Their position on the spot is found to be natural. The postmortem examination report also tallies with the ocular version that several 'lathi' blows were given by the accused to the victim. Upon careful perusal, we found seven ante-mortem injuries to have been noted by Dr. J.S. Gogia (P.W.3) in the postmortem examination and has proved these ante-mortem injuries, due to which the accused died on account of shock and haemorrhage. In view of the evidence on record to claim that no one saw the occurrence, is an absolutely misconceived claim and it cannot be sustained on its face. The trial Judge while considering the case on its merit, has recorded just and consistent finding. The same is based on material on record. 16. Consequently, the conviction recorded under Section – 302 I.P.C. and the sentence imposed on the accused is justified. We hereby affirm the conviction and sentence imposed upon the accused as no good ground is made out for interference. 17. Consequently, this appeal sans merit and the same is hereby dismissed. 18. The appellant is on bail. He be taken into custody forthwith to serve out the remaining part of the sentence imposed on him by the trial court. His personal bonds and bail bonds are cancelled and sureties stand discharged. 19. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action. The lower court record be remitted to the lower court concerned.