JUDGMENT : 1. This jail appeal has been preferred against the order of conviction and sentence dated 06.10.2018 by the Court of Additional Sessions Judge, Court No.9, Hardoi in Sessions Trial No.260 of 2016 in case crime no.43/2016, under Section – 304, 506 IPC, Police Station – Behata Gokul, District – Hardoi. 2. In brief, facts of the case are that Lalu alias Akhilesh lodged an FIR on 02.02.2015 that on 01.02.2015 at around 04:00 PM he was sitting in the western side of the plot of Jagpal Rathore. Suddenly Dharmesh came with unknown person and started going from his plot. When his father opposed, Dharmesh attacked from the wooden patra an unknown person attacked with lathi. When his father cried he saw and ran towards them then they ran away giving death threats. His father received injury at his head and stomach. With the help of villagers he moved him to the hospital where he died during the treatment. He requested to lodge FIR and take appropriate action. According to him Mahipal has also seen the occurrence. 3. The grounds of the appeal are that when the accused was in jail he forwarded jail appeal with the allegation that he has been punished with seven years rigorous imprisonment and Rs.10,000/-fine in case crime no.43/2016 in Sessions Trial Case No.260/2016, under Section 304 Part – II IPC by the Court of ASJ-IX th, Hardoi on 06.10.2018. He belongs to a poor family. There is no other person to do 'pairavi' on his behalf, therefore, a jail appeal be preferred. 4. This application was forwarded by Jail Superintendent, Lucknow which was treated as jail appeal. 5. From the perusal of the above jail appeal it is apparent that no proper grounds have been taken by the accused-appellant. 6. During the course of trial following evidence were recorded : ORAL EVIDENCE PW-1 Lalu alias Akhilesh PW-2 S.M. Mohd. Ujair PW-3 Mahipal PW-4 Dr. 5. From the perusal of the above jail appeal it is apparent that no proper grounds have been taken by the accused-appellant. 6. During the course of trial following evidence were recorded : ORAL EVIDENCE PW-1 Lalu alias Akhilesh PW-2 S.M. Mohd. Ujair PW-3 Mahipal PW-4 Dr. Sanjay Kumar Saini PW-5 I.O. Inspector Brijesh Kumar Tripathi PW-6 IO/SO Amar Pal Sharma Documentary Evidence Tahrir Exhibit Ka-1 Chic FIR Exhibit ka-2 GD Exhibit Ka-3 Police Proforma No.127 exhibit ka-3 Postmortem report exhibit Ka-4, Map exhibit ka-5, Recovery memo Exhibit Ka-6, Map recovery Exhibit ka-7, Charge sheet Exhibit ka-8, Inquest Exhibit ka-9, Police Form 33 Exhibit ka-10, Police Form 379 Exhibit ka-11, letter to RI Exhibit ka-12, Letter to CMO Exhibit ka-13 specimen seal Exhibit ka – 14 Letter to CMO – Exhibit ka-13 and specimen seal – Exhibit ka – 14 7. After recording of evidence statement of the accused was recorded under Section – 313 CrPC in which he said that he was falsely implicated on the pretext of village pradhan election. According to him the case was lodged on account of 'ranjish' and said to produce evidence in defence but no evidence was produced by him. 8. PW-1 Lalu alias Akhilesh is the informant and son of the deceased and also eyewitness who deposed that on 01.02.2016 at about 04:00 PM he was giving water in his wheat crop. His father was also there. who was sitting on the boundary of his nearby plot. At the same time accused Dharmesh with wooden patra and other person with lathi crossed his plot. His father forbade them then both the accused person started abusing his father. When his father prevented them then accused Dharmesh beat him with his wooden patra and the unknown person also beat him. When his father cried he saw the occurrence and ran towards him to save his life but both the accused persons threatened him to life. At the same time his relative Mahipal who was going from Hardoi to village Jagdishpur saw the occurrence. On his cry accused ran away after giving threatening to life. He transported his father to district hospital Hardoi where during the treatment his father died. Next day he lodged the FIR. This witness has proved the tahrir exhibit ka-1. 9. PW-2 Head Moharrir Mohd. On his cry accused ran away after giving threatening to life. He transported his father to district hospital Hardoi where during the treatment his father died. Next day he lodged the FIR. This witness has proved the tahrir exhibit ka-1. 9. PW-2 Head Moharrir Mohd. Ujair is the formal witness who has proved Kayami GD exhibit ka-3 and chic FIR Exhibit ka-2 and also photocopy of hand written G.D. as Exhibit Ka-3 A. 10. PW-3 Mahipal is an eyewitness who has supported the prosecution version and has said that at about 04:00 PM he was going to his village from the market of Jagdishpur. When he reached near the plot of the deceased he saw that accused Dharmesh was beating the deceased from wooden patra. He challenged him as to why he was beating the deceased then accused Dharmesh ran away from the plot. According to him at that time Lalu alias Akhilesh son of deceased Ujja was also present. According to him the injured was taken to the District hospital where he died during the treatment. According to him the deceased died due to the injury caused by the accused Dharmesh. 11. PW-4 Dr. Sanjay Kumar Saini is the witness of postmortem. He has done the autopsy of the dead body of the deceased. He found three antemortem injuries on the body of the deceased. These are as under :- (i) Contusion 3 x 2 cm on the skull. (ii) Lacerated wound 1.5 cm x 0.5 cm on the back and outer area of right thumb. (iii) Contusion 16 x 12 centimeter area of chest and the abdomen according to him when he opened his body he found ribs were broken and liver was torn, lungs and spleen were pale. The deceased died at 08:35 PM on 01.02.2016 in District Hospital Hardoi. 12. According to the witness the deceased died due to bleeding, haemorrhage and shock. 13. PW-5 Brijesh Kumar Tripathi was the Investigating Officer of occurrence who has done investigation in the case. This witness has proved map of the spot as exhibit ka-5. Recovery memo of the weapon as exhibit ka-6, map of the recovery memo as exhibit ka-7, charge sheet as exhibit ka-8 and wooden patra as material exhibit – 1. 14. PW-6 was appointed as S.I. on the day of occurrence. This witness has proved map of the spot as exhibit ka-5. Recovery memo of the weapon as exhibit ka-6, map of the recovery memo as exhibit ka-7, charge sheet as exhibit ka-8 and wooden patra as material exhibit – 1. 14. PW-6 was appointed as S.I. on the day of occurrence. According to him he received copy of the tahrir and death memo and on the direction of SHO reached mortuary where he did inquest of the exhibit ka-9 of the deceased and prepared challan in his exhibit ka-10, photo in his exhibit ka-11, letter to RI exhibit ka-12 and letter to CMO as exhibit ka-13. He has also proved the specimen seal as exhibit ka-14. 15. This case is based on direct evidence. There are two eyewitnesses PW-1 informant Lalu alias Akhilesh son of the deceased and PW-3 Mahipal independent eyewitness. Both the witnesses of fact have deposed against the accused and have deposed that wheat crop was standing in the plot. He was giving water. His father was also present there and when accused and the unknown person started crossing the wheat field and when his father prevented them then they attacked upon him and caused fatal injuries due to which he later on died. Similar statement has been given by PW-3 Mahipal. Thus, from the evidence of both the witnesses of fact it is clearly established that the accused and the unknown person caused fatal injuries to the deceased due to which he succumbed. 16. It has already been said that no evidence in defence has been produced by the appellant. So far as the alleged enmity is concerned, no oral or documentary evidence has been produced by the accused, therefore, it is established that there was no occasion of false implication of the accused in the present case by the informant. 17. From the perusal of the evidence it is established that this occurrence actually took place when accused and his unknown companion started crossing the wheat crop field and they were prevented by the deceased to save the damage of property. 18. In the lower court learned counsel for the applicant had questioned that since the informant PW-1 does not know the number of the plot in suit, therefore, the case is doubtful. The lower court has not accepted that such ignorance is fatal for the prosecution. 18. In the lower court learned counsel for the applicant had questioned that since the informant PW-1 does not know the number of the plot in suit, therefore, the case is doubtful. The lower court has not accepted that such ignorance is fatal for the prosecution. The witness has said that the area of the plot is 5 bigha and 70-80 feet in length and width. From the map and evidence of I.O. it is established that the place of occurrence is not changed. Only not knowing the Khasra number of the plot is not material and on this basis the informant PW-1 cannot be said to be a false witness. It is also not established that the crops were so long that it was impossible to recognize the accused. Similarly, PW-3 Mahipal has also no enmity with the accused. He is also eyewitness who intervened in the occurrence and when he challenged the accused, he ran away from the wheat field. He recognizes the accused from his childhood. In this regard he said that he knows him because his 'mausi' lives in his village. It has come in the evidence of PW-1 that the wheat crop was up to the height of waist so it was quite probable to see and recognize the accused. It is also discussed by the lower court that informant PW-1 could not chase the accused persons but firstly he attended his father. Till then the accused persons had run away. Such conduct is quite natural and from such conduct of informant it cannot be inferred that he is telling a lie. In similar situation different persons act differently. A person can face and chase the accused persons, another person can run away from the spot, another person can attend the injured, so it depends upon the mental condition of the person concerned. The lower court has also discussed that informant PW-1 has not correctly counted the number of attacks by each accused separately. There is no law that it is mandatory for the witness to give description of exact numbers of attack by all accused persons. PW-1 has said that accused persons beaten his father three-four times by lathi attack and three-four times from wooden patra. So inability in giving the correct description is not the requirement of law. PW-3 only recognizes the present accused-appellant. He could not see another person. PW-1 has said that accused persons beaten his father three-four times by lathi attack and three-four times from wooden patra. So inability in giving the correct description is not the requirement of law. PW-3 only recognizes the present accused-appellant. He could not see another person. The lower court has not found this witness a chance witness. Lower court has relied on the citation Kallu vs. State of Haryana [AIR (2012) Supreme Court 3212] in which Punjab and Haryana High Court has held that there is no rule of law that the evidence of chance witness cannot be relied on though his evidence should be minutely observed. This Court also finds the evidence of PW-3 credible in absence of any motive and enmity with the accused. 19. From the evidence it is established that informant PW-1 carried his father with the help of Malkhan (Driver of hospital), Dinesh Pal and Ram Singh in the jeep of Malkhan. He reached hospital at about 07:00 PM and PW-3 has not accompanied the informant -deceased and above mentioned persons. Only on this account it cannot be said that PW-3 has not seen the occurrence. It is not necessary that every eyewitness shall also accompany the injured to the hospital. Lower court has also discussed this fact that sister of the informant Lalu has been married in the family of PW-3 Mahipal but this alone is not sufficient to conclude that PW-3 is a false and planted witness. Since the place of occurrence is situated on the way of Bazar to his village, therefore, he cannot be said to be a chance and planted witness. Even under Section 134 of the Evidence Act single testimony is sufficient to prove the guilt. CertainlyPW-1 was present at the spot at the time of occurrence and he has given evidence in support of the prosecution, therefore, it cannot be said that only to strengthen the prosecution story PW-3 has been mentioned as eyewitness. Learned lower court has relied on the citation Bhagwan Jagannath Markand vs. State of Maharashtra [ (2016) 10 SCC 537 ] in which Hon'ble Supreme Court has held that testimony of a witness cannot be refused only on the ground that he is relative of the deceased but it has been directed that his evidence should be seen with care and caution and if the same inspires confidence then the accused can be convicted. 20. 20. In this case the occurrence took place at about 04:00 PM of 01.02.2016 and the report was lodged at 11:20 AM of 02.02.2016. The distance between the place of occurrence and police station is about 8 Kms. Firstly injured was taken to the district hospital Hardoi where he died at about 07:10 PM. The information was sent to the police station Kotwali Shahar from the hospital same day. The distance from the Sadar hospital to Behta Gokul police station is about 16 Kms. Inquest was conducted at about 07:40 PM of 02.02.2016 at District Hospital. Death memo was issued on 08:35 pm of 01.02.2016. It appears that informant PW-1 is the sole son of the deceased. 21. In these circumstances, it was not possible for the informant to leave the dead body and go to police station to lodge the FIR just after the incident or just after the death of his father. There is some cutting over the inquest. The lower court has relied on the ruling Brahma Swaroop vs. State of U.P. AIR 2011 Supreme Court page 280 in which it is held that the purpose of inquest is to know as to how the injuries were caused and what is the apparent cause of death. It is held in several cases that inquest is not substantive piece of evidence. This Court is of the opinion that onlydelay of some hours in lodging of FIR and some cutting over the inquest is not fatal for the prosecution and in this context the lower court has correctly analyzed the case. 22. There is no difference or disparity between the ocular and medical evidence. According to prosecution case the deceased was beaten by lathi and wooden patra and the injuries are contusion and lacerated wound which can be caused by wooden patra and lathi. Thus, the ocular and medical evidence are in support of each other and wooden patra has also been recovered from the pointing of the accused. The lower court has convicted and sentenced the accused under Part II of Section 304 IPC. Thus, the ocular and medical evidence are in support of each other and wooden patra has also been recovered from the pointing of the accused. The lower court has convicted and sentenced the accused under Part II of Section 304 IPC. According to Section 304 IPC whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine if the act by which the death is caused is done with the intention of causing death or of causing such bodily injury as is likely to cause death or with imprisonment of either description for a term which may extend to 10 years or with fine or with both. If the act is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injuries as is likely to cause death. In the first Part of Section 304 IPC an accused can be punished up to the imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine whereas as per Second Part the maximum sentence is 10 years or with fine or with both if the act is done with the knowledge. First part of Section 304 IPC is based on the intention of the accused whereas Second Part is based on the knowledge. Lower Court concluded that there was no intention of the accused to kill the deceased. The occurrence occurred suddenly without any prior meeting of mind. Accused with another unknown co-accused were going to their destination and it appeared that to reach fast at the destination they crossed the green wheat crop and to avoid damage when they were prevented by the deceased they attacked upon him from the weapon which they were having in their hands which became fatal for the deceased and during the course of treatment he died. 23. Considering these facts of the offence the lower court has convicted and sentenced the accused under Part-II of Section 304 IPC. This Court is also of the opinion that there was no previous enmity between the accused and the deceased or the informant. 23. Considering these facts of the offence the lower court has convicted and sentenced the accused under Part-II of Section 304 IPC. This Court is also of the opinion that there was no previous enmity between the accused and the deceased or the informant. In order to reach suddenly at the destination appellant-accused crossed the green crop of the deceased and when he was prevented then in sudden provocation he attacked upon the deceased and later on deceased succumbed. 24. From the above discussion it is established that the deceased died due to injuries caused by the accused and his unknown companion who could not be recognized and who could not be tried. It is also obvious that there was no intention of the accused to kill the deceased. It was an incident of sudden provocation but injuries numbers 1 and 3 are on the vital part and one should have knowledge that if he causes such injuries to any person such person may die. 25. Thus, it is established that accused has caused the offence under Section -304 Part-II IPC and it would also be presumed that act was done with the knowledge that would likely cause death or shall cause such bodily injury which would likely cause death. 26. The lower court has acquitted the accused under Section 506 IPC. There is no evidence that accused threatened to dire consequences or life threat to the informant. So far as the injured deceased is concerned he has died. No cross appeal has been preferred by the State, therefore, this Court is also of the opinion that charge under Section 506 IPC is not proved. 27. The accused has been convicted under Part-II of Section 304 IPC as has been sentenced for seven years rigorous imprisonment and Rs.10,000/-fine and in case of default for non-payment three months additional rigorous imprisonment has been awarded. Out of Rs.10,000/-fine Rs.5,000/-amount of fine has been given to the informant. The appellant has not engaged any private counsel and an amicus curiae has been appointed to defend his case who argued the case before this Court. It is not known to this Court as to whether the accused appellant has any family burden or not ? He was not expected to cross the green wheat crop. Certainly, if any person crosses the green wheat crop, his foot shall damage the crop. It is not known to this Court as to whether the accused appellant has any family burden or not ? He was not expected to cross the green wheat crop. Certainly, if any person crosses the green wheat crop, his foot shall damage the crop. There was alternative route for the accused to go through the boundaries of the plot but he selected to cross the green wheat crop and upon preventing by the deceased, in a fit of anger he along with his unknown companion hit the deceased who later on died. This Court is of the opinion that seven years' rigorous imprisonment and Rs.10,000/-fine is not much more in the attending circumstances. No force was applied against the accused. Informant and deceased were working on the plot in rightful manner and there was no occasion to do the alleged act by the accused which resulted in the death of the deceased. This Court is of the view that the whole aspect of the case has been fully proved by the oral and documentary evidence. The prosecution has been successful in proving the case beyond reasonable doubt under Part-II of Section 304 IPC, therefore, the appeal fails and is liable to be dismissed. Accordingly, the appeal is dismissed. The order of conviction and sentence dated 06.10.2018 passed by the lower court is affirmed. A copy of this judgment be sent to the concerned court and concerned Jail Superintendent for compliance.