JUDGMENT Arvind Kumar Mishra-I, J. Heard learned counsel for the appellant as well as learned A.G.A. for the State and perused the material brought on record. 2. The instant appeal has been preferred against the judgement and order of conviction dated 01.05.2010 passed by the Special/Additional Sessions Judge, Ballia in Session Trial No.187 of 2008, arising out of Case Crime No.93 of 2008, under Section - 302 I.P.C., Police Station - Nagra, District - Ballia, whereby the appellant has been convicted and sentenced to undergo imprisonment for life under Section - 302 I.P.C., coupled with fine Rs.3,000/- in default of payment of fine, two years additional rigorous imprisonment. 3. Factual matrix of this case as discernible from record, proceeds on facts that Smt. Suman Singh, wife of deceased-Kailash Singh lodged a written report against accused-Bablu @ Ranjeet Singh, son of Sri. Virendra Singh, resident of Village - Deoria, Police Station - Nagra, District - Ballia at Police Station-Nagra, District - Ballia at 10:20 a.m. on 10.06.2008 regarding the incident, which took place in her Village - Deoria in District - Ballia, located about four kilometers north-east of the police station to the import that there is one mango grove in partnership owned by the informant as well as Virendra Singh and Doodh Nath Singh. Mango of that grove was sold out for Rs.1,500/- and Virendra Singh had decided that out of aforesaid Rs.1,500/-, Kailash Singh will get Rs.600/-, Doodh Nath Singh will get Rs.500/- and Bablu Singh (son of Virendra Singh) will get Rs.400/- and the money was distributed among them accordingly. Bablu alias Ranjeet Singh was annoyed over it as he received lesser money Rs.100/- than the two others. To express his anguish he created hurdle in the way in the free egress and ingress to the house of the deceased-Kailash Singh by fixing bamboo sticks on the soil in front of his house. The informant's husband, Kailash Singh in the meanwhile returned from his field, he saw the hurdle so created and began to remove the bamboos, when the appellant Bablu alias Ranjeet Singh, who appeared on the scene possessing a 'Sabbal' in his hands caused blow with it on the neck of Kailash, due to which, he fell down, when Bablu alias Ranjeet Singh assaulted Kailash Singh with 'Sabbal' on his chest. The informant and the co-villagers tried to take the injured to the Nagra hospital but the injured died on way to the hospital. The incident was alleged to have occurred at 09:00 a.m. (on 10.06.2008). 4. A case was registered at Police Station - Nagra against the appellant-Bablu alias Ranjeet Singh and concerned Check F.I.R. (Ext. Ka-3) was prepared at Case Crime No. 93 of 2008, under Section - 304 I.P.C. On the basis of the entry made in the check F.I.R., relevant entry was also made in the concerned General Diary at Serial No.20 of the aforesaid date at 10:20 a.m. at aforesaid police station - Nagra at aforesaid Case Crime No.93 of 2008, under Section - 304 I.P.C. and a case was registered against appellant-Bablu alias Ranjeet Singh. 5. Consequently, the investigation ensued and was entrusted to P.W.6- Vijay Bahadur Singh. Relevant to mention that after the report had been lodged, Ramesh Chandra Mishra P.W.7 rushed to the spot with relevant papers at P.H.C. Nagra for preparation of inquest report of deceased-Kailash Singh,- son of Jai Mangal Singh and completed the task at 12:05 hours on 10.06.2008. The same has been proved by the aforesaid witness as Ext. Ka-7. Apart from inquest report, he has also proved preparation of relevant papers, say report R.I., specimen seal, letter to C.M.O., photonash, police form no.13 etc. and has proved these papers as Ext. Ka- 8 to Ext. Ka-12. 6. After the inquest report was prepared, the dead body of Kailash Singh was sent for postmortem examination at Sadar Hospital, Ballia, where post-mortem was conducted by Dr. P.K. Singh, Medical Officer at 05:00 p.m. on 10.06.2008, wherein he noted two ante mortem injuries :- 1. Lacerated wound 4 c.m. x 1 c.m. x scalp deep at occipital region of scalp 6.2 c.m. away from right ear. 2. Puncture wound 4 c.m. (four centimeter) x 3 c.m. at the level of right nipple of chest, 2 c.m. medial under neath 3rd, 4th chest rip fracture with laceration of right lung pleura, corresponding to puncture wound thoracic cavity full blood and blood clotted. (2 ½ litres). 7. Cause of death was stated to be shock and haemorrhage as a result of ante mortem chest injury. This post mortem examination report has been proved by the doctor PW-5 as Exhibit Ka-2. 8. (2 ½ litres). 7. Cause of death was stated to be shock and haemorrhage as a result of ante mortem chest injury. This post mortem examination report has been proved by the doctor PW-5 as Exhibit Ka-2. 8. Since the investigation had commenced, the investigating officer (P.W.-6) proceeded to the place of occurrence and after making entry in the case diary, inspected the place of occurrence, prepared the site-plan at the instance of the informant and the witnesses, which site plan is Ext. Ka-5. Apart from that, he also recorded statement of various prosecution witnesses and after completing the investigation filed the charge-sheet (Ext. Ka-6). 9. After committal proceeding, the trial commenced and the prosecution opened its case by stating the charge brought against the accused and the evidence by which it proposes to prove the guilt and after hearing the accused found prima facie case against the accused under Section - 302 I.P.C. and charged him as herein-under :- "That on 10.06.2008, at about 09:00 a.m. in Village - Deoria, P.S. Nagra, District - Ballia, you did an act viz. assaulted by 'Sabbal' on neck and chest of Kailash Singh and by that, you did commit murder by intentionally causing the death of Kailash Singh and thereby committed an offence punishable under Section - 302 of the Indian Penal Code and within the cognizance of this court. in the alternative, the accused was charged as under :- That, on 10.06.2008 at about 9 A.M. in village Deoria, P.S. Nagra, district Ballia, you did an act viz. assaulted by 'SABBAL' on neck and chest of Kailash Singh and by that act, you caused the death of Kailash Singh and thereby you committed an offence of culpable homicide not amounting to murder, punishable under Section - 304 of the Indian Penal Code and within the cognizance of this court. The charge was read over and explained to the accused in Hindi, who abjured the charge and opted for trial." 10. Consequently, the prosecution was required to adduce his testimony. Resultantly, the prosecution produced in all seven witnesses:- P.W.-1, Suman Singh is the wife of the deceased. P.W.-2, Doodh Nath is brother of the deceased. P.W.-3, Vishwanath Singh, he is witness of fact and claims himself to be present at the time of occurrence. All the three witnesses are fact witnesses. P.W.-4 Dr. Resultantly, the prosecution produced in all seven witnesses:- P.W.-1, Suman Singh is the wife of the deceased. P.W.-2, Doodh Nath is brother of the deceased. P.W.-3, Vishwanath Singh, he is witness of fact and claims himself to be present at the time of occurrence. All the three witnesses are fact witnesses. P.W.-4 Dr. P.K. Singh conducted post mortem examination on body of the deceased Kailash Singh. P.W.-5 is Constable Bhagwan Ram who has proved fact of written report being presented by the informant-Suman Singh, wife of deceased, Kailash Singh at the Police Station - Nagra on 10.06.2008 and prepared the Check F.I.R. and noted relevant entry of the same in the concerned G.D. at Serial No.20 and has proved the Check F.I.R. (Ext. Ka-3) and the relevant G.D. (Ext. Ka-4). P.W.6, S.I. Vijay Bahadur Singh is the investigating officer, he conducted the investigation and filed the charge sheet. P.W.-7, S.I. Ramesh Chandra Mishra has prepared the inquest (Exhibit Ka-7) report of deceased-Kailash and has proved it. 11. The evidence for the prosecution was closed and statement of accused-Bablu was recorded under Section - 313 Cr.P.C., wherein he denied the charges and stated in answer to questionaire that he has been falsely implicated in this case, on account of fact that the informant was having illicit relationship with Doodh Nath and the accused had objected to their illicit relationship. He further stated that the informant was younger than 20 years with her husband and in order to eliminate the deceased, these two persons have committed murder and falsely implicated him in the case. 12. The defence has got examined Mukur Dhan as D.W.-1. Thereafter, evidence for the defence was closed and the case was heard on its merit and after appraisal of the evidence and analysis of facts qua circumstances returned the aforesaid finding of conviction under Section - 302 I.P.C. and passed sentence for imprisonment of life coupled with fine with default clause for suffering additional imprisonment for one year, vide judgment and order dated 01.05.2010. 13. Consequently, this appeal. 14. Contention of learned amicus curiae for the appellant proceeds on to claim that in this case the presence of the witnesses of fact on the spot at the time of occurrence, who claimed to have seen the occurrence becomes doubtful. 13. Consequently, this appeal. 14. Contention of learned amicus curiae for the appellant proceeds on to claim that in this case the presence of the witnesses of fact on the spot at the time of occurrence, who claimed to have seen the occurrence becomes doubtful. If the testimony of the informant P.W.-1 taken to be true on the whole, would reflect that she is not telling the truth. In fact no one saw the occurrence and no one was present on the spot. It is admitted position to the prosecution that P.W.2 Doodhnath is the younger brother of the deceased (Kailash) and brother-in-law ('Devar') of the complainant P.W.1 Suman Singh, (wife of the deceased). It so happened that Doodhnath and Suman had developed illicit relationship between them. That was seen by the appellant and he objected to it, due to which both the witnesses were annoyed and they planned to eliminate the deceased from their life consequently they clandestinely committed the offence and involved the present appellant in the offence, whereas, no such incident was caused by him. 15. Apart from that, learned amicus curiae vehemently urged that as per the testimony of P.W.1- the wife of the deceased-she made her signature at the police station in the afternoon on 10.6.2008 whereas the report regarding the incident had been lodged after the occurrence the very same day at 10.20 a.m. 16. In so far as the testimony of the doctor witness (P.W.-4) is concerned that by itself is indicative of fact that concerned injury might have been caused by the fall of the victim and cannot be attributed solely to the act of the appellant. 17. Apart from that learned amicus curiae also brought to our notice the testimony of other prosecution witnesses and claimed the same is fraught with material contradictions. He also claimed that these contradictions are material and hit to the root of the prosecution case. The testimony on record does not inspire confidence. 18. Per contra, Sri Aswani Prakash Tripathi, learned A.G.A. vehemently opposed the contention and replied to the ambit that in so far as the testimony of P.W.1 and P.W.2 is concerned, the same when taken as a whole would establish fact that the act attributed to the appellant was committed by him and the evidence is forthcoming directly. 18. Per contra, Sri Aswani Prakash Tripathi, learned A.G.A. vehemently opposed the contention and replied to the ambit that in so far as the testimony of P.W.1 and P.W.2 is concerned, the same when taken as a whole would establish fact that the act attributed to the appellant was committed by him and the evidence is forthcoming directly. There is no supporting material or circumstances whispering about and working, even in the least, to the hypothesis that there existed some illicit relationship between P.W.1 and P.W.2 and because of that they were involved in the commission of the crime and the appellant was falsely implicated in this case. 19. In so far as the presence of both the witnesses of fact on the spot at the time of occurrence is concerned, the same is most natural and their version of the incident is consistent with the description of occurrence contained in the F.I.R. and so far as the ante-mortem injuries noted by the doctor at the time of postmortem examination of the deceased is concerned, it has been categorically stated by the doctor witness, P.W.-4, P. K. Singh to have been/might have been caused at 09:00 a.m. on 10.06.2008 and that part of the statement remained unchallenged by the defence. Apart from that the learned A.G.A. summed up that the cumulative reading of the facts and circumstances of this case qua testimony reasonably proved beyond doubt guilt of the accused. 20. In the wake of aforesaid submission, the moot point that crops up for determination of this appeal relates to fact whether the prosecution has been able to prove charge under Section - 302 I.P.C. beyond all reasonable doubt ? 21. Now insofar as the merit of this case is concerned, we may begin with the origin of the incident as reported by the informant, wife of deceased (P.W.1 Suman Singh), when she lodged the written report (Ext. Ka-1) at Police Station - Nagra, District - Ballia on 10.06.2008 at 10:20 a.m., wherein she proceeds with the description of the occurrence by claiming that Virendra Singh, Doodhnath Singh and the informant are partners of mango grove, which was rented / sold out for Rs.1,500/- and the sale proceeds was distributed among Kailash Singh, husband of the informant, Doodhnath Singh and Bablu @ Ranjeet Singh in the ratio of Rs.600/-, Rs.500/- and Rs.400/-, respectively. 22. 22. On account of above distribution, Bablu alias Ranjeet Singh son of Virendra Singh felt annoyed, since he was given lesser money in comparison to others, therefore, the accused out of anguish blocked passage of house of deceased-Kailash by placing bamboos and thorny bushes (in front of the door) and thereby tried to close the passage (of the house of deceased). At that point of time, deceased-Kailash Singh had gone for work on his field. When he returned, he began to remove the hurdle so created and began to uproot the bamboos and thorny bushes,- then accused Bablu alias Ranjeet Singh possessing 'Sabbal' (an iron like instrument for digging the soil) in his hand caused blow with it on the neck of deceased-Kailash Singh, due to which, he fell down, then accused dealt another blow on his chest. The deceased was injured. He was taken to the Nagra Hospital but he died on way to the hospital. The report was got scribed and lodged at Police Station - Nagra, District - Ballia (at 10:20 a.m. on 10.06.2008). 23. In the backdrop of aforesaid fact position, we come across the post-mortem examination report Ext. Ka-2, which has been proved by doctor witness P.K. Singh (P.W.-4), whereby he has noted two ante mortem injuries. One injury on the occipital region of scalp 6.2 c.m. away from right ear in the shape of lacerated wound with the dimension 4 c.m. x 1 c.m. x scalp deep and second injury has been described to be punctured wound 4 c.m. x 3 c.m. at the level of right nipple of chest 2 c.m. medial underneath IIIrd and IVth chest rib fracture with laceration of right lungs and pleura corresponding to punctured wound. The post-mortem was conducted at 05:00 p.m. on 10.06.2008, the very same day, wherein the cause of death was shown to be ante mortem chest injury, shock and haemorrhage. 24. In the light of aforesaid fact situation, we proceed further with the scrutiny of testimony of the prosecution witnesses of facts namely, Suman Singh, Doodhnath Singh and Vishwanath Singh, P.W.-1, P.W.-2 and P.W.- 3, respectively. 24. In the light of aforesaid fact situation, we proceed further with the scrutiny of testimony of the prosecution witnesses of facts namely, Suman Singh, Doodhnath Singh and Vishwanath Singh, P.W.-1, P.W.-2 and P.W.- 3, respectively. Insofar as the testimony of these three witnesses of fact is concerned, a cumulative reading of the same would reveal that they have testified to the fact of origin of the controversy to the ambit that the accused Bablu @ Ranjit Singh son of Virendra Singh felt annoyed by unequal distribution of money after the mango grove was rented / sold out, wherein he received his father's share Rs.400/- in all. 25. We may observe that it is a case of eye account testimony of the occurrence and the motive does not carry any importance and holds pivotal point. However, considering the cause of action on issue of distribution of money among three persons, the same is proved to be unequal distribution of money, which in fact caused annoyance to the accused-appellant and served as motive of committing the crime. A cumulative reading of the testimony of aforesaid witnesses of fact is overwhelmingly supporting the case of the prosecution that it was the accused, who put bamboos and thorny bushes in front of house of Kailash Singh and blocked free access to the house, while Kailash Singh was away on his field. When he returned in short while and tried to remove hurdle so created, the accused-appellant appeared on the scene possessing a 'Sabbal' in his hand and gave first blow on the head / neck of the deceased Kailash, due to which, he fell down then another blow was given with 'Sabbal' on the chest of the deceased. 26. Now, insofar as the point of occurrence is concerned, we also gather sufficient corroboration from the independent testimony of Vishwanath Singh (P.W.3), who, at that point of time, claims to have been present on the spot and he was bathing. 26. Now, insofar as the point of occurrence is concerned, we also gather sufficient corroboration from the independent testimony of Vishwanath Singh (P.W.3), who, at that point of time, claims to have been present on the spot and he was bathing. Specific suggestion has been made by the prosecution that the involvement of the appellant has been falsely made by the informant herself, for the reason that she had developed illicit relationship with Doodhnath, her brother-in-law and she was seen/found in objectionable position by the accused and he had threaten to divulge the secret, due to which, both Doodhnath P.W.-1 and the P.W.-1 Suman hatched conspiracy between them and killed Kailash Singh secretly and the accused has been made scapegoat, but the specific suggestion has been denied. 27. We come across testimony of the prosecution witnesses of fact, wherein the suggestion regarding existence of illicit relationship between Suman Singh and Doodhnath has been countered by them and denied specifically. 28. We also come across testimony of defence witness Mukur Dhan- (D.W.- 1). He has testified to the degree that he was threatened by the prosecution witness Doodhnath not to appear as a witness in this case. He has also testified to the fact that both Suman Singh and Doodhnath were inimical towards Bablu alias Ranjeet Singh and he (Bablu-accused) has not killed Kailash Singh. A question put to this witness by asking that Doodhnath and Suman Singh were residing together as wife and husband prior to the occurrence, whereupon, he answered in his examination-in-chief in the affirmative. However, this question was objected by the prosecution as this question being a leading question should normally not to be asked by the counsel of the defence to its witness Mukur Dhan. Therefore, objection raised by the prosecution is liable to be sustained. It being leading question and not of introductory nature cannot be allowed as such. It is contentious on its face. 29. The testimony of D.W.-1 proceeds in the last two-three lines of his examination-in-chief, (as appears on page no.48 of the paper book) that living together of Doodhnath and Suman Singh was objected by the accused. The accused has been falsely implicated in this case. 30. However, in his cross examination, he has testified to the purport and import that he did not disclose this fact to anyone prior to his testimony being recorded in the Court. The accused has been falsely implicated in this case. 30. However, in his cross examination, he has testified to the purport and import that he did not disclose this fact to anyone prior to his testimony being recorded in the Court. Therefore, the testimony of D.W.-1 would not lead us to reasonably infer that in fact there existed any illicit relationship between the informant Suman Singh and her brother-in-law Doodhnath P.W.2 and they hatched a conspiracy and killed Kailash. Moreover, the prevailing and attendant facts and circumstances of this case do not whisper about any such position as has been claimed by the defence. 31. It is noticeable that in the statement of the accused under Section - 313 Cr.P.C., in reply to question no.16 also asserts the same on point of existing illicit relationship that there existed illicit relationship, when objected, the informant herself killed her husband. The informant was 20 years younger to her husband. However, except verbal claim and explanation regarding existing illicit relationship between the informant and Doodhnath, nothing concrete has emerged on the record, which may lead us to reasonably hold that the informant was acting in collusion with Doodhnath P.W.-2 and they jointly created the situation by thus eliminating Kailash and falsely implicating the accused in the offence. 32. P.W.-3 an independent witness of occurrence saw the appellant Bablu alias Ranjeet Singh son of Virendra Singh putting bamboo hurdle in front of door of house of Kailash and blocking access to it. When Kailash returned from his field, he began to remove the bamboo (hurdle), then Bablu alias Ranjeet Singh possessing Sabbal in his hand came out of his house and dealt a blow with Sabbal on the head of Kailash due to which, Kailash fell down and after that, another blow was dealt with the 'Sabbal' by the accused. He proceeds with his testimony with assertion that wife of Kailash and Doodhnath also saw the occurrence. Thus, he substantiates presence of both P.W.-1 & P.W.-2 on the spot at the time of occurrence. He has been cross examined at length, wherein also he has substantiated his testimony as given in his examination-in-chief regarding the manner and style of occurrence. He proceeds with his testimony with assertion that wife of Kailash and Doodhnath also saw the occurrence. Thus, he substantiates presence of both P.W.-1 & P.W.-2 on the spot at the time of occurrence. He has been cross examined at length, wherein also he has substantiated his testimony as given in his examination-in-chief regarding the manner and style of occurrence. He has clarified as to how the Sabbal blow was caused on the deceased by the accused in detail, nothing adverse has emerged in his entire testimony, which may cast aspersion that this witness is not telling the truth or is a interested witness from any corner. On the contrary, his testimony being independent inspires confidence and gives further thrust to the testimony of the other two witnesses of fact P.W.1-Suman Singh and P.W.-2 Doodhnath Singh. 33. Insofar as the ocular testimony when read with the ante mortem injury noted in the post mortem examination report is concerned, we come across fact that the ocular testimony of the occurrence and the injuries caused by the accused commensurates with the description of ante mortem injuries and the piece of testimony of P.W.-4 Dr. P.K. Singh also gives further thrust to the prosecution case, when he testifies to the ambit that these injuries were sufficient in ordinary course of nature to cause death and injuries could have been caused around 09:00 a.m. on 10.06.2008. However, this particular piece of testimony emerging in the last paragraph of the examination-in-chief of the doctor has not been put to challenge even in the least by the defence. Therefore, this testimony regarding the time when injuries have been caused is unimpeachable testimony. Similarly, F.I.R. has been promptly lodged and the factum of F.I.R. being lodged by the informant Suman Singh at the police station has been substantiated by P.W.-5 Bhagwan Ram, who prepared the check F.I.R. and made a consequential entry in the concerned general diary at Serial No. 20 at Police Station - Nagra on 10.06.2008 and has proved the Check F.I.R. as Ext. Ka-3 and the general diary entry, whereby the case was registered at Case Crime No. 93 of 2008, under Section - 304 I.P.C. as Ext. Ka-4. Learned amicus curiae also argued to the ambit that in this case the conviction of the appellant under Section - 302 I.P.C. is not justified. 34. Ka-3 and the general diary entry, whereby the case was registered at Case Crime No. 93 of 2008, under Section - 304 I.P.C. as Ext. Ka-4. Learned amicus curiae also argued to the ambit that in this case the conviction of the appellant under Section - 302 I.P.C. is not justified. 34. In reply to the same, learned A.G.A. has stated that insofar as the act of the appellant is concerned, it was pre planned and it cannot be said that it was a case of sudden quarrel but the origin of the crisis was created by none other than the accused himself by putting hurdle in free passage from and to the house of deceased-Kailash by putting bamboo barrier in front of his house. That being the case under circumstances at that point of time, when the deceased was removing the bamboos, the offence was committed by the accused. The accused caused blow with Sabbal on the head and chest of the deceased. The doctor has rightly opined that the injury so caused was sufficient in the natural course to cause death. The reply so given is sustained. 35. Therefore, it cannot be said that it is a case of sudden quarrel as such the accused cannot get advantage of his own misdeed, which alone culminated into death of the deceased. Insofar as the investigation of the case is concerned, the investigating officer has also proved the site plan (Ext. Ka-5), whereby place 'X' has been shown as the place where the 'Sabbal' blow was stated to have been dealt by the accused on the deceased Kailash Singh. Apart from that, other places have also been spotted by the investigating officer and that being the case, we find no flaw in the investigation conducted by the investigating officer. The investigating officer has proved the charge sheet-Exhibit Ka-6. 36. Insofar as certain improvement/embellishments appearing in the testimony of prosecution witnesses of fact, particularly P.W.1- Suman Singh and P.W.-2 Doodhnath, are concerned, the same do not affect totality of the case but the same touch upon peripheral aspects of this case and the core substance stands proved by the prosecution beyond reasonable doubt, resultantly the finding of conviction recorded by the lower court against the appellant for committing offence under Section - 302 I.P.C. is liable to be sustained. 37. 37. The above analysis of the facts and circumstances of the case on record goes to show that the trial court was justified in recording the finding of conviction thus imposing sentence of life imprisonment by the impugned judgment and order dated 01.05.2010. 38. Accordingly, we uphold judgement and order of conviction dated 01.05.2010 passed by the Special/Additional Sessions Judge, Ballia in Session Trial No.187 of 2008, arising out of Case Crime No.93 of 2008, under Section - 302 I.P.C., Police Station - Nagra, District - Ballia. 39. In the result, the instant appeal being devoid of merit is dismissed. 40. In this case, the appellant is in jail. He shall serve out remaining part of sentence imposed upon him by the trial court. 41. Let a copy of this judgment/order be certified to the court concerned for necessary informant and follow up action.