S.K.Kaul, J. - (1.) THIS is an appeal by Kamta against his sentence and conviction to undergo 7 years' R. I. under Section 304 Part I, IPC as awarded to him by learned Sessions Judge, Hardoi.
(2.) BEFORE taking up the facts of this case, I would like to mention that at the time of Mahabharat, the famous epic of our country, when Arjuna showed his disinclination to take part in the fight as he found his near and dear ones arrayed on the opposite side lest he might be the instrument in their killing, Lord Krishna, apart from teaching him and all of us the knowledge contained in Gita, remarked that man is only an instrument of the happenings that take place in the world and birth and death are determined by the will of God. This unfortunate case is an example of the above preachings of Lord Krishna. The accused appellant stood trial for committing murder of his own elder brother. The story is that Mendai, father of the accused, deceased and witness Ghurai, used to live with Ghurai in village Saidapur. Deceased Chutta and accused Kamta resided in adjacent houses. In fact, the houses of three brothers were separate. In front of the houses of the accused and the deceased, was an open space, lying to the east. To the south of the aforesaid land stood Chaupal of Ghurai. To the south of the aforesaid Chaupal, there is again an open space which continued to be joint of the three brothers. Some Andi plants stood on this joint land. On this unfortunate date namely, 30th of June, 1975 accused Kamta cut three Andi plants in connection with his Chappar at about 9 a.m. Smt. Lalkora, wife of deceased Chutta, now widow for the acts of the accused, protested. This was responsible for an exchange of abuses between Smt. Lalkora, on one hand and Kamta, on the other. Ghurai at that time was ploughing his field which was close to the land. Hearing these abuses, he asked, from that very place, Kamta and Smt. Lalkora not to quarrel, but his advice was unheeded. Chutta deceased was also ploughing the same field on the northern side. He came back to his house. Smt Lalkora complained of what the accused had done. Chutta remostrated to the accused and then ensued an altercation accompanied by exchange of abuses between Kamta and Chutta. Chutta went a few steps towards the accused and then the accused taking out a tamancha from the folds of his Dhoti, shot at Chutta from a very close range on account of which Chutta dropped down dead. This incident, apart from Smt. Lalkora and Ghurai, was also witnessed by Munni Devi daughter of Chutta. Ghurai went to Police Station Sandi and lodged a report about this occurrence on the same date at about 10 a.m. Mahadeo Singh Station Officer, Sandi took up investigation. He reached the spot on the same date at about 11 a.m. He found the dead body of Chutta lying on the ground at the scene of occurrence. He prepared an inquest report relating to the dead body, and after sealing the same he sent it for autopsy. Mahadeo Singh interrogated witnesses. He also found two tiklis on the spot. He took possession over the same sealed them in a packet and prepared a memo accordingly. Autopsy upon the dead body of Chutta was conducted by Dr. Verma Medical Officer, District Hospital, Hardoi, on 1st of July, 75. The following ante-mortem injury was found upon the dead body : Multiple gunshot wounds .25 cm x .25 cm to .25 cm x .35 cm muscle to chest cavity deep on the front of left side of chest, left shoulder and upper part of left arm in an area of 25 cm x 22 cms. Margins of the wound were inverted and lacerated. There was no blackening or tatooing around the wounds. The direction of the wound was posteriorly, slightly to the right. The internal examination revealed 2nd and 3rd ribs on the right side to have been fractured. Five small pellets were recovered from the muscles. Pleura was punctured on both sides. Chest cavity contained about half pound of blood and fourteen pellets were recovered from this place. Right lung was punctured at four places. Left lung was punctured at multiple places. Six small pellets were recovered from this place. Pere cardium was punctured at two places. Stomach contained about two ounces of watery fluid. The opinion of Dr. Verma was that death was caused due to shock and haemorrhage as a result of firearm injury which, in his view, was sufficient in the ordinary course to cause death. The accused was not to be found by the investigating officer. He was absconding. On 10th July, 1975 Mahadeo Singh Investigating Officer gave report to the Magistrate concerned for taking proceedings under Sections 82/83 CrPC. However the accused surrendered in the court on 24th of July, 1975. On completing investigation, a charge sheet was submitted against the accused under Section 302 IPC.
(3.) THE accused denied having anything to do with the occurrence. He admitted, however, that on the date of incident, he had cut three Andi plants from the joint land. He also admitted that on that account there was exchange of abuses between him and Smt. Lalkora. He also admitted that when his brother Chutta came, there was an exchange of abuses between him and Chutta. His case was that while this wordy war was going on between him and others, some body from the crowd which had collected had shot at Chutta. A suggestion was also made by the accused that the deceased had advanced towards him with a Kanta in his hand and in his defence, he had shot at the deceased. We may note here that the suggestion thrown to the witnesses was that the deceased had advanced towards the accused with a Danda. The learned Sessions Judge, on an appraisement of evidence found that the accused was responsible for committing the murder of his own brother without any rhyme or reason and that he had no right of self defence in inflicting the injury upon the deceased. He, however, looking to the antecedents, observed that the case would fall under Section 304 Part I, IPC rather than under Section 302 of the Indian Penal Code. In that view of the matter, he sentenced and convicted the accused as above.;