C.M. Totla, J.
1. Challenged is appellant's conviction for the offence of Section 302 IPC and awarded sentence of life imprisonment with fine Rs. 500/-.
2. Appeal No. 387/03 is preferred by jail, whereas appeal No. 513/03 is representative appeal, both these appeals are being decided by this judgment.
3. Sequence of events, per prosecution, is that at about 2 A.M. in intervening night between August 14th & 15th, 02, appellant Sanwarmal S/o. Heeralal himself coming police station Pilibanga, orally told the then Incharge Sub-Inspector Kailashdan PW 7 that he and his brother Bhanwarlal came there at Mandi Pilibanga 10-12 years ago and both doing work of Halwai (confectioners), used to live at Shyam Misthan Bhandar and go for work as and when available, otherwise working and sleeping at above shop, subsequently also came at Pilibanga Bhanwarlal Nai (PW 4) and Nandu Panwar (deceased) of their village who learnt work from appellant and his brother and then as Nandu learnt work well he ' feeding wrong to shop owner Ramkumar, got them (appellant and brother) expelled and also creating dispute between brothers he (Nandu) lived there (shop). Narrated that thereafter, appellant resided in rented room and not having any work he (appellant) on that night, at about 9.30-10.00 O'clock, (the appellant) went to Nandu for securing some work, where also was Bahnwarlal Nai and he told Nandu for giving some work to him but Nandu declining told him to go back so appellant walked annoyingly with a thinking that he (Nandu) who learnt work from them but created difference between him and brother and expelling him from shop, deprived him of job, and so thinking he (appellant) arrived near teen batti Chowk, where finding a stone lump, picked it up, then coming back to shop and as hotel was closed, set at nearby bench. Soon conversation between Nandu and Bhanwarlal, at roof of the shop, ceased and he thinking that they have slept and as time 12.00 ' 12.30 he (appellant) with stone lump went upstairs at roof, where Nandu and Bhanwarlal both were sleeping, and he forcelly gave blow of stone at head of Nandu who giving a cry, 'aa....' became silent, also woke up Bhanwarlal so appellant coming down, hide himself and Bhanwarlal, when Nandu did not respond his calls went towards house of shop owner he (appellant) going again on roof uttered and tried to talk Nandu who not replied and was dead and he himself has come to the police station. PW 7 recording this statement and on it registered FIR No. 280/02 Ex. P14 for the offence of Section 302 IPC, and making entry in roznamcha, proceeded to place of occurrence. PW 7, investigating and in presence of shop owner PW 1 and other witnesses (i) inspecting place of occurrence, prepared site memo and plan Ex. P1, Ex. P1A, examining the dead body, prepared memos Exs. P2 and P3 (ii) there at roof of the shop was spread blood, sample of which and also of some pieces of plain floor collected and sealed vide memos Exs. P4 and P5 and packets marked as A and B, (iii) collected and sealed blood stained shirt, baniyan and khes (baed sheet) at the time of post mortem of deceased packet marked as D and memo Ex. P6, (iv) appellant arrested on that very day at 11.10 A.M. and his worn pant and shirt seized and sealed packet E - memos are Exs. P15 and P7. (v) Per disclosure of appellant accused, Exs. P16 and at his instance, from below a small water tank (tanker) of cement having some blood stains, recovered and sealed blood stained stone of about 10' x 6' - packet marked as C memo prepared is Ex. P8 with site plan and descriptive memos Ex. P9 and 9A.
4. Post-mortem conducted by doctor medical officer PW 3 at 10.30 A.M. and prepared report Ex. P11. Deceased had one injury at head with fracture of temporal occipital bone which resulted in death.
5. Above entire investigation finished on that very day. Keeping the packets of articles safe in malkhana, same were delivered intactly at FSL. After completing investigation, charge-sheet submitted.
6. FSL examination report Ex. P19 describe that stone, clothes of deceased and sample collected contained human blood.
7. Appellant is charged that he on August 15, 2002 at about 12.00 ' 12.30 in night at the roof of shop Shyam Misthan Bhandar with intention of causing death of sleeping Nandu, inflicting a severe blow of stone at his head, caused his death ' claimed trial.
8. Among the 8 prosecution witnesses examined, Bhanwarlal Nai PW 4 is eye witness. Shop owner, Ramkumar PW 15 and brother of appellant Bhanwarlal PW 6 are declared hostile. Sub-Inspector the then incharge SHO PW 7 recorded FIR and did all as above in course of investigation. Lekhram PW 5 head constable malkhana incharge and PW 8 Kaur Singh constable pertain to safe keeping and delivering articles at lab. Dr. Hari Om PW 3 conducting post-mortem prepared report Ex. P11.
9. Appellant explains that witnesses are telling lie ' appellant also denies of having reported the matter at police station, accepting arrest and denying recovery, states of his false implication.
10. Learned Sessions Judge arriving at conclusions that accused with intention of causing death inflicted injuries and caused death of Nandu, convicted and sentenced.
11. Learned Counsel appearing on behalf of the appellant argues that there is no evidence disclosing causing of injury by appellant. Argues that evidence of Bhanwarlal PW 4 is not worthy acceptance and had he seen the incident, he must have intervened and at least rushed Nandu to hospital and/or tried to report the matter at police station. Argues that FIR , allegedly orally tendered, by appellant is not admissible and cannot be used against the appellant. Thrustly contended that contents of FIR lodged by appellant himself are not admissible in evidence against appellant whereas learned trial judge has relied upon it. Lastly and in alternative submits that if appellant inflicted injury this was because of sudden provocation (as a result of annoyance) given by deceased himself and act of the accused not was with intention or any knowledge of causing death so the act within Section 325 or maximum may come within Section 304 Part II IPC.
12. Learned Public Prosecutor contends that report of incident is lodged by appellant himself and PW 4 was sleeping with the deceased, have and, naturally have seen the incident. Argues that injuries though only one but was so grave and given by a heavy object and force, so definite to the knowledge of appellant of the nature bound to cause death.
13. Giving thoughtful considerations, we have carefully examined record, the judgment assailed and also memo of appeal and record.
14. A look at evidence of PWs 1, 2, 4 and 7 make clear that deceased Nandu was found dead (at roof) at about 2.00 A.M. and he died of injuries inflicted on him during this night. PW 7 also found the dead body at about 2.30 A.M.
15. From oral evidence, established is that deceased was severely injured at head. Per testimony of medical officer PW 3 and as described in post-mortem report Ex. P11, stands proved that Nandu had injury -
lacerated wound 3 x 1 x 1 cm at infero post region on right ear ' bleeding from right ear ' found was fracture of temporal bone of horizontal on right side. Also proved is that death of Nandu by this injury in night intervening 14th and 15th. Per doctor, this injury of blunt object in normal course was sufficient to cause death.
16. Sub-Inspector PW 7 testifies that as SHO was out so he was incharge and that information given by appellant at 2.00 A.M. ,recorded as Ex. P14, was read over to appellant who accepting it to be true, signed it. Further stands proved that in course of investigation, inspecting place of incident, the dead body examined and samples along with blood stained clothes seized and sealed as above.
17. Registration of FIR Ex. P14 is also proved.
18. The information is recorded by a police official and lodger is appellant himself.
19. First argument is regarding admissibility and evidentiary value of FIR lodged by appellant accused. Provisions regarding it also are in evidence Act. On a careful perusal of relevant provisions and is elaborately held in various pronouncements, it clearly precipitates that confessional part whatever in the shape of FIR cannot be read and used against the appellant. Therefore, of the FIR, as narrated above, the portion which incriminates appellants, including as to how and why incident occurred may not be admissible.
20. When on statement of accused, FIR is registered and the same contains incriminating material which cannot be separated from exculpatory portion then all of it is to be excluded. However, with reasonable safeguards and caution can be said that if any discovery is made as a result of such statement (FIR), then the same and only per provisions of evidence, the distinct portion leading to exclusive discovery is admissible in evidence. Thus, if on a distinctly separable portion of the statement FIR, a fact is discovered, this specific part is admissible.
21. In addition, FIR is not substantive evidence and can only be used for corroboration or contradiction of the maker but not as confessional statement of the maker.
22. Sub-Inspector PW 7 says that he arriving at place of occurrence and inspecting, also prepared memos of state of body of deceased, Exs. P2 and 3. Thus, appears that at the given place the roof, found was dead body of Nandu. Exs. P2 and 3 bear signatures of PWs 1, 2, 4 and also some others. PW 1 says that around 1.00 A.M., Bhanwarlal Nai came and told that Nandu bleeding and so he went and found that Nandu lying in such state and police personnels came soon after. PW 2 also says that he and 2-3 others were present and then came police personnels. Bhanwarlal PW 4 the person who was sleeping with deceased says that soon after the occurrence at about 12 ' 1.00 O'clock, he runningly went to owner of the shop PW 1 and came back with him and after a little time there also came police personnels. As such, it also is that before Sub-Inspector PW 7 arrived at the spot, other persons were there. Therefore, cannot be provenly said that this fact was discovered only on disclosure of appellant. However, looking to all over evidence appreciation of which follows, this is inconsequential.
23. For the reasons mentioned above, on the basis of FIR adverse inference regarding motive and reason also on the basis of FIR cannot be.
24. Bhanwarlal PW 6 is the brother of appellant states appellant and deceased working at shop of PW 1 and states ignorance of any interallegation and dispute between appellant and Nandu. However, Bhanwarlal PW 6 accepts that the appellant and also deceased were working at the shop of Shyam Misthan Bhandar. Bhanwarlal S/o. Ramu Ram PW 4 deposes that appellant and his brother were living at Pilibanga and working at confection shop of Ramkumar since long years, then he and Nandu also came there and began working but appellant fell in bad habits so expelled by the shop owner PW 1. PW 4 states that he and Nandu continued working there at shop but appellant was annoyed because of his removal who also once or twice had hot exchanges with Nandu. PW 4 deposes that at 10 O'clock in night, he and Nandu were together, came there appellant and they all were smoking when appellant told them for procuring or giving him (appellant) some work and as Nandu replied of non-availability of any work, the appellant annoyed went away, then this witness and Nandu were on shop at roof. PW 4 narrates that at about 12-1 O'clock in night on hearing sounds like 'Aa Aa Aa Aa' he woke up and observed that appellant Sanwla was having a big stone in his hand and as this witness tried to stand up, the appellant went down . Then PW 4 saw bleeding injury at right head to Nandu and as Nandu did not respond to his calling, he (PW 4) hurriedly went and called Ramkumar and by the time they returned, Nandu was dead. In cross-examination, disclose that house of Ramkumar is about one and half km and they were working at the shop since some years and had no quarrel with appellant. Only eye witness PW 4 assertively deposes that in night he observed the incident as above. May be mentioned here that there is no reason whatsoever to disbelieve any part of narration given by PW 4. As is mentioned, PW 1 the shop owner, clearly says that as Bhanwarlal called him, he immediately went there with PW 2 and saw Nandu dead because of injuries.
25. Appellant was arrested at 11.00 A.M. Sub-Inspector PW 7 states that appellant told him that the stone lump is concealed below a water tank ahead of godown of Ramesh, the information Ex. P16 bears signature of accused appellant and PW 7 further says that, appellant leading them, they went beyond godown of Ramesh, where from below a cement tanki, accused took out a stone which seized and sealed making Ex. P8 which also bears signatures of appellant and others. PW 1 says that police collected some stones and Ex. P8 bears his signature. Sarwan Kumar PW 2 specifically mentions that at the instance of accused, a stone from below the water tank was recovered and Ex. P8 bears his signatures. Thus, proved is that stone having some blood like stains, was there to knowledge of appellant and recovered at his information.
26. Considering evidence of PW 7 head constable malkhana incharge PW 5 and constable PW 8 together is proved that on 15.8.02, all the packets were deposited in malkhana and making entry in malkhana register, same were kept safely and PW 8 taking packets on 27.8.02 and with forwarding letter, delivered intactly at lab. Report Ex. P19 establishes that on the blood stained pieces of floor taken from the place of incident and on clothes of deceased and also on recovered stone was human blood - group could not be detected. Though blood group could not be determined, but still much and material significant is that on the stone recovered on the disclosure and at the instance of the accused, had human blood-and as is observed, stone was recovered on the very same day maximum within 10-12 hours of the incident. The stone is exhibited as Article 6. This recovery fully supports and corroborates, if needed, evidence of PW 4.
27. Thus is proved that the appellant inflicting injury of stone at head of the deceased cause his death.
28. Now coming to question whether the act amounts to murder it appears that though injury caused is at head, but was one and as above by a stone. Transpires from the evidence of PW 4 that he, deceased and appellant all were working as halwais for last some years and all in some way attached to a common shop. PW 4 specifies that in night around 10, appellant came and requested for providing some job to him then as deceased declined, appellant annoyingly (not provocation) went away. PW 1 also depose that these persons doing such work if and when not having other such assignments some times worked at his confectionery shop. These circumstances lead to inference that appellant caused injury and consequential death of Nandu but he ever intended death. No second injury is attempted. Medical officer in cross-examination state that he unable to say if death was preventable., Appellant soon after in slow voice attempted to speak deceased which tend to show perhaps his inclination to help somehow. All this cumulatively taken fortify that the appellant neither intended to cause nor knew that the injury was so dangerous as is in all probability enough to cause death. But also the injury inflicted is at head and of a hard object stone so had every knowledge and reason to believe of causing such bodily injury as was likely to cause death. Therefore, the act comes within ambit of Section 304 Part I IPC.
29. Regarding sentence established is that deceased as well as appellant were living away from their native village for earning, all were attached to same confectionery shop and doing same nature of work, and other circumstances leading incident are as above. Appellant distressed of being jobless and deceased few hours earlier declined to help him in getting or providing job. Appellant in custody since August, 02, that is nearing eight years and without remission, so in the opinion of the Court, in the totality of factors, it will be just and appropriate to sentence appellant with eight years rigorous imprisonment and fine Rs. 1000/-, in default to undergone four months rigorous imprisonment.
30. For the reasons as above, conviction of the appellant is to be altered to that of Section 304 Part I IPC and seems appropriate sentence of eight years with fine Rs. 1000/-.
31. Accordingly both the appeals are to be partly allowed. While acquitting appellant Sanwarmal S/o. Heera Ram for the charge of Section 302 IPC he (Sanwarmal S/o. Heera Ram) is convicted for the offence of Section 304 Part I IPC and is sentenced to eight years rigorous imprisonment with fine Rs. 1000/- in default of payment further four months rigorous imprisonment. .
32. As above both the appeals stand partly allowed.