# Anil Kumar v. State of U.P

- **Citation:** (2022) 9 ILRA 96
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-14
- **Case number:** Criminal Appeal No. 922 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-v-state-of-u-p-49290
- **Pages:** 11

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 299,300, 302,304
- Culpable
homicide - murder - Culpable homicide not
amounting
to
murder
-
Distinctions
between
normal
discrepancies
and
material discrepancies - testimony of a
witness in a criminal trial cannot be
discarded merely because the witness is a
relative or family member of the victim of
the
offence
-
merely
because
the
prosecution
did
not
examine
any
independent
witness,
would
not
necessarily
lead
to
conclusion
that
accused was falsely implicated. (Para -
42,43 )

Incident not pre-motivated - result sudden
quarrel - deprived of power of self control and
sudden provocation - accused offender caused
death of his wife - deceased gave provocation -
ocular evidence - when deceased came to shop
of accused - quarrel took place between the
two - accuded depriving of the power of the
self control by grave and sudden provocation -
committed the crime with the intention of
causing death of the deceased - evidence of
eye-witnesses P.W.1(son - labourer)) and P.W.2
(mother of deceased - illiterate) - reliable and
trustworthy witnesses - evidence found credible
and acceptable - conviction under section
section 302 - hence appeal. (Para - 53)

(B) Evidence Law - Law of Evidence does
not mean if a witness makes one or two
confusing or contradictory statements
during his lengthy cross examination, the
rest of his evidence may be discarded -
evidence adduced of a witness should be
taken as a whole - hostile witness - if the
prosecution witness has turned hostile,
the Court may rely upon so much of his
testimony which supports the case of the
prosecution and is corroborated by other
evidence. (Para - 27,32)

HELD:-Conviction of appellant under Section
302 of Indian Penal Code converted to
9 All. Anil Kumar Vs. State of U.P.
97
conviction under Section 304 (Part I) of Indian
Penal Code.(Para -56 )

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

## Text

96 INDIAN LAW REPORTS ALLAHABAD SERIES
stand cancelled and they be taken into
custody for serving the remaining sentence.

57. However, it is provided that it
shall be open for the accused appellants to
approach the State Government, which may
consider the request of permanent release
of the accused-appellants after calling for
reports
from
the
Jail
Superintendent
concerned qua total period of their
incarceration with remission, seeing the
facts that the incident in question took
place in September, 1977, judgment of
conviction was passed in September, 1978,
the accused-appellants had been in jail for
more than 13 years (from 1977 to 15th
May, 1991 i.e. the date of order of the High
Court in the present appeal granting bail to
the appellants), their work and conduct
during their incarceration, now they are
very old and weak.

58. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.
----------
(2022) 9 ILRA 96
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 922 of 2013

Anil Kumar ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Bhuvnesh Kumar Singh, Sri Ashfaq
Ahmed Ansari, Sri Jai Shanker Malviya

Counsel for the Respondent:
Govt. Advocate

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 299,300, 302,304
- Culpable
homicide - murder - Culpable homicide not
amounting
to
murder
-
Distinctions
between
normal
discrepancies
and
material discrepancies - testimony of a
witness in a criminal trial cannot be
discarded merely because the witness is a
relative or family member of the victim of
the
offence
-
merely
because
the
prosecution
did
not
examine
any
independent
witness,
would
not
necessarily
lead
to
conclusion
that
accused was falsely implicated. (Para -
42,43 )

Incident not pre-motivated - result sudden
quarrel - deprived of power of self control and
sudden provocation - accused offender caused
death of his wife - deceased gave provocation -
ocular evidence - when deceased came to shop
of accused - quarrel took place between the
two - accuded depriving of the power of the
self control by grave and sudden provocation -
committed the crime with the intention of
causing death of the deceased - evidence of
eye-witnesses P.W.1(son - labourer)) and P.W.2
(mother of deceased - illiterate) - reliable and
trustworthy witnesses - evidence found credible
and acceptable - conviction under section
section 302 - hence appeal. (Para - 53)

(B) Evidence Law - Law of Evidence does
not mean if a witness makes one or two
confusing or contradictory statements
during his lengthy cross examination, the
rest of his evidence may be discarded -
evidence adduced of a witness should be
taken as a whole - hostile witness - if the
prosecution witness has turned hostile,
the Court may rely upon so much of his
testimony which supports the case of the
prosecution and is corroborated by other
evidence. (Para - 27,32)

HELD:-Conviction of appellant under Section
302 of Indian Penal Code converted to
9 All. Anil Kumar Vs. State of U.P.
97
conviction under Section 304 (Part I) of Indian
Penal Code.(Para -56 )

Criminal appeal partly allowed. (E-7)

List of Cases cited:-

1. Jaishree Yadav Vs St. of U.P., (2005) 9 SCC
788 (F)

2. Ashok Kumar Chaudhary. Vs St. of Bihar,
2008 (61) ACC 972 (SC)

3. Sidhartha Vashisht @ Manu Sharma Vs St.
(NCT of Delhi), 2010 (69) ACC 833 (Supreme
Court)

4. Mukesh Vs St. for NCT of Delhi & Ors., AIR
2017 SC 2161

5. Bhagwan Jagannath Markad Vs St. of Maha. ,
(2016) 10 SCC 537

6. Surinder Kumar Vs St. of Punj., (2020) 2 SCC
563

7. Tukaram & Ors. Vs St. of Maha., (2011) 4
SCC 250

8. B.N. Kavatakar & Anr. Vs St. of Karn., 1994
SUPP (1) SCC 304

(Delivered by Hon'ble Nalin Kumar
Srivastava, J.)

1. The additional Sessions Judge, Court
No. 9, Bijnor passed judgment and order of
conviction dated 12.02.2013 against the
accused/ appellant Anil Kumar in Sessions Trial
no. 837 of 2010 (State Vs. Anil Kumar) under
Section 302 I.P.C (arising out of case crime
no.290/2010), P.S.-Mandawar, District-Bijnor
and sentenced to him to undergo life
imprisonment and further imposed fine of
Rs.20,000/- and in default six months additional
simple imprisonment, hence this appeal.

2. As per the case of prosecution
deceased Archana, daughter of informant
Jai Prakash, who had a betel shop, was
married with accused-Anil Kumar about 15
years before the occurrence. Accused used
to make a demand of Rs.5 lac for his
business. On 18.8.2010 at about 5.00 p.m.
when Archana went to the shop of accused
to take a gas cylinder, a quarrel took place
between the accused and the deceased and
accused inflicted injury upon the deceased
with Patal (a sharp edged weapon).
Meanwhile Jai Prakash-informant, Jaiwati
wife of informant and his son Govind
Kumar came on the spot and the accused
fled away with the murder weapon. A
written report Ex.A-17 regarding the
occurrence was given to the police station
by the informant Jai Prakash on 18.08.2010
at 18.10 p.m. on the basis of which chick
FIR Ex.A-8 was registered and G.D. Ex.A9 was prepared and investigation of the
case started. Smt. Archana died of the
injuries during treatment. The I.O. recorded
the statements of eye-witnesses, informant
and other witnesses. The inquest report
Ex.A-2 and the papers required for post
mortem Ex. A-3 to A-7 were prepared by
S.I.
Ram
Kishun
Manik.
During
investigation the accused was arrested with
the murder weapon, which was blood
stained, by the I.O. The victim of the
occurrence was examined by doctor Anuj
Kumar
at
District-Ghaziabad
on
18.08.2010, who prepared the injury report
Ex.A-10 and found following injuries on
the body of the deceased:

1. Incised wound starting from
outer angle of left eye up to whole lenth of
back of neck and root of neck about 50.0 x
10. cm. bone deep whole part of muscle
and skin is visible. Bleeding present.

2. I.W. 7.0 x 3.0 cm. on joint of
left shoulder. Bleeding present.

3. Left hand is chopped up from
wrist joint, hand is not present. Bone and
98 INDIAN LAW REPORTS ALLAHABAD SERIES
muscle are exposed at wrist joint. Bleeding
Present.

4. I.W. 12.0 x 7.0 cm muscle deep
over right breast joint above nipple. fat of
breast is exposed.

5. I.W. 10.0 x 3.5 cm. over right
abdomen 5.0 cm from umblicus 10 o'clock
position. Bleeding present

6. I.W. 6.0 x 1.5 cm. on upper
aspect of right upper arm.

7. I.W. 3.0 x 1.5 cm over back of
right fore arm. 5.0 cm above wrist joint.

8. I.W. 10.0 x 6.0 x bone deep fist
cut right knee joint over bone is also cut.

3. During examination the injured
died on 18.10.2010 at 6.50 p.m. The doctor
opined that injury no.3 and 4 were grievous
in nature and rest of the injuries were
simple injuries. The injuries were fresh and
caused by sharp edged object.

4. The autopsy of the deceased was
conducted by doctor Bhoj Raj Singh on
19.8.2010 at 2.00 p.m. who prepared
autopsy report Ex.A-1 and found following
anti mortem injuries on the body of the
deceased:

1. I.W. Over left temporal area,
above
ear,
extending
downward
and
posteriorly up to occipital area, measuring
29.0 cm x 2.0 cm, bone deep.

2. I.W. over left side of root of
neck, going back of neck and upto root of
neck on right side, 5.0 cms below ears on
both sides, measuring 32.0 x 3.0 cms bone
deep.

3. I.W. over top of left shoulder,
5.0 x 2.0 cms, muscle deep.

4. I.W. over back of neck on right
side, 4.0 x 2.0 cms ears, bone deep , 2.0
cms above injury N.O. 2.

5. I.W. over top of right shoulder ,
muscle deep, 4.0 x3.0 cms.

6. I.W. over right breast, 15.0 x
9.0 cms, bone deep with skin and muscles
absent.

7. I.W. over outer aspect of right
arm, 5.0 x 2.0 cms, muscle deep, 13.0 cms
above elbow joint.

8. I.W. over post aspect (back) of
lower part of right fore arm, 3.0. x 2.0 cms
muscle deep, 6.0 cms above wrist joint.

9. I.W. over right lateral aspect of
lower part of chest and anterior abdominal
wall, 20.0 x 4.0 cms, muscle deep.

10. I.W. over anterior abdominal
wall, 8.0 x 5.0 cms, 10. cms below injury
no.9.

11. Left palm is separate from
limb at wrist joint. I.W. over stump of
upper limb at wrist joint, 8.0 x 5.0 cms. and
over the stump of palm 8.0 x 6.0 cms.

12. I.W. over dorsum of left palm,
5.0 x 0.5 cm, skin deep, 1.5 cm above the
roots of middle and ring finger.

13. I.W. over front of right knee
joint, 17.0 x 4.0 cms. with cut of upper part
of tibial bone, bone deep.

5. The doctor found that the rigor
mortis was present in all four limbs, gases
and fecal material in both intestine were
present, liver was pale, gal bladder was
empty, uterus empty, both sides of heart
empty, both lungs pale, 200 gm food
material present in stomach. The doctor
opined that the death was caused due to
shock and hemorrhage as a result of anti
mortem injuries about one day ago.

6. The I.O. inspected the spot on
pointing out of the informant and prepared
site plan Ex.A-11, plain and blood stained
earth were also collected from the spot by
the I.O. and a memo Ex.A-12 was
prepared. After investigation charge sheet
A-14 was submitted into the Court.
9 All. Anil Kumar Vs. State of U.P.
99

7. The accused appeared before the
Court and the case being a Sessions triable
case, it was committed to the Court of
Sessions. Charge under Section 302 I.P.C.
was framed against the accused who denied
of the charge and claimed to the tried.

8. To bring home the guilt of the
accused the prosecution has examined
P.W.1 Govind Kumar eye-witness, P.W.2
Smt. Jaiwati eye witness, P.W.3 Dr. Bhoj
Raj Singh, P.W.4 Con. Vijay Pal, P.W.5 S.I.
Ram Kishan Manik witness of the inquest
report, P.W.6 Cons. Omkar Singh Scribe of
the Chick FIR and G.D. P.W.7 Dr. Anuj
Kumar, P.W.8 S.S.I. Sunil Kumar Sharma,
P.W.9 Jai Prakash informant and P.W.10
Amit Kumar Scribe of the written report as
oral evidence.

9.

The
documentary
evidence
produced consisted of autopsy report Ex.A1, inquest report Ex.A-2, photo nash Ex.A3, chalan nash Ex.A-4, letter to C.M.O
Ex.A-5, letter to R.I. Ex.A-6, specimen seal
Ex.A-7, chick FIR Ex.A-8, G.D. Ex.A-9,
injury report Ex.A-10, site plan Ex.A-11,
recovery memo, plain and blood stained
earth Ex.A-12, memo of recovery of
murder weapon Ex.A-13, charge sheet
Ex.A-14, F.S.L reports Ex.A-15 and

10. The statement of accused was
recorded under Section 313 Cr.P.C. who
claimed his false implication on the basis of
forged story and has denied his any kind of
involvement in the crime, however no
evidence in defence has been adduced by
the accused.

11. Heard learned advocates for the
parties.

12. P.W.1 Govind Kumar is said to be
the
eyewitness
of
the
occurrence.
Corroborating the prosecution versions, he
has stated in his deposition that his sister
Archana was married to the accused Anil
before 14-15 years. The accused used to
live with them and had a betel shop. He had
made a demand of Rs.5 lacs for his
business and as money was not given, for
this reason he was not happy with his sister.
On 18.08.2010 at about 5.00 p.m. when
Archana came to the shop of the accused to
take gas cylinder, a quarrel started between
the two. The accused inflicted injury to his
sister by patal. He along with his mother
Smt. Jaiwati reached there and saw the
occurrence. He has further stated that when
they tried to save Archana accused fled
away leaving his sister in a bitterly injured
condition, thereafter his father lodged the
report of the occurrence.

13. P.W.2 Smt. Jaiwati, the mother of
the deceased has also corroborated the
deposition of P.W.1 and has clearly stated
that at the time of the occurrence she was
present on spot with his son Govind and
they saw the accused inflicting injuries
upon Archana by patal. The left hand palm
of Archana was imputed and she had got
injuries on various parts of her body. The
occurrence happened in front of the shop of
Syed Nai and the people assembled there.

14. P.W.3 doctor Bhojraj has
conducted the autopsy of body of the
deceased. He in his deposition has proved
the proceedings of the post mortem, the
injuries found on the body of the deceased
and has proved the autopsy report Ex.-1.
He opined that the cause of death was
hemorrhage due to anti mortem injuries and
it was caused about one day prior to the
post mortem.

15. P.W.4 Cons. Vijay Pal carried the
body of the deceased for post mortem along
100 INDIAN LAW REPORTS ALLAHABAD SERIES
with HG Prem Chand, on 19.8.2010 at
11.30 pm. he has proved this fact in his
evidence.

16. P.W.5 S.I. Ram Kishun Manik has
deposed that he conducted the inquest
proceeding on 19.8.2010 at 10 p.m. and
also prepared the required documents for
post mortem and had sent the dead body for
the same. He has proved the inquest report
and papers relating to autopsy as Ex.A-2 to
A-7 respectively.

17. P.W.-6 Cons. Omkar Singh is the
scribe of the FIR in his deposition he has
proved this fact that on 18.8.2010 at 18.10
hours the informant Jai Prakash had come
to P.S. Mandawar along with a written
report written by Anil Kumar, on the basis
of which he had lodged the FIR of this case
and G.D. no. 36 was also prepared by him
at the same time.

18. P.W.7 doctor Anuj Kumar was
posted as C.M.O in the District Hospital
Ghaziabad and on 18.8.2010 at 6.30 p.m.
he had medically examined the deceased
Smt. Archana then alive. This witness has
proved the injury report Ex.A10 in his
evidence and the injuries found on the body
of the injured. He has also mentioned this
fact that the general condition of the injured
was very critical and she was in a gasping
position, her pulse and b.p were missing.
During examination at 6.50 pm she died.

19. P.W.8 Sunil Sharma has proved
the F.S.L. report in his deposition as Ex.A15 and A-16. He has also proved the
murder weapon patal as material Ex.A-1
and also blood stained earth and plain earth
as material Ex.-2 and Ex.-3 respectively.
He has also proved the clothes of the
deceased recovered from dead body as
material Ex.-4 to Ex.-7. Other articles
recovered from her body as material Ex.-8
to Ex.-14.

20. P.W.9 Jai Prakash is the informant
of the case who is a deaf person. The
question were asked to him in writing and
he has replied thereof. He has proved the
written report Ex.A-17. He has declared
hostile
by
the
prosecution.
He
has
mentioned that at the time of the
occurrence he was not present on the spot.

21. P.W.10 Amit Kumar is the scribe
of the written report Ex.A-17, who has
identified his hand writing over written
report. He has also been declared hostile by
the prosecution.

22. On the basis of the aforesaid
evidence the learned trial Court found that
the evidence adduced by the prosecution
was cogent, consistent and reliable and the
prosecution has succeeded to prove the
guilt of the accused beyond reasonable
doubt and accordingly he was convicted
under Section 302 I.P.C.

23. The learned counsel for the
appellant
has
assailed
the
impugned
judgments on various grounds. It has been
argued that the prosecution evidence rests
upon the ocular version of P.W.1 and P.W.2,
who are not reliable witnesses. They are
interested witnesses and their presence at
the place of occurrence is doubtful at the
time of crime. It has been further argued
that according to the FIR several persons
reached at the spot but none was examined.
It is next submitted that no recovery of
murder weapon has been made from the
possession of the accused and on this point
the prosecution evidence is not reliable and
does not find support from the version of
any independent witness. The question has
been raised upon the truthfulness of the
9 All. Anil Kumar Vs. State of U.P.
101
medical evidence also. Learned counsel for
the appellant has also argued that as per the
prosecution story and the ocular version of
the witnesses, it was not a pre-meditated
murder and the offence, if any was caused
in a spur of moment and in a heat of
passion of the quarrel which suddenly took
place between the deceased and the
accused at the place of occurrence. It has
been submitted that if the guilt of the
accused is proved he may be convicted
under Section 304 part I or part II I.P.C.
instead of Section 302 I.P.C.

24. The submissions of the learned
counsel for the appellant have been
vehemently objected by learned A.G.A. for
the State. It has been submitted that many
injuries have been found by the doctor on
the body of the deceased which show that it
was a brutal murder at a public place. The
murder weapon has been recovered from
the possession of the accused. The ocular
version of P.W.1 and P.W.2 is trustworthy
and cogent and there was no necessity to
get any corroboration of their evidence. It
has been further submitted that the
prosecution case is very well supported by
the medical evidence and there is no
contradiction
in
between
the
ocular
evidence and the medical evidence. There
was no chance of false implication of the
accused, as he was the real son-in-law of
the informant. It has been further submitted
that there are no material contradictions in
the statements of the witnesses. FIR is
prompt and the place of occurrence is
certain.

25. On the basis of the above, the
learned A.G.A. has prayed for the dismissal
of this appeal.

26. We were taken through the
evidence and the judgment delivered by the
trial
Court
and
the various
aspects
discussed therein.

27. A careful scrutiny of the evidence
of P.W.1 and P.W.2 clearly shows that a
quarrel took place at the place of occurrence
on the date and time as claimed by the
prosecution between the accused and
deceased. The accused/ appellant with a
patal
(sharp
edged
weapon) hit
the
deceased, who got fatal injuries and
subsequently succumbed to the injuries and
died. There are no material contradictions in
the evidence of P.W.1 and P.W.2 in material
particulars.
Their
evidence
is
almost
identical on the material points viz. place,
date and time of occurrence, manner of
assault, weapon used etc. It is true that P.W.1
during the course of very lengthy cross
examination has given some contradictory
statements probably in a state of confused
mind as it some times happens with the
witnesses particularly with village back
ground and not very literate but it is a settled
position of law that the evidence adduced of
a witness should be taken as a whole. The
law of evidence does not mean that if a
witness makes one or two confusing or
contradictory statements during his lengthy
cross examination, the rest of his evidence
may be discarded. P.W.1 is a labourer as he
has stated in his deposition likewise P.W.2 is
a illiterate lady as she has put her thumb
impression over her deposition.

28. As a matter of fact, the evidence
of P.W.1 and P.W.2 has been recorded in
parts after a long gap from the date of
occurrence. P.W.1 has been examined in
pieces from 4.4.2011 to 8.1.2013 and
P.W.2, an illiterate lady, was examined on
27.5.2011, 4.4.2011 and 22.1.2013.

29. Recourse may be taken of the case
of Jaishree Yadav vs. State of U.P., (2005)
102 INDIAN LAW REPORTS ALLAHABAD SERIES
9 SCC 788 (F) wherein the Hon'ble Apex
Court has held as follows:

"20.....These shortcomings in the
evidence of this witness will have to be
considered in the background of the fact
that this witness was subjected to nearly
217 questions over a period of 14 months
i.e. his cross-examination starting on 14-81994 and ending on 28-11-1995. Both the
courts below have taken judicial notice of
this fact, not only in regard to this witness
but in regard to other witnesses also and
have come to the concurrent conclusion
that when a witness is subjected to such
lengthy arduous cross-examination over a
lengthy period of time there is always a
possibility of the witnesses committing
mistakes
which
can
be
termed
as
omissions,
improvements
and
contradictions, therefore, those infirmities
will have to be appreciated in the
background of ground realities which make
the witness confused because of the
filibustering tactics of the cross-examining
counsel".

30. The oral evidence adduced by the
prosecution in the form of P.W.1 and P.W.2
find force from the above mentioned
observations of the Hon'ble Supreme Court.
Hence, we do not find force in the
submissions of learned counsel for the
appellant that P.W.1 and P.W.2 both have
made statements in hostile terms and as
such they are not reliable witnesses.

31. Emphasis has been laid down by
the learned A.G.A. for the State on
decision
titled
Ashok
Kumar
Chaudhary. Vs. State of Bihar 2008 (61)
ACC 972 (SC) wherein it has been held
that if the testimony of an eyewitness is
otherwise found trustworthy and reliable,
the same cannot be disbelieved and
rejected because certain insignificant,
normal or natural contradictions have
appeared
in
the
testimony.
If
the
inconsistencies,
contradictions,
exaggerations,
embellishments
and
discrepancies in the testimony are only
normal and not material in nature, then the
testimony of an eyewitness has to be
accepted and acted upon. Distinctions
between
normal
discrepancies
and
material discrepancies are that while
normal discrepancies do not corrode the
credibility of a party's case, material
discrepancies do so.

32. So far as the hostile witness is
concerned, the law is settled that if the
prosecution witness has turned hostile, the
Court may rely upon so much of his
testimony which supports the case of the
prosecution and is corroborated by other
evidence as held in Sidhartha Vashisht @
Manu Sharma Vs. State (NCT of Delhi)
2010 (69) ACC 833 (Supreme Court) and
many other judgments.

33. It has been argued by the learned
A.G.A. that patal is a sharp edged
weapon, the deceased was attacked by
patal and she has got incised wound over
her body, which is evident from the
evidence of P.W.3 who has prepared the
autopsy report and P.W.7 who has got the
opportunity of medical examination of the
deceased when she was injured and
brought before him for the first time in
this way the prosecution finds support
from the medical evidence.

34. We find force in the submission of
the learned A.G.A. for the State and in our
opinion the prosecution case is proved by
the medical evidence also. A perusal of
inquest report Ex.A-2 is also desirable
wherein the panchas has also opined that
9 All. Anil Kumar Vs. State of U.P.
103
death of the deceased was caused by
inflicting serious injuries by a sharp edged
weapon.

35. So far as the topography of the
place of occurrence is concerned, Ex.A-17
site plan has been prepared and proved by
the P.W.8 the I.O. In the FIR it has been
mentioned that the occurrence took place at
the shop of the accused/ appellant. In the
site map Ex.A-11 the place of occurrence is
shown nearby the shop of the accused Anil.
P.W.1 and P.W.2 both have categorically
stated that when the deceased went to take
a gas cylinder to the shop of the accused
they had a quarrel and the offence was
committed by the accused. P.W 2 has stated
that the occurrence took place in front of
shop of Saeed Nai. In the site plan EX. A17, the same position has seen shown and
the shop of the accused has also been
shown nearby. P.W. 8 in his testimony has
also stated that he has found the injured
Archana
from
that
very
place
of
occurrence. The FIR also speaks the same,
hence so far as the place of occurrence is
concerned,
the
prosecution
case
is
absolutely proved.

36. P.W.8 has also stated that when he
got information about the accused surrounded
by the public he immediately rushed to the
place and arrested the accused with patal in
his right hand and in presence of the recovery
witnesses Namepal, Mahipal the murder
weapon was recovered from the possession
of the accused and recovery memo Ex.A13
was prepared, the memo of recovery Ex.A13
is on record which has been proved by P.W.8.
Signatures of independent witnesses Mahipal
and Nam Pal Singh have been obtained upon
it. This recovery has been made on the very
day of the occurrence. Although the learned
counsel for the appellant has made it a
ground to hit the prosecution case that
recovery memo Ex.A13 has not been proved
by any independent witness but in our view
there was no necessity of corroboration of the
statement of I.O. from any independent
witness. P.W.8 in his deposition has clearly
proved the factum of recovery of murder
weapon from the accused and his arrest as
well. He has named the witness Name Pal
and Mahi Pal in his statement, who have
endorsed there signatures upon the recovery
memo.

37. Reliance has been placed by the
learned A.G.A. on Mukesh Vs. State for
NCT of Delhi & Others, AIR 2017 SC 2161
wherein it has been held that if any of the
weapon etc. are recovered at the instance of
the accused (under Section 27 Evidence Act)
only in the presence of police party and there
is no public witness to such recovery or
recovery memo, the testimony of police
personal proving the recovery and the
recovery memo cannot be disbelieved merely
because there was no witness to the recovery
proceedings or recovery memo from the
public particularly when no witness from
public could be found by the police party
despite efforts at the time of recovery.

38. The above mentioned case was a
case of recovery under Section 27 of Indian
Evidence Act but the present case is on a little
different footing. Here the police arrested the
accused on the basis of the information from
an informer and recovered the murder
weapon which he had taken with him and
public witnesses were available to the police
and their signatures were also obtained over
the recovery memo.

39. Learned counsel for the appellant
has assailed the testimonies of P.W.1 and
P.W.2 on the ground that they are the
witnesses related to the deceased being her
brother and mother respectively and as
104 INDIAN LAW REPORTS ALLAHABAD SERIES
such they are interested witnesses. It has
also been argued that it has been stated in
the version of P.W. 1 and P.W.2 that several
other persons reached the spot at the time
of occurrence but none of them was
examined as prosecution witness.

40. Per-contra learned A.G.A. has
vehemently argued that relationship is not a
factor to discredit a testimony of a witness.

41. P.W. 1 in his cross examination
has stated that the place of occurrence is
situated at a distance of 15-20 steps from
his house. He has also stated that he along
with
his
mother
reached
the
spot
immediately. P.W.2 has also stated in her
cross-examination that her house is situated
at a distance of 20-25 steps from the place
of occurrence. Hence the presence of P.W.1
and P.W.2 at the place of occurrence is
natural and trustworthy.

42. In this context the Hon'ble Apex
Court in Bhagwan Jagannath Markad
Vs. State of Maharastra (2016) 10 SCC
537 has held that the testimony of a witness
in a criminal trial cannot be discarded
merely because the witness is a relative or
family member of the victim of the offence.
In such a case Court has to adopt a careful
approach in analyzing the evidence of such
witness and if the testimony of the related
witness
is
otherwise
found
credible,
accused can be convicted on the basis of
the testimony of such related witness.

43. In Surinder Kumar Vs. State of
Punjab (2020) 2 SCC 563 this principle
has been reiterated by holding that merely
because the prosecution did not examine
any
independent
witness,
would
not
necessarily lead to conclusion that accused
was falsely implicated.

44. It is noteworthy that in the case in
hand a careful scrutiny of the evidence of
eye-witnesses P.W.1 and P.W.2 clearly
shows that they are reliable and trustworthy
witnesses and their evidence is found
credible and acceptable.

45. Another submission made by the
learned counsel for the appellant is
regarding the genuineness of the FIR. To
meet out this contention we carefully
perused the contents of the FIR. The
offence is said to have been committed on
18.8.2010 at about 5.00 pm and the FIR has
been lodged about after 1 hour of the
incident. On inquest report Ex.A-2 the case
crime number has been clearly mentioned
which again goes to show that at the time
of inquest, FIR had been lodged.

46. P.W. 6 the scribe has proved the
FIR and case registration G.D. as Ex.A-8
and Ex.A-9 in his evidence.

47. P.W. 10 has stated that when he
wrote the written report as dictated by Jai
Prakash it was not read over to him because
he is a deaf person but when Ex.A-1
written report was shown to P.W.10 he
admitted that the same was written on the
dictation of P.W.9, Jai Prakash.

48. P.W.9 was declared hostile by the
prosecution but his hostality hardly makes
any difference because whatsoever has
been narrated in the written report Ex.A.17,
has been totally corroborated by P.W.10 the
scribe of the written report and the contents
of the written report have been mentioned
in the FIR itself. The contents of the FIR
have been proved by the ocular version of
P.W.1 and P.W.2. Hence, the written report
and FIR of the case are genuine documents.
FIR is not after thought and it has been
9 All. Anil Kumar Vs. State of U.P.
105
lodged without any delay after the
occurrence.

49. Hence, we find no force in the
contention of the learned counsel for the
appellant so far as the genuineness of the
FIR is concerned.

50. Our attention is drawn towards
F.S.L report Ex. A-15 and A-16. The murder
weapon patal, blood stained & plain earth
and the clothes of the deceased recovered by
the I.O. were sent to Forensic Science
Laboratory for examination. All the aforesaid
materials have been produced during course
of evidence before P.W.8, I.O., who has
proved them as Material Ex.A-1 to material
Ex.A-14. The F.S.L. report Ex.A-15 and A-16
are also on record. A perusal of Ex. A-16
shows that human blood was found on the
murder weapon as well as clothings and
peace of earth in the serological examination.
Ex.A-15 is the returning memo of the
materials which were sent for examination.
The aforesaid expert report Ex.A-16 also
favours the prosecution case.

51. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report, there
is no doubt left in our mind about the guilt of
the present appellant. However, the question
which falls for our consideration is whether,
on reappraisal of the peculiar facts and
circumstances of the case, the conviction of
the appellant under Section 302 of I.P.C. of
the Indian Penal Code should be upheld or
the conviction deserves to be converted under
Section 304 Part-I or Part-II of the Indian
Penal Code. It would be relevant to refer
Section 299 of the Indian Penal Code, which
reads as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the
knowledge that he is likely by such act to
cause death, commits the offence of
culpable homicide."

52. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300 of
I.P.Code. The following comparative table
will be helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A person commits culpable
homicide if the act by which
the death is caused is done-
Subject to certain exceptions
culpable homicide is murder
is the act by which the death
is caused is done.

INTENTION

(a) with the intention of
causing death; or
(1) with the intention of
causing death; or
(b) with the intention of
causing such bodily injury as
is likely to cause death; or
(2) with the intention of
causing such bodily injury as
the offender knows to be
likely to cause the death of
the person to whom the harm
is caused;
KNOWLEDGE
KNOWLEDGE
(c) with the knowledge that
the act is likely to cause
death.
(4) with the knowledge that
the act is so immediately
dangerous
that it must in all probability
cause death or such bodily
injury as is likely to cause
death,
and
without
any
excuse for incurring the risk
of causing death or such
106 INDIAN LAW REPORTS ALLAHABAD SERIES
injury
as
is
mentioned
above.

53. The evidence available on record
carries us to the conclusion that the incident
was not a pre-motivated one. It was a result
of a sudden quarrel. Whilst deprived of
power
of
self
control
and
sudden
provocation, the accused offender caused
the death of his wife when the deceased
gave him provocation. The ocular evidence
goes to show that when the deceased came
to the shop of the accused a quarrel took
place between the two and the accuded
depriving of the power of the self control
by
grave
and
sudden
provocation
committed the crime with the intention of
causing death of the deceased.

54. On overall scrutiny of the facts and
circumstances of the present case coupled
with the opinion of the Medical Officer and
considering the principle laid down by the
Apex Court in the Case of Tukaram and
Ors Vs. State of Maharashtra, reported in
(2011) 4 SCC 250 and in the case of B.N.
Kavatakar and Another Vs. State of
Karnataka, reported in 1994 SUPP (1)
SCC 304, we are of the considered opinion
that the offence would be one punishable
under Section 304 part-I of the IPC.

55. In view of the aforementioned
discussion, we are of the view that this
appeal has to be partly allowed, hence, is
partly allowed.

56. The conviction of the appellant
under Section 302 of Indian Penal Code is
converted to conviction under Section 304
(Part I) of Indian Penal Code and the
appellant is sentenced to undergo 10 years
of incarceration with fine, reduced to
Rs.10,000/-. Default sentence is reduced to
three months.

57. Appellant-accused is in jail. If ten
years of incarceration is over, he shall be
released forthwith, if not required in any
other case. He would be entitled to all kind
of remissions. The judgement and order
dated 12.02.2013 shall stand modified
accordingly.
----------
(2022) 9 ILRA 106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.09.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 2057 of 2018
and
Criminal Appeal No. 1802 of 2018

Brijesh Harijan ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Mrs. Swati Agrawal, Sri Shivam Tripathi

Counsel for the Respondent:
G.A.

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,300,302, 376 , 376D , 326 , 326-A & 354 - The Code of
criminal procedure, 1973 - Section 207,
313 - murder - culpable homicide not
amounting to murder - Proper Sentence
-
Sentence
should
not
be
either
excessively harsh or ridiculously low -
quantum of sentence - principle of
proportionality - Sentence should be
based on facts of a given case - Gravity
of offence, manner of commission of
crime, age and sex of accused should be
taken into account - Discretion of Court
in
awarding
sentence
cannot
be
exercised
arbitrarily
or
whimsically.
(Para -26)