# Chandresh Yadav (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-23
- **Case number:** Criminal Appeal No. 568 of 2017
- **Bench:** Suresh Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chandresh-yadav-in-jail-v-state-of-u-p-45698
- **Pages:** 7

## Headnote

Criminal Law - Indian Penal Code -Sections
304, 504 - Appeal against conviction.

The case is, therefore, covered by Exception 4
to Section 300 IPC. It was a culpable homicide
not amounting to murder. It is also peculiar
fact that the blow was not repeated. It is just
so happened that the lathi blow dealt by him
proved to be fatal. (para 17)

Therefore, it is abundantly clear that there was
no premeditation or prearranged plan. All these
facts
and
circumstances
are
taken
into
consideration
in
proper
perspective
for
awarding the sentence. (para 19)

Nature of simple injury inflicted by the accused
on the part of the body on which it was
inflicted. The weapon used to inflict the same
and the circumstances in which the injury was
inflicted do not suggest that the appellant had
any intention to kill the deceased. All that can
be said is that the appellant had the knowledge
that injury inflicted by him was sufficient to
cause the death of the deceased. The case
would, therefore, more appropriately fall under
section 304 Part II IPC. So the appellant is
rightly convicted under Section 304 Part II and
504 IPC. (para 24)

The
appeal
is
partly
allowed
and
modifying
the
sentence
awarded
to
appellant. (E-2)

List of cases cited: -

## Text

76 INDIAN LAW REPORTS ALLAHABAD SERIES
Guddi, Kusum Devi and Brijbhan Gaur are
acquitted.

58. They are in jail. They are
directed to be released forthwith unless
wanted in any other case.

59. Cri. Appeal Nos. 558 of 2019 and
564 of 2019 are allowed.

60. Keeping in view the provision of
Section 437-A of the Code, appellants- Prem
Sheela @ Guddi, Kusum Devi and Brijbhan
Gaur are hereby directed forthwith to furnish
a personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before Trial Court, which shall be
effective for a period of six months, along
with an undertaking that in the event of filing
of Special Leave Petition against this
judgment or for grant of leave, appellants-
Prem Sheela @ Guddi, Kusum Devi and
Brijbhan Gaur, on receipt of notice thereof,
shall appear before Hon'ble Supreme Court.

61. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2020)1ILR A76

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.01.2020

BEFORE
THE HON'BLE SURESH KUMAR GUPTA, J.

Criminal Appeal No. 568 of 2017

Chandresh Yadav ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Anant Prakash Mishra, Sri Chandra Shekhar
Pandey, Sri Surendra Kumar Chaubey
Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -Sections
304, 504 - Appeal against conviction.

The case is, therefore, covered by Exception 4
to Section 300 IPC. It was a culpable homicide
not amounting to murder. It is also peculiar
fact that the blow was not repeated. It is just
so happened that the lathi blow dealt by him
proved to be fatal. (para 17)

Therefore, it is abundantly clear that there was
no premeditation or prearranged plan. All these
facts
and
circumstances
are
taken
into
consideration
in
proper
perspective
for
awarding the sentence. (para 19)

Nature of simple injury inflicted by the accused
on the part of the body on which it was
inflicted. The weapon used to inflict the same
and the circumstances in which the injury was
inflicted do not suggest that the appellant had
any intention to kill the deceased. All that can
be said is that the appellant had the knowledge
that injury inflicted by him was sufficient to
cause the death of the deceased. The case
would, therefore, more appropriately fall under
section 304 Part II IPC. So the appellant is
rightly convicted under Section 304 Part II and
504 IPC. (para 24)

The
appeal
is
partly
allowed
and
modifying
the
sentence
awarded
to
appellant. (E-2)

List of cases cited: -

1. Jagrup Singh vs. St. of Hary. (1981) 3 SCC
616

2. Gurmail Singh & ors. Vs. St. of Punj. (1982)
3 SCC 185

3. Hem Raj Vs. St. (Delhi Administration)
(1990) Supp. SCC 291

4. Pappu Vs. St. of M.P. (2006) 7 SCC 391

(Delivered by Hon'ble Suresh Kumar
Gupta, J.)
1 All. Chandresh Yadav Vs. State of U.P.
77

1. Heard learned counsel for the
appellant and learned A.G.A.

2. This criminal appeal has been
preferred by appellant- Chandresh Yadav
@ Chanda against the judgment and order
dated 02.12.2016, passed by Additional
Session Judge, Court No. 12, Varanasi, in
S.T. No. 161 of 2015 (State Vs. Chandresh
Yadav @ Chanda), arising out of Case
Crime No. 20 of 2015, P.S. Shivpur,
District
Varanasi,
whereby
convicted
under Section 304 IPC, for 8 years
rigorous imprisonment with fine of Rs.
4,000/- and in default of fine, 4 months
additional
imprisonment
and
under
sections 504 IPC for 1 year rigorous
imprisonment and fine of Rs. 2,000/- and
in default of fine 2 months additional
imprisonment to appellant. Both the
sentences
were
directed
to
run
concurrently.

3. Brief facts of this case are as
follows-:

4. The written complaint (Ext. Ka-1)
lodged by complainant Namwar Singh,
P.W. 1 by way of NCR (Ext. Ka-5) with
allegation that on 21.01.015 in the
morning at 10.30 a.m. appellant Chandresh
Yadav S/o Buddhu Yadav was giving
filthy abuses to his younger brother Arvind
Yadav when he refused to do so then
appellant gave a lathi blow on the head of
deceased Arvind Yadav due to such
assault deceased got serious injury.

5. On the basis of written complaint
by P.W.1 NCR No. 10/2015 was lodged at
police station Shivpur, under sections 323,
504 IPC at 15.05 p.m. on 21.01.2015
which was duly entered in G.D. Injured
Arvind Kumar Yadav admitted in Pandit.
Deen
Dayal
Upadhyay
Government
Hospital, Varanasi, for treatment, but on
account of serious condition deceased
referred to Nova Hospital, Varanasi, for better
treatment, where he died on 28.01.2015 at
6.35 p.m. after 7 days on account of head
injury sustained by him. On receiving of such
information this NCR No. 10/15 converted as
Case Crime No. 20/15, under section 304 IPC
by way of G.D. No. 19, 9.40 on 01.02.2015
as Ext. Ka-6.

6. The case was investigated by SubInspector Raghvendra Bahadur Singh
(P.W. 4). He received all the documents
related to this case and enclosed in CD and
during
investigation
recorded
the
statement of constable clerk Vinod Kumar
and after recorded the statement of P.W. 1,
prepared site plan Ext. Ka-3 on pointing
out of complainant and thereafter the
statement
of
sub-Inspector
Kashyap
Kumar was recorded who prepared the
inquest report Ext. Ka-2, after recording
the statement of eye-witnesses, completing
the formalities of investigation, chargesheet Ext. Ka-5 submitted under sections
323, 504, 304 IPC.

7. Post-mortem of the body of the
deceased was conducted by Dr. Surendra
Kumar Pandey (P.W.-5) on 29.01.2015 at
3.30 p.m., who also prepared the postmortem report Ext. Ka-7. He has found
following injuries on the person of
deceased Arvind Kumar Yadav:-

1. Contusion 10.5cm x 4.5cm
placed on right side upper lateral part of
chest up to nipple from the axilla.

2. Contusion 6.5cm x 4cm
placed on left left side upper and lateral
part of chest at level of left nipple.

3.
On
opening
scalp
extravasation of blood on frontal area of
scalp in area 10cm x 4.5cm.
78 INDIAN LAW REPORTS ALLAHABAD SERIES

4.
on
opening
the
scalp
extravasation
of
blood
on
external
occipital on protuberance below in area
5cm x 3.2cm. Colour of contusion purplish
in colour.

5. Internal Examination- the
bone behind the head was fractured.
Membrane of brain was congested. Brain
was also congested.

Cause of death due to effects of Coma as a
result of Head and Brain injuries.

8. Since the offence mentioned in the
charge-sheet were triable by the court of
session, the Chief Judicial Magistrate,
Varanasi, committed the case to the court
of session for the trial where the case
crime No. 20 of 2015 was registered as
ST. No. 161 of 2015 (State vs. Chandrash
Yadav), made over for trial from there to
the court of sessions Judge, Court no. 12,
Varanasi, on the basis of material on
record and after affording opportunity of
hearing to the prosecution as well as the
accused appellant, framed charge under
sections 304, 504 IPC.

9. The accused-appellant did not
plead guilty and claimed to be tried.

10. The prosecution in order to prove his
case against the appellant examined P.W.1
Namwar Singh, who is the real brother of the
appellant, P.W. 2 Baddu Yadav, father of the
deceased, P.W. 3 Heerawati Yadav, mother of
the deceased, P.W. 4 Raghvendra Bahadur,
Sub-inspector, Investigating Officr (formal
witness) and P.W. 5, Dr. Surendra Kumar
Pandey, who was conducted the autopsy of the
deceased, who was also formal witness.

11.

Accused-appellant
in
his
examination under section 313 Cr.P.C.
denied his participation and submitted that
he has been falsely implicated in this case due
to enmity. The accused-appellant did not
however adduce any evidence in defence.

12. The Additional Session Judge, Court
No. 12, Varanasi, by impugned judgment and
order after analyzing the evidence convicted
the appellant under section 304, 504 IPC as
above, hence this appeal.

13. It has been contended by learned
counsel for the appellant that the appellant
is poor person and there is no intention to
kill the deceased and due to sudden quarrel
this occurrence has happened and death of
the injured occurred after seven days due
to negligence of the doctor and no offence
against the appellant is made out under
Section 323 Cr.P.C. and finally submitted
that offence, if any would not traverse
beyond section 325 IPC and further argued
that due to poverty of appellant he could
not able to engage layer of his choice at
the time of trial. During trial amicus curiae
was appointed by trial court and case of
the appellant contested by amicus curiae.
It is also submitted that he was arrested on
01.02.2015 since then the appellant
languishing in jail and also submitted that
he is the sole bread earner in his family
and he is the father of young children, so
by taking lenient view, he could be
punished by minimum sentence.

14. Learned AGA has opposed the
prayer and submitted that the accused was
rightly convicted by the sessions court and
there is no occasion for interference
against the judgment and order of learned
trial court and this appeal lacks merit and
the same should be dismissed.

15. I have heard learned counsel for
the appellant, learned AGA and carefully
perused the entire record of the case.
1 All. Chandresh Yadav Vs. State of U.P.
79

16. In this case prosecution examined
the three eyewitnesses of the fact P.W. 1
who is real brother of deceased, P.W. 2
Baddu Yadav, father of the deceased and
P.W. 3 Heerawati, mother of the deceased
and accused/appellant is also a real brother
of P.W. 1 and son of P.W. 2 and P.W.3.

Although these 3 witnesses are relative
witness but these 3 witnesses are natural witness
and incident was happened inside the house, hence
presence of the above witnesses at the spot is not
suspicious from any point of view.

On careful examination of the
evidence adducef by these 3 witnesses is
transpires that the appellant inflicted the
lathi blow on the head of deceased and due
to
this
single
lathi
blow deceased
succumbed due to this injury during
treatment. Thus, the evidence is fully
corroborated with medical evidence. So
the evidence produced by the prosecution
inspire confidence. Prosecution is able to
prove his case beyond all shadow of doubt.

17. To come to the point, it was
proved by evidence on record that after
brief altercation and exchange of abuses
between the deceased on the one hand and
accused appellant on the other, in the heat
of passion the appellant Chandresh gave a
lathi blow on the head of the deceased
which proved to be fatal. The case is,
therefore, covered by Exception 4 to
Section 300 IPC. It was a culpable
homicide not amounting to murder. It is
also peculiar fact that the blow was not
repeated. It is just so happened that the
lathi blow dealt by him proved to be fatal.

18. There are significant features of
the case which are appropriate sentencing
is very vital junction of the Court required
to be taken into consideration for awarding
the appropriate sentence to the accused.

1.
Admittedly,
the
incident
happened at the spur of the moment.
Though he had no intention of causing
either death or such bodily injury as was
likely to cause his death. But knowledge
has to be imputed to him that the act of
striking lathi blow on the head of the
deceased was likely to cause his death.
Therefore, he committed that offence of
culpable homicide not amounting to
murder and the offence is punishable
under Part-II of Section 304 IPC.

2. The appellant gave a single
lathi blow on the head of the deceased
which proved fatal;

3. Injury inflicted on the body of
the deceased is not caused by the appellant
that to fatal.

4. The incident took place on
21.01.2015 at 10.30 a.m. and the deceased
remained hospitalized from 21.01.2015 to
28.01.205
and
ultimately
died
on
28.01.2015 at Nova Hospital, Varanasi.

5. The trial court observed that
there was no previous enmity between the
parties.

Therefore, it is abundantly clear
that there was no premeditation or
prearranged plan. All these facts and
circumstances are taken into consideration
in proper perspective for awarding the
sentence.

19. In Jagrup Singh vs. State of
Haryana (1981) 3 SCC 616, the accused
had inflected a single blow in the heat of
moment in a sudden fight with blunt side
of Gandhala on the head of the deceased
causing his death. According to the
opinion of the doctor this particular injury
was sufficient in the ordinary course of
nature to cause death. But, according to
this Court, the intention to cause such an
injury was likely to cause death had not
been made out. The Apex Court altered the
80 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction of the accused from section 302
IPC to section 304 Part II IPC and the
accused was directed to suffer rigorous
imprisonment for a period of seven years.

20. In Gurmail Singh & Others v.
State of Punjab(1982) 3 SCC 185, the
accused had no enmity with the deceased.
The accused gave one blow with the spear
on the chest of the deceased causing his
death. The injury was an incised wound.
The Sessions Judge convicted the accused
undersection 302IPC and sentenced him to
rigorous imprisonment for life. The High
Court affirmed the same. This Court, while
taking into consideration the age of the
accused
and
other
circumstances,
converted the conviction fromsection
302IPC to one undersection 304Part II IPC
and sentenced him to suffer rigorous
imprisonment for five years and a fine of
Rs.500/-, in default to suffer rigorous
imprisonment for six months.

21. In case of Hem Raj vs. State
(Delhi Administration) (1990) Supp.
SCC 291 the accused inflicted single stab
injury landing on the chest of the
deceased. The occurrence admittedly had
taken place in the spur of the moment and
in heat of passion upon a sudden quarrel.
According to the doctor the injury was
sufficient in the ordinary course of nature
to cause death. Hon'ble Apex Court
observed as under:

"14. The question is whether the
appellant could be said to have caused
that particular injury with the intention of
causing death of the deceased. As the
totality of the established facts and
circumstances
do
show
that
the
occurrence
had
happened
most
unexpectedly in a sudden quarrel and
without pre-meditation during the course
of which the appellant caused a solitary
injury, he could not be imputed with the
intention to cause death of the deceased or
with the intention to cause that particular
fatal injury; but he could be imputed with
the knowledge that he was likely to cause
an injury which was likely to cause death.
Because in the absence of any positive
proof that the appellant caused the death
of the deceased with the intention of
causing death or intentionally inflicted
that particular injury which in the
ordinary course of nature was sufficient to
cause death, neither Clause I nor Clause
III
of
Section
300
IPC
will
be
attracted......"

Hon'ble Apex Court while setting
aside the conviction under section 302
convicted the accused under section 304
Part II and sentenced him to undergo
rigorous imprisonment for seven years.

22. In case of Pappu vs. State of
M.P. (2006) 7 SCC 391, the Hon'ble Apex
Court has observed as under;

"......The help of Exception 4 can
be invoked if death is caused (a) without
premeditation, (b) in a sudden fight; (c)
without the offender's having taken undue
advantage or acted in a cruel or unusual
manner; and (d) the fight must have been
with the person killed. To bring a case
within Exception 4 all the ingredients
mentioned in it must be found. It is to be
noted
that
the
'fight'
occurring
in
Exception 4 to Section 300 IPC is not
defined in the IPC. It takes two to make a
fight. Heat of passion requires that there
must be no time for the passions to cool
down and in this case, the parties have
worked themselves into a fury on account
of the verbal altercation in the beginning.
A fight is a combat between two and more
persons whether with or without weapons.
1 All. Chandresh Yadav Vs. State of U.P.
81
It is not possible to enunciate any general
rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and
whether a quarrel is sudden or not must
necessarily depend upon the proved facts
of each case. For the application of
Exception 4, it is not sufficient to show
that there was a sudden quarrel and there
was no premeditation. It must further be
shown that the offender has not taken
undue advantage or acted in cruel or
unusual manner. The expression 'undue
advantage' as used in the provision means
'unfair advantage'.

It cannot be laid down as a rule
of universal application that whenever one
blow is given, Section 302 IPC is ruled
out. It would depend upon the weapon
used, the size of it in some cases, force
with which the blow was given, part of the
body it was given and several such
relevant factors.

Considering
the
factual
background in the case at hand it will be
appropriate to convict the appellant under
Section 304 Part II IPC, instead of Section
302 IPC as has been done by the trial
court and affirmed by the High Court.
Custodial sentence of eight years would
meet the ends of justice. The appeal is
allowed to the aforesaid extent."

23. On consideration of entire
evidence including the medical evidence, I
am of the view that the appellant has
rightly been convicted under section 304
Part II IPC. In the facts and circumstance
of the case that the appellant and all the
witnesses are real family members, so
before awarding sentence to the accused
each case has to be seen its special
circumstances and proper prospective. The
relevant factors are as under:-

a. Motive or previous enmity;

b. Whether the incident had
taken place on the spur of the moment;

c. The intention/knowledge of
the accused while inflicting the blow or
injury;

d. Whether the death ensued
instantaneously or the victim died after
several days

e. The gravity, dimension and
nature of injury.

f. The age and general health
condition of the accused.

g. Whether the injury caused
without premeditation in a sudden fight;

h. The nature and size of weapon
used for inflicting the injury and the force
with which the blow was inflicted;

I. The criminal background and
adverse history of the accused;

j. Whether the injury inflicted
was not sufficient in the ordinary course of
nature to cause death but the death was be
caused of shock;

k. Number of other criminal
cases pending against the accused;

l. Incident occurred within the
family members or close relations;

m. The conduct and behaviour of
the accused after the incident. Whether the
accused had taken the injured/ the
deceased to the hospital immediately to
ensure that he/she gets proper medical
treatment?

These are some of the factors
which can be taken into consideration
while granting an appropriate sentence to
the accused. The list of circumstances
enumerated above is only illustrative and
not exhaustive. In our considered view,
proper and appropriate sentence to the
accused is the bounded obligation and duty
of the court. The endeavour of the court
must be to ensure that the accused receives
appropriate sentence, in other words,
sentence should be according to the
82 INDIAN LAW REPORTS ALLAHABAD SERIES
gravity of the offence. These are some of
the relevant factors which are required to
be kept in view while convicting and
sentencing the accused.

24. I am of the opinion that nature of
simple injury inflicted by the accused on
the part of the body on which it was
inflicted. The weapon used to inflict the
same and the circumstances in which the
injury was inflicted do not suggest that
appellant had any intention to kill the
deceased (real brother of appellant). All
that can be said is that the appellant had
the knowledge that injury inflicted by him
was sufficient to cause the death of the
deceased. The case would, therefore, more
appropriately fall under section 304 Part II
IPC. So the appellant is rightly convicted
under Section 304 Part II and 504 IPC.

25. As the appellant's family consists
of one minor daughter, two minor sons and
wife and all of whom dependent on him
and the appellant has no previous criminal
history.

26. So, considering the peculiar facts
and circumstances of the case. The appeal
is partly allowed and modifying the
sentence awarded to appellant.

27. The conviction provided under
section 304 Part II is confirmed. As the
appellant is in jail since 01.02.2015
(during trial as well as appeal). I think that
the ends of justice would be served by
sentencing the appellant to rigorous
imprisonment for 5 years, under section
304
IPC
Part-II
and
one
year
imprisonment under section 504 IPC and
both the sentence run concurrently. The
fine imposed by trial court with default
clause awarded to him shall remain
unaltered. It is made clear that the period
undergone in jail shall be adjusted in 5
years imprisonment.

28. The office is directed to transmit
back the record of the Lower Court with a
copy of judgment and order of this Court
for immediate compliance.
----------
(2020)1ILR A82

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.01.2020

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 816 of 2014

Rajjan ...Appellant(On Interim Bail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Santosh Kumar Mishra

Counsel for the Opposite Party:
A.G.A.
Criminal Law - Indian Penal Code -
Sections
323,
504,
506
-
S.C./S.T.
Act,1961 -Section 3(1)X - Appeal against
conviction.

Section 3 and 4 of the Probation of Offender
Act and Sections 360, 361 of Cr.PC. are
discussed.

Considering the fact that the accused has been
convicted only under Section 323 IPC and for
remaining offence he has been acquitted by
the learned trial court. It is a fit case in which
the benefit of probation may be given. The
reason being that there is no criminal history
alleged against the appellant, he is a farmer
and belongs to a very humble and village
background, the probation of Offender Act and
Sections 360 and 361 Cr.P.C. makes it
mandatory. On the part of the trial Court to
state reason for not according to benefit of