# Dharmendra Kumar v. State of U.P

- **Citation:** (2023) 3 ILRA 1249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Criminal Appeal No. 5517 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Arun Kumar Singh Deshwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dharmendra-kumar-v-state-of-u-p-49923
- **Pages:** 8

## Headnote

A. Criminal Law - Indian Penal Code,1860
-
Section
302
-
sentenced
to
life
imprisonment- allegation- son of accused
appellant came to her house to call the
deceased- accused appelant was seen
taking out the body of the deceased from
his house- several injuries inflicted by
knife- presumption of Section 106 of the
Indian Evidence Act, 1872- appellant
under duty to explain about death of
deceased- dead body recovered from his
house-
presumption
rightly
invoked.
(Paragraph 12)

HELD: Therefore, applying the presumption of
Section 106 of The Indian Evidence Act, 1872
(hereinafter referred to as the 'Evidence Act'), it
is a duty of the appellant to explain about the
death of deceased Awadhesh as the dead body
of the deceased was recovered from the house
of the appellant. It also appears from the record
that though initially appellant confessed under
Section 161 Cr.P.C. that he had killed deceased
Awadhesh in a fit of moment when he saw him
in a compromising position with his daughter
Sapna. Sessions Judge also convicted the
appellant on the ground that body of the
deceased Awadhesh was found from his house
and it appears from circumstantial evidence as
well as subsequent conduct of appellant that he
killed Awadhesh by causing him knife injury
when he had seen him in a compromising
position with his daughter at his house. Even
the appellant did not give sufficient explanation
in his St.ment recorded under Section 313
Cr.P.C. for finding the dead body of deceased
Awadhesh
from
his
house.
Therefore,
presumption under Section 106 Indian Evidence
Act, 1872 was rightly invoked by the Sessions
Judge against the appellant. (Para 12)

B. Exception 1 of Section 300 IPC- No
direct
evidence-
Appellant
killed
the
deceased Awadhesh in a fit of moment-
saw him in compromising situation with
his
daughter-
impugned
trial
court
judgement modified- conviction under
Section 304 IPC- sentence modified to 10
years
imprisonment-
Appeal
partly
allowed. (Paragraphs 14, 15, 16 and 17)

HELD: In view of the above fact and
circumstances, we are of the opinion that firstly,
there is no direct evidence that the appellant
has caused the death of deceased Awadhesh
but from the circumstantial evidence as well as
presumption under Section 106 of the Evidence
Act, he was held guilty for causing death of
Awadhesh. Secondly, this fact is also not in
dispute that death of the deceased caused by
the appellant was not premeditated but because
of the fact he lost self-control by grave and
sudden provocation because he has seen
deceased Awadhesh in a compromising position
with
his
daughter
Sapna
and
in
such
circumstances, this fact cannot be disputed that
a father after seeing his daughter in a
compromising position with a person will
definitely loose self-control and if he caused
death in that spur of moment, then same will
fall under culpable homicide not amounting to
murder. Even, the Apex Court in the case of St.
of U.P. Vs Lakhmi in Criminal Appeal no.234 of
1993 decided on 12.02.1998 reported in AIR
1998 SC 1007 and in case of Hansa Singh Vs St.
of Punjab in Criminal Appeal No.248 of 1973
decided on 20.08.1976 reported in AIR 1977 SC
1801 observed that in such situation, cases will
fall under Section-304 IPC and not under
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 302 IPC. Thereafter, after considering
the evidence on record as well as the contention
of learned counsel for the appellant and learned
AGA, it is clearly established that the present
case falls under Section 304 IPC and not under
Section 302 IPC, in view of the Exception 1 of
Section 300 IPC. Therefore, appellant deserves
to be convicted under Section 304 IPC. (Para
16)

Appeal partly allowed. (E-14)

List of Cases cited:

## Text

3 All. Dharmendra Kumar Vs. State of U.P.
1249
----------
(2023) 3 ILRA 1249
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Criminal Appeal No. 5517 of 2015

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

Counsel for the Appellant:
Sri Ramesh Kumar Pandey, Sri Ashish Kumar
Singh

Counsel for the Respondent:
G.A.

A. Criminal Law - Indian Penal Code,1860
-
Section
302
-
sentenced
to
life
imprisonment- allegation- son of accused
appellant came to her house to call the
deceased- accused appelant was seen
taking out the body of the deceased from
his house- several injuries inflicted by
knife- presumption of Section 106 of the
Indian Evidence Act, 1872- appellant
under duty to explain about death of
deceased- dead body recovered from his
house-
presumption
rightly
invoked.
(Paragraph 12)

HELD: Therefore, applying the presumption of
Section 106 of The Indian Evidence Act, 1872
(hereinafter referred to as the 'Evidence Act'), it
is a duty of the appellant to explain about the
death of deceased Awadhesh as the dead body
of the deceased was recovered from the house
of the appellant. It also appears from the record
that though initially appellant confessed under
Section 161 Cr.P.C. that he had killed deceased
Awadhesh in a fit of moment when he saw him
in a compromising position with his daughter
Sapna. Sessions Judge also convicted the
appellant on the ground that body of the
deceased Awadhesh was found from his house
and it appears from circumstantial evidence as
well as subsequent conduct of appellant that he
killed Awadhesh by causing him knife injury
when he had seen him in a compromising
position with his daughter at his house. Even
the appellant did not give sufficient explanation
in his St.ment recorded under Section 313
Cr.P.C. for finding the dead body of deceased
Awadhesh
from
his
house.
Therefore,
presumption under Section 106 Indian Evidence
Act, 1872 was rightly invoked by the Sessions
Judge against the appellant. (Para 12)

B. Exception 1 of Section 300 IPC- No
direct
evidence-
Appellant
killed
the
deceased Awadhesh in a fit of moment-
saw him in compromising situation with
his
daughter-
impugned
trial
court
judgement modified- conviction under
Section 304 IPC- sentence modified to 10
years
imprisonment-
Appeal
partly
allowed. (Paragraphs 14, 15, 16 and 17)

HELD: In view of the above fact and
circumstances, we are of the opinion that firstly,
there is no direct evidence that the appellant
has caused the death of deceased Awadhesh
but from the circumstantial evidence as well as
presumption under Section 106 of the Evidence
Act, he was held guilty for causing death of
Awadhesh. Secondly, this fact is also not in
dispute that death of the deceased caused by
the appellant was not premeditated but because
of the fact he lost self-control by grave and
sudden provocation because he has seen
deceased Awadhesh in a compromising position
with
his
daughter
Sapna
and
in
such
circumstances, this fact cannot be disputed that
a father after seeing his daughter in a
compromising position with a person will
definitely loose self-control and if he caused
death in that spur of moment, then same will
fall under culpable homicide not amounting to
murder. Even, the Apex Court in the case of St.
of U.P. Vs Lakhmi in Criminal Appeal no.234 of
1993 decided on 12.02.1998 reported in AIR
1998 SC 1007 and in case of Hansa Singh Vs St.
of Punjab in Criminal Appeal No.248 of 1973
decided on 20.08.1976 reported in AIR 1977 SC
1801 observed that in such situation, cases will
fall under Section-304 IPC and not under
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 302 IPC. Thereafter, after considering
the evidence on record as well as the contention
of learned counsel for the appellant and learned
AGA, it is clearly established that the present
case falls under Section 304 IPC and not under
Section 302 IPC, in view of the Exception 1 of
Section 300 IPC. Therefore, appellant deserves
to be convicted under Section 304 IPC. (Para
16)

Appeal partly allowed. (E-14)

List of Cases cited:

1. Criminal Appeal No.734 of 2014 decided on
03.04.2014 in the case of Saroj @ Suraj Panchal
& anr. Vs St. of W. B.

2. Criminal Appeal No.219 of 2013 decided on
21.05.2020
in
the
case
of
Thiruchanur
Amaranath Vs St. of A.P. rep. by Public
Prosecutor Hyderabad

3. St. of U.P. Vs Lakhmi AIR 1998 SC 1007

4. Hansa Singh Vs St. of Pun.AIR 1977 SC 1801

(Delivered by Hon'ble Arun Kumar Singh
Deshwal, J.)

1. By way of present criminal appeal,
the appellant has challenged the judgement
and order dated 30.10.2015 passed by the
Special
Judge
(Essential
Commodity
Act)/Additional Sessions Judge, Ghaziabad
in Sessions Trial No.483 of 2012 (State Vs.
Dharmendra Kumar) arising out of Case
Crime No.1591 of 2011, under Section-302
IPC, Police Station-Indrapuram, DistrictGhaziabad. By the impugned judgement,
the Sessions Judge convicted the appellant
under Section-302 IPC and imposed
punishment of life imprisonment along
with fine of Rs.40,000/- on the appellant
and in case of non-payment of penalty, it
was directed that he would be further liable
to undergo one year imprisonment.

Prosecution Case

2. First informant Phoola Devi (PW1) submitted a tehrir dated 13.09.2011 in
Police Station-Indrapuram. In that tehrir, it
was mentioned that first informant Phoola
Devi had been residing along with her
family at RC/51 N Hayatnagar Khoda.
Accused Dharmendra came to her house to
call her son Awadhesh Chandra Yadav.
Thereafter, between 3 to 4 brother of
Dharmendra, Harendra Kumar came to her
house and told her to take his son as he has
suffered several knife injuries. Thereafter,
she along with her younger son Mahesh
went to the house of appellant, then he saw
that accused persons were taking out her
son from house and told her loudly to take
the dead body of her son. Thereafter, she
and her son brought Awadhesh along with
police at metro hospital where the doctors
declared him dead.

3. On the basis of above tehrir dated
13.09.2011, a case in case crime no.1591 of
2011,
under
Section-302
IPC
was
registered against the accused Dharmendra
and Harendra at 18:15 hours. S.I. Munshi
Lal was handed over the investigation of
the aforesaid case who after recording the
statement of first informant went on the
spot and prepared site plan at the place of
incident and after recording the statement
of witnesses, collected blood-stained floor
and normal soil along with pillow and
blood-stained bed sheet as well as blood
stained knife. Panchayatnama of the body
of Awadhesh aged about 21 years was also
prepared on 13.09.2011 at 16:30 at Metro
Hospital, Noida in presence of witnesses.
Thereafter, postmortem of the body of
Awadhesh was also conducted at District
Hospital by Dr. K.N. Tiwari on 14.09.2011
at 2:15 pm. As per the postmortem report,
following antemortem injuries were found
on the person of deceased Awadhesh
Chandra Yadav :
3 All. Dharmendra Kumar Vs. State of U.P.
1251

(i) 11 incised (punctured) wound in the
abdomen over the area of 20 x 20 cm of
size 4 x 2 cm to 1.50 x 1 cm;

(ii) three wounds were found at the left
side and;

(iii) 8 wound were found at the right
side.

All wound were deep in abdomen.

In internal examination of dead body,
blood was also found in the abdomen.
Small intestine, liver were having cut, 100
ml semi digested food was also found large
intestine.

4. As per the opinion of the doctor,
cause of death is hemorrhage and shock
due to above injuries. Panchayatnama of
dead body of Sapna Kumari aged about 17
years was also conducted on 13.09.2011 at
Metro Hospital, Gautam Buddh Nagar at
16:30 in presence of witnesses. Thereafter,
her body was also sent for postmortem
which was conducted by Dr. K.N. Tiwari
on 14.09.2011 at 2:45 pm. As per the
postmortem report, several incised wound
were also found on different parts of her
body including abdomen. In internal
examination, blood was also found in her
abdomen and chest. As per the opinion of
the doctor, Kumari Sapna also died due to
haemorrhage, shock, due to ante-mortem
injuries. But as a trial is with regard to
Awadhesh
Kumar,
therefore,
detailed
discussion of the injury of Kumari Sapna is
not relevant, at present, as no case was
registered for her death.

5.

After
preparation
of
panchayatnama
and
postmortem,
investigation was handed over to new
Investigating Officer, Ram Pawan Singh on
27.11.2011
and
on
receiving
the
investigation, he recorded the statement of
several witnesses and found that the coaccused Harendra was not involved in the
aforesaid incident as he was not present at
the place of incident, therefore, his name
was removed during investigation and
present appellant, Dharmendra was arrested
by police on 18.03.2012 and thereafter, on
the basis of available evidence, chargesheet dated 21.03.2012 was submitted
against the appellant under Section 302
IPC. Additional Sessions Judge framed
charges against appellant on 08.06.2012
under Section-302 IPC and appellant
denied the charges and requested for trial.

Prosecution Evidence

6. In support of prosecution, 12 witnesses
were examined in which Phoola Devi as
PW-1, Ramu Singh as PW-2, Mahendra
Singh as PW-3, Awadhesh Bhagat as PW-4,
Harendra Kumar as PW-5, Sub-Inspector
Chaman Prakash Sharma as PW-6, Dr.
K.M. Tiwari as PW-7, Constable Mool
Chandra Sharma as PW-8, Usha wife of
Prabhu Dayal as PW-9, also, Ram Sen
Singh as PW-9, Manju as PW-10, Inspector
Munshi Lal as PW-11.

7. After conclusion of prosecution
witnesses, appellant was examined under
Section 313 Cr.P.C. In his examination,
appellant clearly denied his involvement in
the murder of Awadhesh and pleaded his
false implication by the first informant. In
additional examination under Section 313
Cr.P.C., the appellant refused to give any
evidence and pleaded that he has been
falsely implicated merely because the
alleged incident occurred in his house.

Contention of Appellant

8. The sole contention of the appellant
is that present case does not fall under
Section 302 IPC but falls under Section 304
IPC, in view of Exception 1 of Section 300
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
IPC because death of Awadhesh if caused
by the appellant is due to losing his self
control after seeing the deceased Awadhesh
in a compromising position with his
daughter, Sapna.

Contention of Prosecution

9. Learned AGA contended that from
the evidence it is clear that the appellant
has killed his daughter Sapna and son of
first
informant
namely
Sheru
alias
Awadhesh with knife and the appellant has
also confessed his involvement in the
aforesaid crime before the Investigating
Officer and police has recovered a bloodstained knife from the place of incident.
Forensic Science Laboratory report also
established this fact and further contended
that from the facts and circumstances,
allegations against the appellant under
Section 302 IPC is clearly established,
therefore, judgement and order of Sessions
Judge is absolutely correct.

Discussion on Prosecution Evidence

10. In the statement, first informant
PW-1 had stated that she is last seen
witness of deceased Awadhesh going to the
house of Dharmendra and she stated in her
statement that on the date of incident i.e.
13.9.2011, she was suffering from fever
and her son Awadhesh was also lying with
her and then son of appellant, Dharmendra,
Roshan came to her house to call deceased
Awadhesh. When she asked Awadhesh
where he is going to, then Awadhesh told
her that Roshan son of Dharmendra had
come to call him. Thereafter, he left the
house and she further stated in the
statement that Harendra had come to her
house between 3 to 4 and told her that her
son has received knife injuries. When she
went at the place of incident, then she
found one policeman and one boy bringing
out his son from the house of appellant. At
the place of incident, she had seen that
there were several injuries on the back of
her son, Awadhesh and blood was oozing
out but because of crowd, she could not see
other injuries. Her son, Awadhesh died on
the way when he was taken to hospital.
Thereafter, she reached police station at
6:00 pm. She also proved tehrir before the
court which was marked as Ext No.Ka-1.
PW-2 Ramu Singh did not support the
prosecution
story,
therefore,
he
was
declared hostile. Similarly, PW-3 Mahendra
Singh also did not support the prosecution
story and he was also declared hostile.
Prosecution witness Awadhesh Bhagat,
PW-4 was a witness of panchayatnama and
he admitted in his statement that he had
signed the panchayatnama and proved the
same as Ext Ka-2. PW-4 also proved memo
of recovery regarding collected bloodstained soil and normal soil with cement
floor and also proved blood-stained pillow,
bed sheet and knife recovered from the
place of incident. PW-5 Harendra Kumar
did not support the prosecution story and
was declared hostile. PW-6 Sub-Inspector
Chaman Prakash Sharma was the formal
witness
regarding
preparation
of
panchayatnama as well as preparation of
memo regarding collection of blood-stained
soil and simple soil, blood-stained bed
sheet, pillow, blood-stained knife recovered
from the place of incident near the dead
body.
PW-7
Dr.
K.N.
Tiwari,
who
conducted the postmortem of dead body of
the deceased Awadhesh Chandra as well as
Kumari Sapna and he proved postmortem
report and stated that death of Awadhesh
and Kumari Sapna was caused due to
antemortem
injuries.
Another,
formal
witness PW-8 Mool Chandra Sharma
proved chik and GD carbon copy. PW-9
Usha, wife of Prabhu Dayal was the tenant
3 All. Dharmendra Kumar Vs. State of U.P.
1253
of appellant-Dharmendra Kumar and she
stated that the deceased used to come to the
house of appellant for the last one year and
she had seen the deceased with Kumari
Sapna at 2:30 pm and she also proved
recovery of dead body of Kumari Sapna
and deceased Awadhesh from the house of
Dharmendra.

11. Ram Sen Singh, who received
investigation on 20.12.2011 was also
examined as PW-9, and submitted that after
recording statement of remaining witnesses
and on completing his investigation, he
found sufficient evidence against the
appellant, therefore, he submitted chargesheet against him and proved the same
before the Court. Prosecution witness PW10 Manju Rani was also the tenant of
appellant-Dharmendra and she also stated
that deceased Awadhesh was having
friendship with the son of appellant and he
used to come to the house of appellant and
on the date of incident at about 2 to 2
during day time, deceased Awadhesh came
to the house of appellant and at that time
Sapna was alone in her house. When she
came out of her room then she had seen
that both Awadhesh and Sapna were lying
injured at the gate and she also proves that
one knife was also found near the body of
Sapna and body of deceased Awadhesh was
lying upon the body of Sapna. Earlier,
Investigating Officer Munshi Lal, was also
examined as PW-11, who proved the fact
that he initiated investigation of this case
and also prepared site plan at the place of
incident and also recorded statement of
witnesses. He also proved the challan of
dead body of deceased Awadhesh as well as
challan of dead body of Sapna, prepared in
the writing of Sub-Inspector Chaman
Prakash Sharma. The Forensic Science
Laboratory report dated 19.09.2013 which
is also on record as Paper No.26Ka/2
shows that recovered knife, pillow, bed
sheet and plaster were blood-stained.

Analysis of Evidence

12. From the perusal of record, it is
clear that deceased Awadhesh came to the
house of appellant where he was seriously
injured because of knife injuries along with
the daughter of the appellant Sapna.
Though, PW-2 and PW-3, PW-5 did not
support the prosecution story and were
declared hostile but from the evidence of
PW-9 Smt. Usha as well as PW-10 Smt.
Manju, who were the tenants in the house
of appellant, it is clearly established that
the dead body of deceased Awadhesh was
found at the house of appellant. Similarly,
from the statement of PW-1, it is also
established that she had lastly seen the
deceased Awadhesh while he left for the
house of appellant on the fateful day.
Therefore, applying the presumption of
Section 106 of The Indian Evidence Act,
1872 (hereinafter referred to as the
'Evidence Act'), it is a duty of the appellant
to explain about the death of deceased
Awadhesh as the dead body of the deceased
was recovered from the house of the
appellant. It also appears from the record
that though initially appellant confessed
under Section 161 Cr.P.C. that he had killed
deceased Awadhesh in a fit of moment
when he saw him in a compromising
position with his daughter Sapna. Sessions
Judge also convicted the appellant on the
ground that body of the deceased Awadhesh
was found from his house and it appears
from circumstantial evidence as well as
subsequent conduct of appellant that he
killed Awadhesh by causing him knife
injury when he had seen him in a
compromising position with his daughter at
his house. Even the appellant did not give
sufficient explanation in his statement
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
recorded under Section 313 Cr.P.C. for
finding the dead body of deceased
Awadhesh from his house. Therefore,
presumption under Section 106 Cr.P.C. was
rightly invoked by the Sessions Judge
against the appellant.

13. Learned counsel for the appellant
also contended that the appellant has
committed the murder of Awadhesh in a fit
of moment due to sudden provocation
when he had seen the deceased Awadhesh
with his daughter Sapna in a compromising
position, therefore, the present case falls
under Section 304 IPC instead of Section
302 IPC. After considering the evidence as
well as the contention of appellant, sole
issue for consideration here is whether the
death of Awadhesh is culpable homicide
not amounting to murder or culpable
homicide amounting to murder.

14. From perusal of evidence, it is
clearly established that appellant has
caused death of Awadhesh by causing him
knife injury when he had seen him in a
compromising position with his daughter.
On perusal of Exception 1 of Section 300
IPC, it is clear that culpable homicide is not
murder if the offender is deprived of the
power of self control by grave and sudden
provocation which causes the death of
person
who
gave
the
provocation.
Exception 1 of Section 300 IPC is being
quoted as below:

"300. Murder.?Except in the cases
hereinafter excepted, culpable homicide is
murder, if the act by which the death is
caused is done with the intention of causing
death, or?

Secondly.?If it is done 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, or?

Thirdly.?If it is done with the intention
of causing bodily injury to any person and
the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature
to cause death, or?

Fourthly.?If the person committing the
act knows that it is so imminently
dangerous that it must, in all probability,
cause death, or such bodily injury as is
likely to cause death, and commits such act
without any excuse for incurring the risk of
causing death or such injury as aforesaid.

Exception
1.?When
culpable
homicide
is
not
murder.?Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident.

The above exception is subject to the
following provisos:?

First.?That the provocation is not
sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.?That the provocation is not
given by anything done in obedience to the
law, or by a public servant in the lawful
exercise of the powers of such public
servant.

Thirdly.?That the provocation is not
given by anything done in the lawful
exercise of the right of private defence.

Explanation.?Whether the provocation
was grave and sudden enough to prevent
the offence from amounting to murder is a
question of fact."

15. Therefore, contention of learned
counsel for the appellant that the present
case does not fall under Section 302 IPC
but falls under Section 304 IPC because
3 All. Dharmendra Kumar Vs. State of U.P.
1255
this case is covered under Exception 1 of
Section 300 IPC appears to be correct
because
on
seeing
Awadhesh
in
a
compromising position with his daughter
appellant lost his self control by grave and
sudden provocation by this incident in
which the deceased Awadhesh was found in
a
compromising
position
with
the
daughter of appellant. In support of his
case, learned counsel for the appellant
has also relied upon judgements of Apex
Court in Criminal Appeal No.734 of
2014 decided on 03.04.2014 in the case
of Saroj @ Suraj Panchal and Anr. Vs.
State of West Bengal as well as
judgement of Andhra Pradesh High Court
in Criminal Appeal No.219 of 2013
decided on 21.05.2020 in the case of
Thiruchanur Amaranath Vs State of
A.P.
rep.
by
Public
Prosecutor
Hyderabad. In the above cases, the
Hon'ble Court observed that death caused
due to sudden provocation does not fall
for the punishment under Section 302
IPC but falls under Section-304 IPC as
the same is not culpable homicide
amounting to murder.

16. In view of the above fact and
circumstances, we are of the opinion that
firstly, there is no direct evidence that the
appellant has caused the death of
deceased
Awadhesh
but
from
the
circumstantial
evidence
as
well
as
presumption under Section 106 of the
Evidence Act, he was held guilty for
causing death of Awadhesh. Secondly,
this fact is also not in dispute that death
of the deceased caused by the appellant
was not premeditated but because of the
fact he lost self control by grave and
sudden provocation because he has seen
deceased Awadhesh in a compromising
position with his daughter Sapna and in
such circumstances, this fact cannot be
disputed that a father after seeing his
daughter in a compromising position with
a person will definitely loose self control
and if he caused death in that spur of
moment, then same will fall under
culpable homicide not amounting to
murder. Even, the Apex Court in the case
of State of U.P. Vs Lakhmi in Criminal
Appeal no.234 of 1993 decided on
12.02.1998 reported in AIR 1998 SC
1007 and in case of Hansa Singh Vs.
State of Punjab in Criminal Appeal
No.248 of 1973 decided on 20.08.1976
reported in AIR 1977 SC 1801 observed
that in such situation, cases will fall
under Section-304 IPC and not under
Section
302
IPC.
Thereafter,
after
considering the evidence on record as
well as the contention of learned counsel
for the appellant and learned AGA, it is
clearly established that the present case
falls under Section 304 IPC and not under
Section 302 IPC, in view of the
Exception
1
of
Section
300
IPC.
Therefore, appellant deserves to be
convicted under Section 304 IPC.

17. Therefore, present appeal is
partly allowed and impugned judgement
of Session is modified to the extent of
substituting the punishment of appellant
under
Section
302
IPC
with
the
punishment under Section 304 IPC with
the imprisonment of ten years along with
fine of Rs.40,000/-. In case of nonpayment of fine, the appellant will further
undergo one year imprisonment. Period
spent by the appellant in jail during
pendency of trial as well as pendency of
present appeal will be adjusted in
imprisonment imposed by this order and
if appellant has already completed ten
years in jail, then he should immediately
be released on depositing the fine, if he is
not wanted in any other case.
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 3 ILRA 1256
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.03.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matter Under Article 227 No. 6654 of 2020

Km. Chandana Mukherji ...Petitioner
Versus
A.D.J., Spl. Judge P.C. Act, Lko. & Anr.
 ...Respondents

Counsel for the Petitioner:
Arun Kumar Srivastava

Counsel for the Respondents:
Ghanshyam Yadav

Civil Law -Code of Civil Procedure, 1908 -
Order XXVI Rule 9 - Application for
issuance
of
commission-
suit
of
cancellation of sale deed and permanent
injunction dismissed by trial court- order
under challenge- purpose of issuance of
commission- ascertain alleged possession
of the plaintiff- Plaintiff liable to succeed
on his own footing- Order XXVI Rule 9 not
applicable for purpose of collection of
evidence for plaintiff- order of trial court
upheld- Petition dismissed.

HELD: A perusal of the aforesaid provision
makes it evident that commission to make local
investigations can be permitted by the court
where it deems local investigation to be
requisite or proper for the purpose of
elucidating
any
matter
in
dispute
or
ascertaining market value of any property, or
amount of any mesne profit or damages or
annual net profits. The purpose of issuance of
commission as such is evident from the
conditions indicated thereunder itself which is
only for the purposes of elucidating primarily
any matter in dispute. The provisions of Order
XXVI Rule 9 of the Code do not make it
applicable for the purposes of collection of
evidence on behalf of the plaintiff.
Upon applicability of aforesaid judgments in the
present facts and circumstances of the case, it is
evident
that
application
for
issuance
of
commission to conduct an investigation and
examination regarding possession of parties to a
dispute would not be maintainable in terms of
Order XXVI Rule 9 of the Code as observed
herein above particularly when there is no
explanation furnished by the plaintiff that he
could not have access to any documents
required for proving his possession over suit
property. Even otherwise, it is impossible for a
commission to decide possession of a particular
party to dispute over the suit property only on
the basis of a cursory examination

It has already been observed herein above that
applications under Order XXVI Rule 9 cannot be
allowed merely for purposes of facilitating the
case of one or the other party and it is not the
business of the courts to discharge burden of
evidence of either party

Petition dismissed. (E-14)

List of Cases cited:

1. Remco Industrial Workers House Building
Coop. Society Vs Lakshmeesha M. (2003)11 SCC
666

2. Radhey Shyam & anr. Vs A.D.J. 2011 (2)
CRC 469

3. New Meena Sahkari Awas Samiti Ltd.
through its President Vs A.D.J., Lucknow passed
in Misc. Single No. 2267 of 2012

(Delivered by Hon'ble Manish Mathur, J.)

1.

Heard
learned
counsel
for
petitioner and learned counsel appearing on
behalf of opposite party No.2.

2. Petition under Article 227 of
Constitution of India has been filed
assailing order dated 10th January, 2018
passed by trial court rejecting petitioner's
application for issue of commission under
Order 26 Rule 9 of the Code of Civil