# Gaurav Kumar Srivastava v. State of U.P

- **Citation:** (2021) 11 ILRA 83
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-03
- **Case number:** Jail Appeal No. 4556 of 2014
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-kumar-srivastava-v-state-of-u-p-46630
- **Pages:** 5

## Headnote

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-challenge
to-convictionprosecution has not disclosed any motive-PW-2
inimical witness, also stated that he never saw
any altercation between son and motherDanda was recovered on the pointing out the
appellant from inside the Chappar of his house
and blood was found on it-PW-1 and PW-2 are
not eye-witnesses as they were not present on
the spot-However, injuries were sufficient in
the ordinary course of nature to cause death,
therefore, the appellant held guilty under
Section 304 (Part-I) instead of under section
302 IPC.(Para 1 to 24)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

11 All. Gaurav Kumar Srivastava Vs. State of U.P.
83
two years from seven years. Imposition of fine
and imprisonment in default of fine shall remain
intact for the offences under Sections 452 and
506 I.P.C. Sentence under Section 323 r.w.s. 34
I.P.C. and under Section 504 I.P.C. shall remain
intact.

21. Appellants Jasveer, Raju, Amit @
Guddu and Rajan are sentenced for three years
rigorous imprisonment under Section 324 I.P.C.

22. Appellant Amit @ Guddu is sentenced
for three years rigorous imprisonment and
Rs.5,000/- fine. He shall undergo simple
imprisonment for three months in case of default
of fine.

23.

All
the
sentences
shall
run
concurrently.

24. In the result, appeal is partly allowed
as modified aforesaid. Copy of this judgment
and record be transmitted to concerned court
below for ensuring compliance.
----------
(2021)12ILR A83
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 4556 of 2014

Gaurav Kumar Srivastava ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Amit Tripathi, Sri Santosh Kumar
Yadav, Sri Mukesh Kumar

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,
1860-Section
302-challenge
to-convictionprosecution has not disclosed any motive-PW-2
inimical witness, also stated that he never saw
any altercation between son and motherDanda was recovered on the pointing out the
appellant from inside the Chappar of his house
and blood was found on it-PW-1 and PW-2 are
not eye-witnesses as they were not present on
the spot-However, injuries were sufficient in
the ordinary course of nature to cause death,
therefore, the appellant held guilty under
Section 304 (Part-I) instead of under section
302 IPC.(Para 1 to 24)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Tuka Ram & ors.. Vs St. of Mah. (2011) 4 SCC 250

2. BN Kavadakar & anr. Vs St. of Kar. (1994) Supp (1)
304

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the
appellant- Gaurav Kumar Srivastava against the
judgment and order dated 28.08.2014, passed by
Additional Sessions Judge, Farrukhabad, in
Session Trial No.117 of 2012 (State vs. Gaurav
Kumar Srivastava) arising out of Case Crime
No.137 of 2012 under Section 302 IPC, Police
Station-Kamlaganj,
District-
Farrukhabad,
whereby the appellant-accused was convicted
and sentenced for life imprisonment and fine of
Rs.5,000/- under Section 302 IPC. He was
further directed to undergo six months of simple
imprisonment, in case of default of fine.

2. The brief facts of this case are that on
31.03.2012, a written report was submitted by
complainant
Sitaram
at
Police
Station-
Kamalganj, District- Farrukhabad stating that
besides his house in village Sindhirampur, there
is house of his elder sister Smt. Phoolan Devi,
84 INDIAN LAW REPORTS ALLAHABAD SERIES
wife of late Rakesh Chandra. Today on
31.03.2012 at about 10:30 PM, Phoolan Devi's
son Gaurav Kumar had murdered his mother
Phoolan Devi by using Danda. On hearing the
noise, he and Ram Saran of his village ran to the
place of occurrence and saw the occurrence.
They tried to catch Gaurav but he ran away. On
the basis of this written report, a first
information was registered at police station-
Kamalganj on Case Crime No.137 of 2012
under Section 302 IPC.

3. S.I. Raj Kishore Awasthi took up the
investigation. Inquest proceedings of deceased
Phoolan Devi were conducted. Post mortem was
conducted by Dr. Kamlesh Kumar Sharma and
post mortem report was prepared. During the
course of investigation, the I.O. recorded the
statements of witnesses under Section 161
Cr.P.C., site-plan was prepared. Accused was
arrested and the Danda, used in crime, was
recovered on his pointing out from his house,
which was sent for chemical examination, the
report of which indicated that it was having
blood stains. After completing the investigation,
I.O. submitted charge sheet against the accusedappellant. The case being exclusively triable by
court of sessions was committed to the sessions
court by the competent Magistrate for trial.

4. Learned trial court framed charges
against the accused-appellant under Section 302
IPC. The accused denied the charges and
claimed to be tried.

5. To bring home the charges, the prosecution
produced following witnesses, namely:

1.
Sitaram
PW1
2.
Ram Saran
PW2
3.
Constable
Devendra
Kumar Singh
PW3
4.
Dr.
Kamlesh
Kumar
Sharma
PW4
5.
S.I. Raj Kishore Awasthi
PW5
6.
S.I. Sunil Kumar Tiwari
PW6

6. In support of the ocular version of the
witnesses, following documents were produced
by prosecution and contents were proved by
leading the evidence:

1.
Written Report
Ex. Ka1
2.
FIR
Ex. Ka2
3.
Recovery-memo of bloodstained and plain-earth
Ex. Ka12
4.
Recovery-memo of Danda Ex. Ka13
5.
P.M. Report
Ex. Ka4
6.
Panchayatnama
Ex. Ka6
7.
Charge-sheet
Ex. Ka15
8.
Report of FSL
Ex. Ka12

7. Statement of accused was recorded
under Section 313 Cr.P.C., in which he said that
false evidence is produced against him. The
accused did not examine any witness in defence.

8. We have heard Shri Santosh Kumar
Yadav, learned Amicus Curiae appearing for the
appellant, Shri Vikash Goswami, learned AGA
for the State and perused the record.

9. Learned counsel for the appellant first of
all submitted that in this case, complainant has
not disclosed any motive of the crime in FIR nor
the witnesses of fact made any statement
regarding motive before the learned trial court.
There was no occasion and no reason for
appellant to commit the murder of his own
mother. Therefore, silence of motive creates a
big doubt on prosecution case and it cannot be
inferred that accused-appellant committed the
crime. It is also submitted that PW1 Sitaram is
complainant and in his statement, he has clearly
stated that he wrote the report of this case on
dictation of Sub-Inspector of police. It clearly
indicates that appellant is falsely implicated by
11 All. Gaurav Kumar Srivastava Vs. State of U.P.
85
the complainant with the consultation of the
police.

10. Learned counsel for the appellant
vehemently submitted that there is no eyewitness of the occurrence. Prosecution has
produced two witnesses of fact, namely, PW1-
Sitaram and PW2- Ram Saran. PW1- Sitaram
has deposed that when he reached to the scene of
crime, accused Gaurav was not there. Lastly in
his statement, he has specifically said that he
could not tell who had murdered Phoolan Devi.
He was not on the spot, so he could not tell that
she was murdered by miscreants or some other
persons. It shows that PW1 has not seen any
occurrence, therefore, his testimony cannot be
relied on. It is further submitted that PW2- Ram
Saran is also not the eye-witness. He has said in
his cross-examination that he was the first
person to reach at the place of occurrence and
saw the incident with his own eyes but
complainant PW1 has stated that when he
reached to the place of occurrence, Gaurav was
not there and the people, who reached to the spot
after him, also did not see Gaurav at the place of
occurrence. Hence, on the basis of aforesaid
statement, made by the PW1, the statement of
PW2- Ram Saran becomes falsified that he saw
the occurrence.

11. Learned counsel for the appellant next
submitted that as per statement of PW1,
Virendra and Munnilal reached to the spot prior
to him but these Virendra and Munnilal were not
produced by the prosecution in evidence.
Regarding the recovery of Danda, the learned
counsel submitted that false recovery of Danda
is made by the police and Danda is planted.
Moreover, it is recovered from inside the
Chhappar of the house of the appellant, where it
is not natural that a person after committing the
crime like murder will hide the Danda in his
own house. So the recovery of Danda is made
by the police is falsified to give the colour to the
case and learned trial court has not rightly
appreciated the evidence and convicted the
appellant without any direct or circumstantial
evidence on record.

12. Learned AGA for the State rebutted the
arguments advanced on behalf of the appellant
and submitted that PW1 and PW2 supported the
prosecution version and if there are any minor
contradiction, it does weaken the prosecution
case. It is also submitted that the report of FSL
shows that blood was found on the Danda,
recovered on the pointing out of the appellant. It
further
strengthens
the
prosecution
case.
Learned AGA attracted our attention towards
post mortem report of deceased Ex.Ka4 and
submitted that there were six ante mortem
injuries found on the body of the deceased and
such type of injuries could be inflicted by
Danda. In this way, statement of PW1 and PW2
are corroborated by medical evidence.

13. We sift the evidence on record, keeping
in view the rules of appreciation of evidence.
Prosecution has produced two witnesses of fact,
namely, PW1- Sitaram, who is the complainant
and PW2- Ram Saran, who is said to be the eyewitness
as
per
first
information
report.
Complainant also claims himself to be eyewitness in FIR but perusal of statement of PW1
clearly shows that he is not eye-witness at all
because in FIR and examination-in-chief, he has
stated that he reached on the spot and tried to
catch the appellant-Gaurav but could not do so.
While
in
examination-in-chief,
he
has
specifically stated that he reached to the spot
after 10 minutes of hearing the noise and did not
find Gaurav there. At the end of his crossexamination, he has very clearly stated that he
could not tell as to who murdered the Phoolan
Devi because he was not on the spot and he
could not even tell whether some miscreants
murdered her or any other person. So, PW1 is
not at all eye-witness of this case. PW2- Ram
Saran has said that he reached on the spot and
tried to catch Gaurav but he succeeded to run
86 INDIAN LAW REPORTS ALLAHABAD SERIES
away due to dark night but it is pertinent to
mention that PW2- Ram Saran and appellant
were having enmity as stated by complainant
PW1 on account of purchase of some land by
PW2 Ram Saran from father of the appellant.

14. It is relevant that Danda was recovered
by the investigating officer on the pointing out
of appellant from inside the Chhappar of his
house and in FSL, blood was found on it.

15. We have perused the post mortem
report and considered the ante mortem injuries.

16. Considering the evidence of these
witnesses and also considering the medical
evidence including postmortem 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 IPC 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."

17. 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 Sections
299 and 300 IPC. 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.
A
person
commits
culpable
homicide if 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
injury as is mentioned above.

18. In the case in hand, PW4- Kamlesh
Kumar Sharma found following ante mortem
injuries on the body of the deceased:-

(i) Lacerated wound 5x2cm bone deep
over nose and middle part of forehead underline
bone fracture.

(ii) Lacerated wound 3.5x1.5cm bone
deep over right cheek underline bone fracture.

(iii) Lacerated wound 3x1 cm bone
deep just below injury No.2.

(iv) Lacerated wound 1.5x1 cm right
angle of mouth and rounded by abraded
contusion measuring marks 4x2 cm and 2x1.5
cm and neck bone was fractured.

(v) Multiple abraded contusion on
abdomen measuring 4x1.5 cm.

(vi) Contusion 3.5x2 cm on right
shoulder.
11 All. Munna Singh Vs. State
87

19. In his opinion Dr. Kamlesh Kumar
Sharma PW4 has stated that cause of death
could be by strangulation and injuries sustained
in neck and on head. But in his crossexamination doctor has specifically stated that
there were no signs/marks of strangulation.
Therefore, keeping in view the entire evidence,
oral as well as documentary, it comes in our
mind that injury No.1, which was on the
forehead, was responsible for the death of the
deceased because injury No.4 in which part of
hyoid bone was found fractured could be due to
strangulation but as per medical evidence there
were no signs of strangulation. In this way,
injury No.4 does not match with the committing
the crime as stated by the complainant in his FIR
and statements of PW1 and PW2.

20. On overall scrutiny of the facts and
circumstances of the case coupled with the
opinion of the medical officer and considering
the principle laid down by the Hon'ble Apex
Court in the case of Tuka Ram and others vs.
State of Maharashtra [(2011) 4 SCC 250] and
in the case of BN Kavadakar and another vs.
State of Karnataka [1994 Supp (1) 304], we are
of the considered opinion that the offence would
be punishable under Section 304 (Part-I) IPC.

21. From the upshot of the aforesaid
discussion, it appears that the death of deceased,
caused by the appellant, was not intended
because prosecution has not disclosed any
motive. In this case, motive has great relevance
because the relation between the appellant and
deceased was of son and mother. There could be
some motive for the son to kill his mother. PW2-
Ram Saran, inimical witness, also said in his
statement that he never saw any altercation
between appellant and his mother prior to this
occurrence. Hence, it can be safely assumed that
killing of his mother was never intended by the
accused-appellant though the injuries were
sufficient in the ordinary course of nature to
cause death, therefore, the instant case false
under the Exceptions 1 and 4 to Section 300
IPC.

22. In the light of the foregoing
discussions, the appeal is liable to be allowed in
part. Appellant is held guilty for commission of
the offence under Section 304 (Part-I) IPC
instead of offence under Section 302 IPC.

23. Hence, the conviction and sentence
awarded to the appellant for the offence under
Section 302 IPC is converted into the offence
under Section 304 (Part-I) IPC and appellant is
sentenced under Section 304 (Part-I) IPC for 10
years rigorous imprisonment and fine of
Rs.5,000/-. The appellant shall undergo further
simple imprisonment for one year in case of
default of fine.

24. Accordingly, the appeal is partly
allowed, as modified above.
----------
(2021)12ILR A87
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 5083 of 2015

Munna Singh ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Anurag Shukla, Sri Indra Kumar
Chaturvedi, Sri Jagram Singh, Sri Sunil Kumar

Counsel for the Opposite Party:
A.G.A., Sri Brijesh Singh, Sri Prem Shankar

A. Criminal Law-Code of Criminal Procedure,
1973-Section 374(2) - Indian Penal Code,