# Gulli @ Nand Kishore (In Jail) v. State

- **Citation:** Jail Appeal No. 6361 of 2008
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-20
- **Case number:** Jail Appeal No. 6361 of 2008
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gulli-nand-kishore-in-jail-v-state-46474
- **Pages:** 11

## Headnote

Criminal law- Indian Penal Code - Sections
323/34, 324, 325/34 & 302 - Appeal against
conviction.Consider under section 304 IPC partI
Held :- The nature of injuries on part of body
and weapon involved and determining factor.
(Para 24)
Sentences reduced to period already undergone.
(32)

Appeal partly allowed. (E-2)

List Of Cases Cited:-

## Text

738 INDIAN LAW REPORTS ALLAHABAD SERIES
cancelled and they are directed to surrender
before
the
Chief
Judicial
Magistrate
concerned immediately to serve out the
sentence imposed upon them by the trial
court and affirmed by us. In case they fail
to surrender, the Chief Judicial Magistrate
concerned is directed to take appropriate
action against them in this regard.

137. Let a copy of this judgment and
order along with original record be
transmitted to the learned trial court for
information and compliance.

138. Judgment certified and be placed
on record.
----------
(2020)03-05ILR A738
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.02.2020

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE SHEKHAR KUMAR YADAV, J.

Jail Appeal No. 6361 of 2008
&
Criminal Appeal No. 950 of 2005

Gulli @ Nand Kishore ...Appellant(In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Pradeep Kumar Mishra(A.C.)

Counsel for the Opposite Party:
Sri J.K. Upadhyay, A.G.A.

Criminal law- Indian Penal Code - Sections
323/34, 324, 325/34 & 302 - Appeal against
conviction.Consider under section 304 IPC partI
Held :- The nature of injuries on part of body
and weapon involved and determining factor.
(Para 24)
Sentences reduced to period already undergone.
(32)

Appeal partly allowed. (E-2)

List Of Cases Cited:-

1. St. of A.P. Vs. Rayavarapu Punnayya & anr.
(1976) 4 SCC 382,

2. Budhi Singh Vs. St. of H.P. (2012) 13 SCC
663,

3. Kikar Singh Vs. St. of Raj. (1993) 4 SCC 238,

4. Surain Singh Vs. The St. of Punj., Criminal
Appeal No.2284 of 2009, decided on April 10,
2017,

5. Ankush Shivaji Gaikwad Vs. St. of Mah.,
(2013) 6 SCC 770,

6. Kumaran Vs. St. of Kerala & anr. (2017) 7
SCC 471.

(Delivered by Hon'ble Pritinker Diwaker,
J.)

1. As these two appeals arise out of a
common
judgment
and
order
dated
16.02.2005 passed by Additional Sessions
Judge/Fast Track Court No.11, Jalaun at
Orai, in Sessions Trial No.111 of 2003
(State Vs. Gulli @ Nand Kishore and
others), they are being disposed of by this
common order.

2. By the impugned judgment, the
Court below has convicted appellant Gulli
@ Nand Kishore under Sections 323/34,
324, 325/34 and 302 of IPC and sentenced
him to undergo three months imprisonment,
with a fine of Rs.500/-, in default of
payment
of
fine,
10
days
simple
imprisonment; one year imprisonment, with
a fine of Rs.1,000/-, in default thereof, two
months simple imprisonment; two years
3-5 All. Gulli @ Nand Kishore Vs. State
739
rigorous imprisonment, with a fine of
Rs.1,500/-, in default thereof, four months
additional simple imprisonment; and life
imprisonment, with a fine of Rs. 10,000/-
respectively.

The Court below has further
convicted appellant Babu Lal, Khachere @
Ashok and Mantole @ Santosh under
Sections 323, 325, 324/34 and 302/34 and
sentenced them to undergo three months
imprisonment, with a fine of Rs.500/- each,
in default of payment of fine, 10 days
simple
imprisonment;
two
years
imprisonment with a fine of Rs.1,500/-
each, in default thereof, four months simple
imprisonment; one year imprisonment, with
a fine of Rs.1,000/-, in default thereof, two
months additional simple imprisonment;
and life imprisonment with a fine of Rs.
10,000/- respectively with a direction that
all the sentences to run concurrently.

3. As per prosecution case, Kiran
Devi W/o of Ratan Kumar and sister-in-law
of deceased Prem Narayan was having
affair with the accused Gulli and the said
relation was not liked by the deceased and
he had shown his anger. Accused Gulli felt
insulted because of this objection and on
18.03.2003, when PW-4 Durjan was
returning to his house, at about 10.00 p.m,
he was apprehended by the accused persons
and was also subjected to abusive language.
Seeing
this,
one
Siya
Sharan
(not
examined) informed PW-1 Surendra and
PW-3 Prem Narayan about the said incident
and it is said that Prem Narayan alongwith
his wife Laxmi had gone to save his father.
When Prem Narayan reached to the place
of occurrence, he saw accused persons
quarreling with his father. Prem Narayan
intervened in the matter and it is said that
accused Gulli caused axe injuries to him.
Further case of the prosecution is that when
PW-4 Durjan and PW-5 Laxmi also
intervened in the matter, they were beaten
by other accused persons by club and axe.
According to prosecution case, number of
villagers gathered there and saw the
occurrence. On account of beating given to
Prem Narayan by accused Gulli, he died at
the spot itself.

4. On the basis of written report,
Ex.Ka.1, lodged by PW-1 Surendra on
19.03.2003, FIR, Ex.Ka.16, was registered
against all the four accused persons, under
Sections 302, 324, 323, 504 and 506 of
IPC.

5. Inquest on the dead body was
conducted on 19.03.2003, vide Ex.Ka.2,
and the body was sent for Postmortem,
which was conducted on the same day vide
Ex.Ka.6 by PW-6 Dr. Maniram. Autopsy
Surgeon has noticed following four injuries
on the body of the deceased: -

(i) Wound is 9 cm. above right ear
pinna. Skull bone broken in two pieces. Brain
Membranes - ruptured and cerebrum exposed.
Incised wound of 11 cm X 2.5 cm present on
right side of skull. is Horizontal.

(ii) Incised wound of 9 cm X 5 cm
present on anterior end left side of neck. Wound
is 4 cm deep. Trachea, Internal jugular vein,
common and carotid artery and esophagus are
cut. External jugular vein, sternohyoid muscle,
Sterno eleidce mastoid muscle is also cut.
Wound is transverse and is 3.5 cm above to
clavicle.

(iii) Incised wound of 5 cm X 1.5 c.m
present on right side of chest 10 cm below right
nipple. Wound is oblique and is 2.5 cm deep.

(iv) Incised wound of 6 cm X 3 cm
present on right hand metacarpal below thinner
eminauce is broken and wound is passed from
dorsal to palmar side.
740 INDIAN LAW REPORTS ALLAHABAD SERIES

Cause of Death - Homicidal
death caused due to hemorrhage by ante
mortem injuries.

6. Injured Durjan (PW-4) and Laxmi
(PW-5) were medically examined, vide
Ex.Ka.4 and Ex.Ka.5, by PW-6 Dr.
Maniram who found following injuries on
them.

Injuries on Durjan (PW-4):

(i) Lacerated wound of 4 cm X
0.8 cm present on left side of skull 11 cm
above to left ear pinna. Wound is deep up
to bone. Fresh bleeding seen on clearing
the wound. Patient is conscious.

(2) Swelling seen on right arm in
mid portion. Injury kept under observation
and Advised X-Ray right arm.

(3) 3 cm X 2 cm swelling seen on
lift scapular region of back.

(4) Abrasion of 1.5 cm X 0.5 cm
present on dorsal part of left arm 5 cm
below elbow joint. Colour of abrasion is
red.

Injuries on Laxmi (PW-5):

(i) Incised wound of 7 cm X 4 cm
present on dorsal part of right hand on
middle part, wound is extending from 1 cm
below writs joint up to metacarpal
pharyngeal join. Tendon Fifth Metacarpal
bone found to be cut and fracture. Fresh
bleeding seen on vertical side. Wound is
extending 2 cm below base of ring finger.

(2) Incised wound of 5 cm. X 1
cm present on right side of skull 12 cm
above to right ear pinna. Bleeding seen on
clearing the wound. Wound is deep upto
bone.

7. The trial Judge has framed charge
against all the accused-persons under
Sections 504, 506(2), 323/34, 324, 325,
302/34 of IPC.

8. So as to hold accused persons
guilty, the prosecution has examined nine
witnesses. Statements of accused persons
were also recorded under Section 313 of
Cr.P.C in which, they pleaded their
innocence and false implication.

9. By the impugned judgment, the
trial Judge has convicted and sentenced the
appellants as mentioned in para 1 of this
judgment. Hence this appeal.

10. Sri Pradeep Kumar Mishra,
learned counsel for the appellant in
Criminal Appeal No. 6361 of 2008
submits:-

(i) that the act of accused
appellant Gulli would not fall within the
definition of murder and it would be
culpable homicide not amounting to
murder. He submits that quarrel was going
on between Durjan and the accused persons
and when deceased Prem Narayan reached
to the place of occurrence, he seems to
have
been
subjected
to
injuries
unfortunately, resulting his death.

(ii) that the offence has been
committed without premeditation in a
sudden fight in the heat of passion upon a
sudden quarrel and, therefore, it would fall
under Section 304 part-I of IPC.

(iii) that accused appellant Gulli
is in jail since last 17 years and, therefore,
his conviction be altered into Section 304
part-I of IPC and sentence be reduced to
the period already undergone by him. It has
been argued that appellant Gulli is a poor
person; he is contesting this appeal through
the legal aid and, therefore, he can pay very
reasonable compensation to the deceased
family.

11. In respect of accused-appellants,
namely, Babu Lal, Khachere and Mantole
3-5 All. Gulli @ Nand Kishore Vs. State
741
in Criminal Appeal No. 950 of 2005, it has
been argued by Shri Vishnu Kant Tiwari
that:-

(i) the accused-appellants have
not caused any injury to deceased Prem
Narayan and, therefore, they cannot be
convicted with the aid of Section 34 of IPC
for committing the murder of the deceased.

(ii) except accused Gulli, other
accused persons can, at best, be convicted
under Section 325 of IPC for which, they
have already remained in jail for about 4
months. It has been argued that these three
appellants
are
also
willing
to
pay
reasonable compensation to injured Durjan.

12. On the other hand, supporting the
impugned judgment and order, it has been
argued by the State Counsel that the
conviction
of
the
appellants
is
in
accordance with law. He submits that apart
from accused Gulli, the other accused
persons are also liable to be convicted with
the aid of Section 34 of IPC and, therefore,
their conviction under Section 302/34 of
IPC is in accordance with law.

13. We have heard counsel for the
parties and perused the record.

14. PW-1 Surendra, is a brother of the
deceased and is also a son of PW-4 Durjan.
He has stated that the deceased was
residing at Orai, was working as a labour
and at the eve of Holi, he came to his
village. His sister-in- law Kiran Devi W/o
Ratan Kumar was having relation with
accused Gulli, which was objected by
deceased Prem Narayan, as a result of
which accused Gulli was not having good
relation with the deceased. On the date of
occurrence, when his father was returning
to his village, after celebrating the Holi
festival, at about 10.00 PM, near one
culvert, accused persons apprehended him
and started abusing him. This incident was
witnessed by Siya Sharan (not examined)
who immediately informed the same to him
(this witness) and also to Prem Narayan. In
turn, he, Prem Narayan and Laxmi had
gone to the place of occurrence and there,
they saw the accused persons carrying
weapons with them and were quarreling
with Durjan. When deceased Prem Narayan
intervened in the matter, accused Gulli
caused axe injury on his head and likewise,
he also caused injury to PW-5 Laxmi and to
Durjan. He states that hearing his cries,
other villagers also gathered their and then
the accused persons fled away from the
spot. He states that deceased succumbed to
his injuries at the place of occurrence itself.
In his cross-examination but for minor
contradiction, this witness remained firm
and has reiterated as to the manner in
which Prem Narayan was done to death by
accused Gulli and Durjan and Smt. Laxmi
were subjected to injuries.

15. PW-2 Hari Babu is a witness of
inquest.

16. PW-4 Durjan is a father of the
deceased
Prem
Narayan
and
PW-1
Surendra. He has stated that accused Gulli
was having relation with his daughter-inlaw Kiran, which was not liked by the
deceased who had asked all the family
members not to allow appellant Gulli to sit
with the family members and on account of
this, accused Gulli was not having good
relation with the deceased. At the eve of
Holi, when he was returning to his village,
at about 10.00 p.m. he was apprehended by
the accused persons and at that time,
accused Gulli was having axe, whereas
other accused persons were having club
with them. He was being abused by the
accused persons and while the quarrel was
742 INDIAN LAW REPORTS ALLAHABAD SERIES
going on, deceased Prem Narayan, PW-1
Surendra and PW-5 Smt. Laxmi (PW-5)
reached to the place of occurrence and then
accused appellant Gulli gave a blow of axe
on the head of the deceased, resulting his
death, whereas he (Durjan) and PW-5
Laxmi were also beaten by them.

17. PW-5 Smt. Laxmi, is the wife of
the deceased, has made almost similar
statement as has been made by PW-4
Durjan and PW-1 Surendra. She too has
stated that her sister-in law (Jethani) -
Kiran was having relation with appellant
Gulli and her husband came to know about
the same who raised his objection. On the
date
of
occurrence,
accused
persons
apprehended her father-in law and when
she along with the deceased and PW-1
Surendra had gone to intervene in the
matter, her husband was done to death by
accused appellant Gulli, who caused injures
on the head of the deceased. She states that
she was also beaten by Gulli, whereas her
father-in-law PW-4 Durjan was beaten by
other accused persons.

18. PW-6 Dr. Maniram, medically
examined PW-4 Durjan, vide Ex.Ka.4, and
noticed four injuries on his body. He further
examined PW-5 Laxmi, vide Ex.Ka.5, and
noticed two injuries, including a fracture of
a metacarpal and damage to tandom. He
also did postmortem of the deceased, vide
Ex.Ka.6, and noticed four injuries.

19. PW-7 Dr. T.D. Gupta did X-Ray
of PW-5 Smt. Laxmi, vide Ex.Ka.7, and
PW-4 Durjan, vide Ex.Ka.8. He noticed
fracture of forth and fifth metacarpal of
right arm of Durjan.

20. PW-8 Jai Narain Verma, is the
Investigating Officer, has duly supported
the prosecution case. PW-9 Jagat Pal Singh
assisted during investigation.

21. Close scrutiny of the evidence
makes it clear that on 18.03.2003 when
PW-4 Durjan was returning to his village,
on the way at about 10.00 p.m., he was
apprehended by the accused persons. There
was exchange of words between them and
information of this quarrel was given to
deceased Prem Narayan, PW-1 Surendra
and PW-5 Smt. Laxmi who immediately
reached to the place of occurrence and
while they were trying to intervene in the
matter, they were also assaulted by the
accused persons. As per evidence, it is the
accused appellant Gulli who caused axe
injuries on the head of the deceased,
resulting his death. There is no evidence
that except accused Gulli any other accused
persons caused injuries to deceased Prem
Narayan.
Evidence
also
reflects
that
accused Babu Lal, Kachere @ Ashok,
Mantole @ Santosh caused injuries to PW4 Durjan, whereas injury to PW-5 Smt.
Laxmi was caused by Gulli.

22. Considering all these aspects of
the case, complicity of the accused persons
in commission of the offence has been duly
proved by the prosecution. If the evidence
is viewed minutely, it is apparent that the
deceased was done to death by Gulli and as
the basic ingredients of Section 34 are
missing, it is only Gulli who is liable to be
convicted under Section 302 of IPC,
whereas rest of the accused persons namely
Babu Lal, Khachere @ Ashok, Mantole @
Santosh are not liable to be convicted under
Section 302/34 of IPC or under Section 304
Part I or Part II of IPC. Their conviction
under
Section
302/34
of
IPC
for
committing the murder of the deceased is
accordingly set aside.
3-5 All. Gulli @ Nand Kishore Vs. State
743

23. The next question, which arises
for consideration of this Court is as to
whether the act of accused-appellant Gulli
would fall within the definition of 'murder'
or it would be 'culpable homicide not
amounting to murder'. Before proceeding
further, it is relevant to refer to the
provisions of Section 300 of IPC, which
read as under:-

"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.

Exception 2. - Culpable homicide is
not murder if the offender, in the exercise in
good faith of the right of private defence of
person or property, exceeds the power given to
him by law and causes the death of the person
against whom he is exercising such right of
defence without premeditation, and without any
intention of doing more harm than is necessary
for the purpose of such defence.

Exception 3. - Culpable homicide is
not murder if the offender, being a public
servant or aiding a public servant acting for the
advancement of public justice, exceeds the
powers given to him by law, and causes death
by doing an act which he, in good faith,
believes to be lawful and necessary for the due
discharge of his duty as such public servant and
without ill-will towards the person whose death
is caused.

Exception 4. - Culpable homicide is
not murder if it is committed without
premeditation in a sudden fight in the heat of
passion upon a sudden quarrel and without the
offender having taken undue advantage or acted
in a cruel or unusual manner.

Explanation. - It is immaterial in
such
cases
which
party
offers
the
provocation or commits the first assault.

Exception 5. - Culpable homicide
is not murder when the person whose death
is caused, being above the age of eighteen
744 INDIAN LAW REPORTS ALLAHABAD SERIES
years, suffers death or takes the risk of
death with his own consent."

24. Exception 4 to Section 300 of the
IPC applies in the absence of any
premeditation. This is very clear from the
wordings of the Exception itself. The
exception contemplates that the sudden
fight shall start upon the heat of passion on
a sudden quarrel. The fourth exception to
Section 300 IPC covers acts done in a
sudden fight. The said Exception deals with
a case of provocation not covered by the
first exception, after which its place would
have been more appropriate. The Exception
is founded upon the same principle, for in
both there is absence of premeditation. But,
while in the case of Exception 1 there is
total deprivation of self-control, in case of
Exception 4, there is only that heat of
passion which clouds men's sober reason
and urges them to deeds which they would
not otherwise do. There is provocation in
Exception 4 as in Exception 1, but the
injury done is not the direct consequence of
that provocation. In fact, Exception 4 deals
with cases in which notwithstanding that a
blow may have been struck, or some
provocation given in the origin of the
dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct
of both parties puts them in respect of guilt
upon an equal footing. A "sudden fight"
implies mutual provocation and blows on
each side. The homicide committed is then
clearly
not
traceable
to
unilateral
provocation, nor could in such cases the
whole blame be placed on one side. For if it
were so, the Exception more appropriately
applicable would be Exception 1. There is
no previous deliberation or determination
to fight. A fight suddenly takes place, for
which both parties are more or less to be
blamed. It may be that one of them starts it,
but if the other had not aggravated it by his
own conduct it would not have taken the
serious turn it did. There is then mutual
provocation and aggravation, and it is
difficult to apportion the share of blame
which attaches to each fighter. The help of
Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in a
sudden fight, (c) without the offenders
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 IPC. It takes two persons 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 had
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.
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 a cruel or unusual
manner. The expression "undue advantage"
as used in the provision means "unfair
advantage".

25. Considering all these aspects of
the case, we are of the view that the offence
has been committed without premeditation
in a sudden fight in the heat of passion
upon sudden quarrel and the offender has
not taken undue advantage or acted in a
cruel or unusual manner.
3-5 All. Gulli @ Nand Kishore Vs. State
745

26. The Apex Court in State of A.P.
vs. Rayavarapu Punnayya and Another1
while drawing a distinction between
Section 302 and Section 304 of IPC held as
under:

"12. In the scheme of the Penal
Code, "culpable homicide" is genus and
"murder" its specie. All "murder" is
"culpable homicide" but not vice-versa.
Speaking generally, "culpable homicide"
sans "special characteristics of murder", is
"culpable homicide not amounting to
murder". For the purpose of fixing
punishment, proportionate to the gravity of
this generic offence, the Code practically
recognises three degrees of culpable
homicide. The first is, what may be called,
"culpable homicide of the first degree".
This is the greatest form of culpable
homicide, which is defined in Section 300
as "murder". The second may be termed as
"culpable homicide of the second degree".
This is punishable under the first part of
Section 304. Then, there is "culpable
homicide of the third degree". This is the
lowest type of culpable homicide and the
punishment provided for it is, also, the
lowest among the punishments provided for
the three grades. Culpable homicide of this
degree is punishable under the second part
of Section 304.

21. From the above conspectus, it
emerges
that
whenever
a
court
is
confronted with the question whether the
offence is "murder" or "culpable homicide
not amounting to murder", on the facts of a
case, it will be convenient for it to approach
the problem in three stages. The question to
be considered at the first stage would be,
whether the accused has done an act by
doing which he has caused the death of
another. Proof of such causal connection
between the act of the accused and the
death, leads to the second stage for
considering whether that act of the accused
amounts to "culpable homicide" as defined
in Section 299. If the answer to this
question is prima facie found in the
affirmative, the stage for considering the
operation of Section 300 of the Penal Code,
is reached. This is the stage at which the
court should determine whether the facts
proved by the prosecution bring the case
within the ambit of any of the four clauses
of the definition of "murder" contained in
Section 300. If the answer to this question
is in the negative the offence would be
"culpable homicide not amounting to
murder", punishable under the first or the
second part of Section 304, depending,
respectively, on whether the second or the
third clause of Section 299 is applicable. If
this question is found in the positive, but
the case comes within any of the exceptions
enumerated in Section 300, the offence
would still be "culpable homicide not
amounting to murder", punishable under
the first part of Section 304, of the Penal
Code."

27. In Budhi Singh vs. State of
Himachal Pradesh2, the Supreme Court
held as under:

"18. The doctrine of sudden and
grave provocation is incapable of rigid
construction leading to or stating any
principle of universal application. This will
always have to depend on the facts of a
given case. While applying this principle,
the primary obligation of the court is to
examine from the point of view of a person
of reasonable prudence if there was such
grave and sudden provocation so as to
reasonably conclude that it was possible to
commit the offence of culpable homicide,
and as per the facts, was not a culpable
homicide amounting to murder. An offence
resulting
from
grave
and
sudden
746 INDIAN LAW REPORTS ALLAHABAD SERIES
provocation would normally mean that a
person placed in such circumstances could
lose self-control but only temporarily and
that too, in proximity to the time of
provocation. The provocation could be an
act or series of acts done by the deceased to
the accused resulting in inflicting of injury.

19. Another test that is applied
more often than not is that the behaviour of
the assailant was that of a reasonable
person. A fine distinction has to be kept in
mind
between
sudden
and
grave
provocation
resulting
in
sudden
and
temporary loss of self-control and the one
which inspires an actual intention to kill.
Such act should have been done during the
continuation of the state of mind and the
time for such person to kill and reasons to
regain the dominion over the mind. Once
there is premeditated act with the intention
to kill, it will obviously fall beyond the
scope of culpable homicide not amounting
to murder....."

28. In Kikar Singh vs. State of
Rajasthan3 the Apex Court held as under:

"8. The counsel attempted to bring
the case within Exception 4. For its application
all the conditions enumerated therein must be
satisfied. The act must be committed without
premeditation in a sudden fight in the heat of
passion; (2) upon a sudden quarrel; (3) without
the offender's having taken undue advantage;
(4) and the accused had not acted in a cruel or
unusual manner. Therefore, there must be a
mutual combat or exchanging blows on each
other. And however slight the first blow, or
provocation, every fresh blow becomes a fresh
provocation. The blood is already heated or
warms up at every subsequent stroke. The voice
of reason is heard on neither side in the heat of
passion. Therefore, it is difficult to apportion
between them respective degrees of blame with
reference to the state of things at the
commencement of the fray but it must occur as
a consequence of a sudden fight i.e. mutual
combat and not one side track. It matters not
what the cause of the quarrel is, whether real or
imaginary, or who draws or strikes first. The
strike of the blow must be without any intention
to kill or seriously injure the other. If two men
start fighting and one of them is unarmed while
the other uses a deadly weapon, the one who
uses such weapon must be held to have taken
an
undue
advantage
denying him
the
entitlement to Exception 4. True the number of
wounds is not the criterion, but the position of
the accused and the deceased with regard to
their arms used, the manner of combat must be
kept in mind when applying Exception 4. When
the deceased was not armed but the accused
was and caused injuries to the deceased with
fatal results, the Exception 4 engrafted to
Section 300 is excepted and the offences
committed would be one of murder.

9. The occasion for sudden
quarrel must not only be sudden but the
party assaulted must be on an equal footing
in point of defence, at least at the onset.
This is specially so where the attack is
made with dangerous weapons. Where the
deceased was unarmed and did not cause
any injury to the accused even following a
sudden quarrel if the accused has inflicted
fatal blows on the deceased, Exception 4 is
not attracted and commission must be one
of murder punishable under Section 302.
Equally for attracting Exception 4 it is
necessary that blows should be exchanged
even if they do not all find their target.
Even if the fight is unpremeditated and
sudden, yet if the instrument or manner of
retaliation be greatly disproportionate to the
offence given, and cruel and dangerous in
its nature, the accused cannot be protected
under Exception 4...."

29. All the above three cases were
considered by the Apex Court in Surain
3-5 All. Gulli @ Nand Kishore Vs. State
747
Singh v The State of Punjab4 and
ultimately, it has been held by the Apex
Court in that particular case, that the
accused was liable to be convicted under
Section 304 Part II of IPC and not under
Section 302 of IPC.

30. In view of above, according to us,
case of appellant Gulli would thus fall
under Exception 4 of Section 300 of IPC
and it can be safely held that the appellant
is liable to be convicted for committing
'culpable homicide not amounting to
murder'.

31. Now the question is whether
appellant Gulli is liable to be convicted
under Section 304 Part I or Part II of IPC.
Considering the nature of injuries caused
by him to the deceased, the weapon and the
portion of body of the deceased, we are of
the view that the appellant is liable to be
convicted under Section 304 Part I of IPC
and not under Section 304 Part II of IPC,
whereas other accused persons, namely,
Babu Lal, Khachere @ Ashok, Mantole @
Santosh are liable to be convicted under
Section 323, 325 and 324/24 of IPC.

32. So far as the sentence part is
concerned, accused-appellant Gulli @ Nand
Kishore, has remained in jail for about 17 years.
According to us, ends of justice would be
served, if his sentence is reduced to the period
already undergone by him under Section 304
Part-I of IPC. Order accordingly. He is reported
to be in jail, he be set free forth, if not required
in any other case.

So far as the sentence of other
accused persons, namely, Babu Lal, Khachere
@ Ashok, Mantole @ Santosh is concerned,
they have remained in jail for about 4 months,
the incident occurred on 18.03.2003, they are
reported to be on bail since long and, therefore,
their sentence is also reduced to the period
already undergone by them. They need not
surrender, and their bails bonds are discharged.

33. However, looking to the provisions of
Section 357 of Cr.P.C. and judgment of the
Apex Court in Ankush Shivaji Gaikwad v
State of Maharashtra5, we are of the view
that accused-appellant Gulli @ Nand Kishore is
liable to compensate PW-5 Smt. Laxmi by
paying a total compensation of Rs. 15,000/-
(Fifteen Thousands). Likewise, other accused
persons, namely, Babu Lal, Khachere @ Ashok,
Mantole @ Santosh are liable to compensate
PW-4 Durjan and PW-5 Smt. Laxmi by paying
a total compensation of Rs. 12,000/- to them i.e.
Rs.6,000/- to PW-4 Dujan and Rs.6,000/- to
PW-5 Smt. Laxmi.

Accordingly, accused-appellant Gulli
@ Nand Kishore is directed to deposit Rs.
15,000/- within a period of three months after
being released from jail before the trial court
and, in turn, the trial court shall disburse the said
amount to PW-5 Smt. Laxmi. Accusedappellants Babu Lal, Khachere @ Ashok,
Mantole @ Santosh are directed to deposit
Rs.4,000/- each before the trial court within
three months from today. Out of the total
amount to be deposited by accused-appellants
Babu Lal, Khachere @ Ashok, Mantole @
Santosh, the trial court shall reimburse
Rs.6,000/- to PW-4 Durjan and Rs. 6,000/- to
PW-5 Smt. Laxmi.

In case the appellants fail to
deposit compensation within stipulated
time, the court below shall proceed against
them in the light of judgment of the Apex
Court reported in Kumaran Vs State of
Kerala and another (2017) 7 SCC 471.

34. The appeal is partly allowed.

35. We appreciate the assistance
rendered by Shri Pradeep Mishra, Amicus
748 INDIAN LAW REPORTS ALLAHABAD SERIES
and direct the State Government to pay
Rs.7,000/- to him as his remuneration.
----------
(2020)03-05ILR A748
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.02.2020

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI,
J.

First Appeal From Order No. 51 of 2020

Laxmi Kant Verma & Anr. ...Appellants
Versus
Mandir Shri Mahabir Ji Trust & Ors.
 ...Respondents

Counsel for the Appellants:
Atul Kumar Dwivedi, Govind Sharan Soni

Counsel for the Respondents:
Brijesh Kumar, Avtar Singh

A. Civil Law- Civil Procedure Code -
Section 92 - Public trust or Private trust -
Method to determine nature of trust - Intention
of Testator - Essence of a public or private trust
is to be derived and ascertained from the
expression of any trust deed or on the basis of
any constructive criteria which may be relevant
for the purpose. (Para 8)
Held- 18. Analysing the present case in the
light of principles embodied in the apex court
judgment, it is found that the trust deed
succinctly provides that the endowments stand
dedicated for maintenance of temple and shall
vest in the deity. The management of the
dedicated properties circumscribed amongst the
family descendants of the founder trustee is yet
another significant dimension which leans
towards the nature of trust being a private
Hindu Religious Endowment Trust.
B. Constitution of India - Article 25 -
Freedom of religion - In our life we are
governed by constitutional morality but there is
freedom of religion too within the scope of
Article 25 of the Constitution of India, therefore,
this freedom is equally significant and personal
- It is within the scope of this personal right
that the Religious Endowments Act still has its
application to subserve the will of an individual
within our constitutional framework . (Para7)
Appeal dismissed (E-1)
Cases relied on :-
1. Deoki Nandan Vs. Murlidhar & ors., AIR 1957
SC 133
2. Mulla Gulam Ali & Safiabai D. Trust Vs. Deelip
Kumar & Co.; (2003) 11 SCC 772 (I)
3. Sri Radhakanta Deb Vs. Commissioner of
Hindu Religious Endowments; 1981) 2 SCC 226
4. Kuldip Chand & anr. Vs. Advocate General to
Government of H.P. & ors., (2003) 5 SCC 46
(Delivered by Hon'ble Attau Rahman
Masoodi, J.)

1. Heard Sri Atul Kumar Dwivedi,
learned counsel for the appellants and Sri
Brijesh Kumar Saxena, assisted by Sri Avtar
Singh, learned counsel for respondents no. 1
and 2.

2. Permission for marking respondents
no. 3 and 5 as ''dead' was granted on the
pointing out of a defect in the appeal due to
their death while pendency of the suit.

3. The instant First Appeal From Order
under Section 104 of Code of Civil Procedure
(CPC) has arisen out of a judgement/order
dated 16.1.2020 passed in Misc. Case No.
350/2013 instituted under Section 92 CPC
seeking leave to initiate a suit proceeding for
protection of the properties stated to belong to a
public trust and maintaining accounts thereof.

4. After filing of the misc. case, parties
appear to have exchanged objections and
counter objections. The counter objections