# Gurnam Singh (In Jail) v. State

- **Citation:** (2019) 3 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-15
- **Case number:** Criminal Appeal No. 325 of 1990
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gurnam-singh-in-jail-v-state-44868
- **Pages:** 10

## Headnote

A. Criminal Law-Indian Penal Code,1860 -
Section 302 of IPC - single gunshot injury
to the deceased - Statements of the
accused-appellant recorded under Section
313 of Cr.P.C. - three eyewitnesses, i.e.
PW-1, PW-2 and PW-3 duly supported the
prosecution case - Postmortem report of
the
deceased
also
supports
the
prosecution case where number of pellet
injuries have been found on the body of
the deceased - at the instance of the
appellant, gun was seized which has also
been proved by the prosecution - the
statement of eye-witnesses, complicity of
the appellant in commission of offence
duly proved by the prosecution - entire
chain of events did not occur in a spur of
moment or during sudden quarrel - no
evidence to suggest that it is the deceased
who initiated any hot-talk - Demanding
back his due from the appellant would
under no circumstance be termed as
quarrel on the part of the deceased or
provocation from his side - Instead
906 INDIAN LAW REPORTS ALLAHABAD SERIES
returning
the
due
amount
to
the
deceased or giving him any assurance,
the appellant adopted a drastic approach
and killed him - the case of the
appellant would not fall under any
Exception of Section 300 of IPC - the
trial court was justified in convicting the
appellant under Section 302 of IPC.
(Para-16,17,18)

Criminal Appeal dismissed (E-7)

List of cases cited: -

## Text

3 All. Gurnam Singh Vs. State
905

33. In case version of the appellant
is believed that Ram Bahadur Yadav was
having an evil eye of the deceased and on
the date of incident he visited the house of
the deceased to rape her, it is unbelievable
that a person visiting the house of victim
with an intention to rape her with carry an
axe with him. Even if, he is carrying it,
we are unable to apprehend as to how the
fact of intention of Ram Bahadur Yadav
of committing rape upon the deceased
came into the knowledge of the appellant.
Moreover, as per MLC Ram Bahadur
Yadav also received injuries on her body.
It is also worth-mentioning here that the
deceased named the appellant in the F.I.R.
which after her death is also considered as
her dying declaration. Thus, in case it was
Ram Bahadur Yadav to went to commit
rape upon her, there is no reason for the
deceased to falsely implicate the appellant
by naming him in her statement under
Section 161 of Cr.P.C. The appellant has
also failed to show any reason as to why
Ram Bahadur Yadav (PW-1) or the
Investigating Officer would have falsely
implicated the appellant as there is no
previous enmity between them. Also,
onus to prove the defence was upon the
appellant which she has failed to
discharge
despite
opportunity
being
granted.

34. Thus, in the facts and
circumstances of the case, the present
appeal is devoid of any merit, same
deserves to be dismissed and the same is
hereby dismissed. The fees of Sri Rajesh
Kumar Dwivedi, learned amicus curiae is
fixed at Rs.10,000/- (rupees ten thousand
only).

35. The trial court record along with
copy of this judgment be sent back
forthwith.

36. A copy of this judgment be also
sent
to
the
appellant
through
Superintendent Jail concerned.
----------

(2019)11ILR A905

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.10.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 325 of 1990

Gurnam Singh ...Appellant (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Mohd.Shahanshah Alam Ansari (A.C.)

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

A. Criminal Law-Indian Penal Code,1860 -
Section 302 of IPC - single gunshot injury
to the deceased - Statements of the
accused-appellant recorded under Section
313 of Cr.P.C. - three eyewitnesses, i.e.
PW-1, PW-2 and PW-3 duly supported the
prosecution case - Postmortem report of
the
deceased
also
supports
the
prosecution case where number of pellet
injuries have been found on the body of
the deceased - at the instance of the
appellant, gun was seized which has also
been proved by the prosecution - the
statement of eye-witnesses, complicity of
the appellant in commission of offence
duly proved by the prosecution - entire
chain of events did not occur in a spur of
moment or during sudden quarrel - no
evidence to suggest that it is the deceased
who initiated any hot-talk - Demanding
back his due from the appellant would
under no circumstance be termed as
quarrel on the part of the deceased or
provocation from his side - Instead
906 INDIAN LAW REPORTS ALLAHABAD SERIES
returning
the
due
amount
to
the
deceased or giving him any assurance,
the appellant adopted a drastic approach
and killed him - the case of the
appellant would not fall under any
Exception of Section 300 of IPC - the
trial court was justified in convicting the
appellant under Section 302 of IPC.
(Para-16,17,18)

Criminal Appeal dismissed (E-7)

List of cases cited: -

1. K.M. Nanavati Vs St. of Mah. AIR (1962)
Supreme Court 605

2. Dhirajbhai Gorakhbhai Nayak Vs St. of Guj.
(2003) 9 SCC 322

3. Bavisetti Kameswara Rao Vs St. of A.P. Rep.
by its Public Prosecutor High Court of A.P.,
Hyderabad, (2008) 15 SCC 725

4. Guru Dev Singh Vs St. of M.P., (2011) 5
SCC 721

5. Dhirendra Kumar @ Dhiroo Vs St. of
Uttarakhand, (2015) 89 ACC 623

6. The St. of U.P. Vs Faquirey, (2019) 5 SCC
605

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

1. This appeal arises out of
impugned judgment and order dated
12.2.1990 passed by the IInd Additional
District & Sessions Judge, Muzaffarnagar
in Sessions Trial No. 8 of 1987,
convicting the appellant under Section
302 of IPC and sentencing him to undergo
rigorous imprisonment for life.

2. In the present case, name of the
deceased is Santokh Singh, who had
advanced Rs.4,000/- to appellant-Gurnam
Singh on credit basis and on 29.9.1986, at
about
11.30
am,
when
deceased
demanded back his money, there was
altercation between the two and then it is
said that the appellant caused single
gunshot injury to the deceased, resulting
his death. Incident has been witnessed by
Gurubachan Singh (PW-1), brother-in-law
of the deceased, Jogendra Kore (PW-2),
wife of the deceased and Shravan Singh
(PW-3). On the basis of written report
Ex.Ka.2 lodged by Gurubachan Singh
(PW-1), FIR Ex.Ka.3 was registered at
02.15 pm against the appellant under
Section 302 of IPC.

3. Inquest on the dead body of the
deceased was conducted vide Ex.Ka.7
and the body was sent for postmortem,
which was conducted vide Ex.Ka.6 on
30.9.1986 by Dr. B.K. Agrawal. As the
postmortem report was admitted by the
defence at the stage of trial, Autopsy
Surgeon has not been examined. As per
postmortem report, following injuries
were found on the body of the deceased:

"(1) One gunshot wound of
entry 6 mm x 6 mm x muscle deep on the
(L) forehead 1 cm above eyebrow.

(2) Two gunshot wounds of
entry 6 mm x 6 mm x muscle deep on the
(R) side of nose and upper lip 4 cm away
from each other.

(3) Multiple gun shot wound of
entry in a area of 44 cm x 33 cm on the
(R) neck (R) Chest (R) Abdomen. Each
measuring 6 mm x 6 mm to 1 cm x 1 cm at
varying distance of each other. All are
skin to cavity - deep.

(4) Multiple gun shot wound of
entry in a area of 45 cm x 9 cm on the
outer frontal aspect of (R) upper limb.
Each measuring 6 mm x 6 mm to 1 cm x 1
cm at varying distance of each other.
3 All. Gurnam Singh Vs. State
907

(5) Three gun shot wounds of
entry on the top of (L) shoulder each
measuring 6 mm x 6 mm x muscle deep in
a area of 4 cm x 4 cm.

(6) Two gun shot wound of entry
on the (L) Chest (one at level of (L) nipple
laterally 1 cm away 9' O clock point and
other one 8 cm above) Each measuring 6
mm x 6 mm x muscle deep.

Margins of all above injury are
inverted blackening and tattooing absent.
Direction
from
above
downward
backward."

According to Autopsy Surgeon,
cause of death of the deceased was shock
and haemorrhage as a result of injury
described.

4. While framing charge, the trial
judge has framed charge against the
appellant under Section 302 of IPC.

5. So as to hold appellant guilty,
prosecution
has
examined
seven
witnesses,
whereas
four
defence
witnesses have also been examined.
Statements of the accused-appellant was
recorded under Section 313 of Cr.P.C. in
which, he pleaded his defence that the
firearm injury was caused by his father
and that too, while exercising the right of
private defence.

6. By the impugned judgement, trial
judge has convicted the appellant under
Section 302 of IPC and sentenced him as
stated in para no.1 of this judgement.
Hence, this appeal.

7. Learned counsel for the appellant
submits:

(i) that Gurubachan Singh (PW1), Jogendra Kore (PW-2) and Shravan
Singh (PW-3) are not reliable witnesses
and they have falsely implicated the
appellant.

(ii) that it is the deceased, who
came to the house of the appellant and
had burnt his hutment and in self defence,
father of the appellant caused gunshot
injury resulting unfortunate death of the
deceased. Learned counsel submits that
the appellant had nothing to do with the
incident
and
he
has
been
falsely
implicated.

(iii) that even if the entire
prosecution case is taken as it is, appellant
cannot be convicted for committing the
murder of the deceased and at best, he is
liable to be convicted under Section 304
Part-I or Part-II of I.P.C.

8. On the other hand, supporting the
impugned judgment, it has been argued
by the State counsel that conviction of the
appellant is in accordance with law and
there is no infirmity in the same. He
submits that there is absolutely no
evidence on record to suggest that it is the
father of the appellant, who caused
gunshot injury to the deceased.

9. We have heard learned counsel
for the parties and perused the record.

10. Gurubachan Singh (PW-1), is a
brother-in-law of the deceased and the
informant. He states that marriage of his
sister
Jogendra
Kore
(PW-2)
was
solemnized with the deceased and that
since last five years, he was residing with
his brother-in-law. There was a sale
agreement between the appellant and the
deceased, and the appellant had taken
Rs.8,000/- as advance from the deceased.
When appellant had not executed the sale
deed, deceased demanded back his money
but despite assurance, the same was
refused. On the date of incident, at about
908 INDIAN LAW REPORTS ALLAHABAD SERIES
11.30 am, when he, his sister and the
deceased were going towards the market, on
the way, deceased met the appellant and
demanded back his Rs.4,000/-. However,
instead of giving the amount, appellant
started abusing the deceased and returned
back to his house and soon thereafter, he
came out from his house along with his gun,
climbed up on his terrace and then caused
gunshot injury to the deceased resulting his
death. In cross-examination, this witness
remained firm and nothing could be elicited
from him and rather he has reiterated that
after altercation, the appellant went inside his
house, returned back along with his gun,
climbed up on his terrace and then caused
gunshot injury to the deceased.

11. Jogendra Kore (PW-2) is a wife
of the deceased. Her statement is almost
similar to that of Gurubachan Singh (PW1). She too has categorically stated that
her husband demanded back his money
from the appellant; there was altercation
between them, the appellant went inside
his house, came out along with his gun
and strip of cartridges, climbed up on his
terrace and then caused gunshot injury to
the deceased. In cross-examination, she
too remained firm. She has categorically
denied the fact that any hutment of the
appellant was burnt by anyone.

12. Shravan Singh (PW-3) is another
eye-witness to the incident, has also
supported the prosecution case and stated
that there was altercation between the
appellant and the deceased and when
deceased demanded back his money. The
appellant went on his terrace, exhorted
from there and then caused gunshot injury
to the deceased resulting his death.

13. Virendra Singh (PW-4) recorded
the First Information Report. Satish
Kumar (PW-5) took the body for postmortem and Bharat Singh (PW-6), is a
witness of inquest.

14. Rajendra Singh Yadav (PW-7) is
the
Investigating
Officer,
has
duly
supported the prosecution case. The
Investigating Officer has also proved the
recovery
of
gun
seized
from
the
possession of the appellant.

15. Sheoraj (DW-1) has stated that
the hutment of the father of appellant was
burnt by the deceased and in self defence,
the firearm injury was caused by the
father of the deceased.

16. Close scrutiny of evidence makes
it clear that the appellant had taken some
amount from the deceased for executing a
sale deed and there was dispute between
the two. The deceased used to demand his
money back from the appellant, which was
repeatedly refused by him and on the date
of incident, in presence of Gurubachan
Singh (PW-1), Jogendra Kore (PW-2) and
Shravan Singh (PW-3), the deceased again
demanded back his money, but instead
giving the same, appellant went inside his
house, came out along with his gun and
strip of cartridges, climbed up on his
terrace and after exhorting, caused gunshot
injury to the deceased. All the three eyewitnesses, i.e. PW-1, PW-2 and PW-3 have
duly supported the prosecution case.
Postmortem report of the deceased also
supports the prosecution case where
number of pellet injuries have been found
on the body of the deceased. Furthermore,
at the instance of the appellant, gun was
seized which has also been proved by the
prosecution. Considering the statement of
eye-witnesses, complicity of the appellant
in commission of offence has been duly
proved by the prosecution.
3 All. Gurnam Singh Vs. State
909

17. True it is, that present appears to
be a case of single gunshot injury but the
fact
remains
that
after
altercation,
appellant had sufficient time to cool
down. However, he went inside his house,
came out from the same carrying a gun in
his hands, climbed up on his terrace,
exhorted from there and thereafter caused
gunshot injury to the deceased. The
Supreme Court in the case of K.M.
Nanavati vs. State of Maharashtra1
held as under:

"84. Is there any standard of a
reasonable man for the application of the
doctrine
of
"grave
and
sudden"
provocation ? No abstract standard of
reasonableness can be laid down. What a
reasonable man will do in certain
circumstances depends upon the customs,
manners, way of life, traditional values
etc.; in short, the cultural, social and
emotional background of the society to
which an accused belongs. In our vast
country there are social groups ranging
from the lowest to the highest state of
civilization. It is neither possible nor
desirable to lay down any standard with
precision : it is for the court to decide in
each case, having regard to the relevant
circumstances. It is not necessary in this
case to ascertain whether a reasonable
man placed in the position of the accused
would
have
lost
his
self-control
momentarily or even temporarily when
his wife confessed to him of her illicit
intimacy with another, for we are satisfied
on the evidence that the accused regained
his
self-control
and
killed
Ahuja
deliberately.

85. The Indian law, relevant to
the present enquiry, may be stated thus :
(1) The test of "graveand sudden"
provocation is whether a reasonable man,
belonging to the same class of society as
the accused, placed in the situation in
which the accused was placed would be
so provoked as to lose his self-control. (2)
In India, words and gestures may also,
under certain circumstances, cause grave
and sudden provocation to an accused so
as to bring his act within the first
Exception to Section 300of the Indian
Penal Code. (3) The mental background
created by the previous act of the victim
may be taken into consideration in
ascertaining whether the subsequent act
caused grave and sudden provocation for
committing the offence. (4) The fatal
blow should be clearly traced to the
influence of passion arising from that
provocation and not after the passion had
cooled down by lapse of time, or
otherwise giving room and scope for
premeditation and calculation."

In
Dhirajbhai
Gorakhbhai
Nayak vs. State of Gujarat2, the
Supreme Court held as under:

"10.
For
bringing
in
its
operation it has to be established that the
act was committed without premeditation,
in a sudden fight in the heat of passion
upon a sudden quarrel without the
offender having taken undue advantage
and not having acted in a cruel or unusual
manner.

11. The fourth exception of
Section 300, IPC covers acts done in a
sudden fight. The said Exception deals
with
a
case
of
prosecution
(sic
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
910 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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,
IPCis not defined in 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. 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'."

In Bavisetti Kameswara Rao
vs. State of A.P. Rep. by its Public
Prosecutor
High
Court
of
A.P.,
Hyderabad3, the Supreme Court held as
under:

"13. It is seen that where in the
murder case there is only a single injury,
there is always a tendency to advance an
argument
that
the
offence
would
invariably be covered under Section
304Part II IPC. The nature of offence
where there is a single injury could not be
decided merely on the basis of a single
injury and thus in a mechanical fashion.
The nature of the offence would certainly
depend
upon
the
other
attendant
circumstances which would help the court
to find out definitely about the intention
on the part of the accused. Such attendant
circumstances could be very many, they
being (i) whether the act was premeditated; (ii) the nature of weapon used;
(iii) the nature of assault on the accused.
This is certainly not an exhaustive list and
every case has to necessarily depend upon
the evidence available. As regards the
user of screw driver, the learned counsel
urged that it was only an accidental use
3 All. Gurnam Singh Vs. State
911
on the spur of the moment and, therefore,
there could be no intention to either cause
death or cause such bodily injury as
would be sufficient to cause death.
Merely because the screw driver was a
usual tool used by the accused in his
business, it could not be as if its user
would be innocuous.

17. We also do not accept the
contention of the learned counsel for the
defence which was raised only by way of
a desperate argument that the incident
was sudden and it was without any
premeditation,
thereby
the
learned
counsel wanted to bring the evidence
under Section 304 Part I. In short the
counsel aimed at Exception I of Section
300IPC. Exception 4 was also sought to
be relied upon. We do not think the
evidence available would warrant the
offence covered by Exception 1 as there
was
no
such
grave
and
sudden
provocation on the part of the deceased.
Similarly it was not a case of sudden fight
in the heat of passion nor was it a case of
sudden quarrel without the offender
having taken undue advantage or acted in
a cruel or unusual manner. There is
evidence on record to suggest that there
was a previous altercation and the
accused persons were seething in anger to
take the revenge of the incident which
had taken place on 27th of the same
month. Further, it was only after the
deceased came in front of the shop of the
accused on his motorbike, first there was
an exchange of abuses and it was then
that the incident took place where not
only the accused but even the second
accused is proved to have attacked the
deceased. This could not, therefore, be a
case of a sudden fight. Therefore, the
question of application of Section 304
Part I is also ruled out."

In Guru Dev Singh vs. State of
M.P.4, the Supreme Court held as under:

"26. With regard to law dealing
with Exception 1 toSection 300we may
refer to K. M. Nanavati v. State of
Maharashtra reported in AIR 1962 SC
605 in which this Court held that the
following conditions must be complied
with for the application of Exception 1
toSection 300of the IPC:

"(1) the deceased must have
given provocation to the accused,

(2) the provocation must be
grave,

(3) the provocation must be
sudden,

(4) the offender, by reason of
the said provocation, shall have been
deprived of his power of self-control,

(5) he should have killed the
deceased during the continuance of the
deprivation of the power of self-control,
and

(6) the offender must have
caused the death of the person who gave
the provocation or that of any other
person by mistake or accident."

27. With regard to Exception 4
to Section 300we may refer to Kulesh
Mondal v. The State of West Bengal
reported in (2007) 8 SCC 578 in which
this Court held: (SCC p. 581, paras 1213).

"12. The residuary plea relates
to the applicability of Exception 4 to
Section 300IPC, as it is contended that the
incident took place in course of a sudden
quarrel.

13. For bringing it in operation
it has to be established that the act was
committed without premeditation, in a
sudden fight in the heat of passion upon a
sudden quarrel without the offender
having taken undue advantage and not
912 INDIAN LAW REPORTS ALLAHABAD SERIES
having acted in a cruel or unusual
manner."

28.
In
Babulal
Bhagwan
Khandare & Anr. v. State of Maharashtra
reported in (2005) 10 SCC 404, this Court
detailed the law relating to Exceptions 1
and 4 to Section 300IPC in the following
terms: (SCC pp. 410-11, paras 17-19)

"17. The Fourth Exception to
Section 300IPC covers acts done in a
sudden fight. The said exception deals
with
a
case
of
prosecution
(sic
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 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 in such cases could the
whole blame be placed on one side. For if
it
were
so,
the
exception
more
appropriately
applicable
would
be
Exception 1.

18. 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 300IPC is not
defined in 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 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'.

19. Where the offender takes
undue advantage or has acted in a cruel or
unusual manner, the benefit of Exception
4 cannot be given to him. If the weapon
used or the manner of attack by the
assailant is out of all proportion, that
circumstance
must
be
taken
into
consideration to decide whether undue
advantage has been taken. In Kikar
Singh v. State of Rajasthan reported in
1993 4 SCC 238,it was held that if the
accused used deadly weapons against the
unarmed man and struck a blow on the
head it must be held that by using the
blows with the knowledge that they were
3 All. Gurnam Singh Vs. State
913
likely to cause death he had taken undue
advantage".

In
Dhirendra
Kumar
@
Dhiroo vs. State of Uttarakhand5, the
Supreme Court held as under:

"15. Question whether a case
falls under Section 302or 304 has to be
decided from case to case depending on
factors like the circumstances in which
the incident takes place, the nature of
weapon used and whether weapon was
carried or was taken from the spot and
whether the assault was aimed on vital
part of the body; the amount of force
used; whether the deceased participated in
the sudden fight; whether there was any
previous enmity; whether there was any
sudden provocation; whether the attack
was in the heat of passion; whether the
person inflicting the injury took any
undue advantage or acted in a cruel or
unusual manner. The list of circumstances
is not exhaustive and there may be several
other circumstances with reference to
individual cases. Applying these tests to
the present case, we are unable to accept
the defence on behalf of the appellant. It
was a case of previous enmity and the
nature of injury suggests intention to
cause death or a fatal injury on a vital part
of the body with full force sufficient to
cause death. In these circumstances, we
do not find any ground to interfere."

In The State of Uttar Pradesh
vs. Faquirey6, the Supreme Court held as
under:

"9. According to Exception I to
Section 300IPC, culpable homicide is not
murder if the offender causes the death of
the person who gave the provocation,
whilst deprived of the power of selfcontrol by grave and sudden provocation.
It would be relevant to refer to the First
Proviso to Exception I which provides
that the provocation should be one which
is not sought or voluntarily provoked by
the offender as an excuse for killing or
doing harm to any person. No overtact is
alleged against the deceased by which it
can be stated that the Respondent was
provoked. From the proved facts of this
case it appears that the provocation was
voluntary on the part of the offender.
Such provocation cannot come to the
rescue of the Respondent to claim that he
is not liable to be convicted under Section
302IPC."

18. It is thus clear that entire chain
of events did not occur in a spur of
moment
or
during
sudden
quarrel.
Though there was sudden quarrel between
the two, but thereafter there was ample
time for the appellant to cool down.
However, the appellant prepared himself,
took his gun and strip of cartridges from
his house, climbed up on his terrace and
then after exhortation 1⁄4[kM+s jgks vius iSls
ysdj tkuk1⁄2, caused gunshot injury to the
deceased. Moreover, the deceased never
provoked the appellant and he simply
demanded his Rs.4000/- from him. There
is absolutely no evidence on record to
suggest that it is the deceased who
initiated any hot-talk. Demanding back
his due from the appellant would under
no circumstance be termed as quarrel on
the part of the deceased or provocation
from his side. Instead returning the due
amount to the deceased or giving him any
assurance, the appellant adopted a drastic
approach and killed him. Considering the
evidence available on record, under no
circumstance, the deceased can be faulted
with. Taking the entire evidence as it is,
the case of the appellant would not fall
under any Exception of Section 300 of
IPC and, therefore, we are of the view
that the trial court was justified in
convicting the appellant under Section
914 INDIAN LAW REPORTS ALLAHABAD SERIES
302 of IPC and his case would not fall for
any lesser offence.

19. Considering all aspects of the
case, trial court appears to be justified in
convicting the appellant. The appeal has
no substance and the same is, accordingly,
dismissed. The appellant is reported to be
on bail, he be taken into custody forthwith
to serve the remaining sentence.

20. We appreciate the assistance
rendered by Mohd. Shahanshah Alam
Ansari, Amicus and direct the State
Government to pay Rs.5,000/- to him as
his remuneration.
----------

(2019)11ILR A914

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No.- 347 of 1988

Raju @ Raj Kumar & Anr.
 ...Appellants (In Jail)
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.P.S. Raghava, Sri Sunil Kumar.

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

A. Criminal Law-Sections 360 and 361 of
the Code of Criminal Procedure, 1973;
Indian Penal Code,1860 - Sections 325/34
I.P.C.
-
non-cognizable
case
-
The
prosecution
witnesses
proved
the
documents of the prosecution like injury
report, postmortem report, inquest report
and copy of G.D. - Section 4 of The United
Provinces First Offenders Probation Act,
1938 - Power of court to release certain
offenders on probation of good conduct.-
in any case where the court could have
dealt with an accused under Section 360
of the Code and yet does not want to grant
the benefit of the said provision then it
shall record in its judgement the specific
reasons for not having done so - the trial
court
overlooked
the
provisions
of
Sections 360 and 361 of the Code of
Criminal Procedure and it was mandatory
duty cast on the trial court which ought to
have been performed- conviction of the
appellant maintained - direct that the
appellant be released on probation of good
conduct. (Para 4,5,13,14,16)

Criminal Appeal disposed of. (E-7)

(Delivered by Hon'ble Ajit Singh, J.)

1. This criminal appeal has been
filed against the judgement and order
dated
28.1.1988
passed
by
IXth
Additional Sessions Judge, Bulandshahar
in S.T. No. 482 of 1985, convicting and
sentencing the appellants under Sections
325/34
I.P.C.
to
undergo
Rigorous
Imprisonment for the period of three
years.

2. The brief facts leading to this
appeal are that an FIR was lodged at
police station-Khurja City on 20.7.1985 at
about 7.30 a.m. by Ganga Prasad, son of
Chunni Lal, resident of Bagh Rishalda,
which was registered as non-cognizable
case. It was alleged in the FIR that today,
in the morning at about 7.00 a.m. when he
was sitting on his Chabutara, the accused
who were Gangsters and were having
enmity with him were going by the side
of his Chabutra singing indecent songs.
When he told them not to sing indecent
songs,
the
accused
persons
started
assaulting him with lathi, kicks and fists.
They also abused him and threatened him
with dire consequences. He further stated