# Hansraj Singh (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 1184
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-23
- **Case number:** Criminal Appeal No. 2278 of 2015
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hansraj-singh-in-jail-v-state-of-u-p-46894
- **Pages:** 9

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872-
Section 25 & 27- The F.I.R. shows that
deceased who was the wife of the
appellant was in the matrimonial home
when her dead body was found and the
accused was found running from his house
at night - He has been convicted because
of the inculpatory statement made by him
and because the knife alleged to be
instrument of offence was recovered at
his behest-The deceased died out of
homicidal death- The accused had pointed
out the dagger but this would be hit by
the provisions of section 27 of the
Evidence
Act.
whether
the
whole
confessional
statement
in
the
first
information report was banned by s. 25 of
the Evidence Act or only those portions of
it were barred which related to the actual
commission of the crime-

It is settled law that although confession before
a police officer is not admissible in evidence but
that part of the statement where a disclosure is
made leading in turn to the discovery and
recovery distinctly relating to the offence, is
admissible in evidence.

Evidence Law - Indian Evidence Act, 1872-
Section 27- Even his statement under 27
of the Evidence Act he has mentioned "तैश
में आके मैंने ये कदम लिया है" which means
that there was no premeditation but
3 All. Hansraj Singh Vs. State of U.P.
1185
under sudden grave provocation the act
was submitted, therefore we will have to
look into the fact whether the offence if
any is made out or not.

Where the evidence indicates that the accused
acted out of grave and sudden provocation then
the offence would fall under Section 304 of the
IPC.

Criminal Law - Indian Penal Code, 1860 -
Section 299- Section 302- Section 304-
Culpable Homicide- Murder and culpable
homicide not amounting to murder - It is a
matter of fact as it transpires from the
F.I.R. and as we have held that it is
homicidal death but not murder- The
accused husband had no intention of
doing away of his wife but in heat of the
moment the incident has occurred.

Where the accused has acted under grave and
sudden provocation, in the heat of the moment
with intention of causing death but without the
knowledge that the act is likely to cause death,
then the offence would be of culpable homicide
not amounting to murder, as provided under
section 304 of the IPC.Conviction accordingly
altered to Section 304 read with Section 34 IPC.
( Para 16, 19, 20, 21, 22)

Criminal Appeal partly allowed. (E-2)

Judgements/ Case law relied upon:-

## Text

1184 INDIAN LAW REPORTS ALLAHABAD SERIES
is not hampered or threatened in any
manner.

22. In the case at hand the court
below has duly considered the facts and
circumstances of the case and the material
evidence
on
record
to
exercise
its
discretionary jurisdiction to partly allow the
application filed by the applicant/informant
to summon the doctor from Meerut who
had examined the injured and prepared the
report which was on record alongwith the
case diary, and taking note of the fact that
the subsequent treatment at Guru Teg
Bahadur Hospital, Delhi and AIIMS
Hospital, New Delhi was only in respect of
some swelling in the leg of the injured and
that the same would not be of any material
consequence to the trial, the request to
summon the other doctors has been
declined.

23. Counsel for the applicant has not
been able to dispute the aforestated legal
position with regard to the exercise of
power of the court under Section 311
Cr.P.C. and has not been able to point out
any material error or illegality in the
exercise of the aforesaid discretion by the
court below so as to warrant interference.

24. Having regard to the aforesaid,
this court is not inclined to exercise its
inherent jurisdiction under Section 482
Cr.P.C. to interfere in the matter.

25.

The
application
stands
accordingly dismissed.
----------
(2021)03ILR A1184
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.02.2021

BEFORE
THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 2278 of 2015

Hansraj Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ajay Pandey, Sri Vindeshwari Prasad

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

Criminal Law - Indian Penal Code, 1860 -
Section 302 - Indian Evidence Act, 1872-
Section 25 & 27- The F.I.R. shows that
deceased who was the wife of the
appellant was in the matrimonial home
when her dead body was found and the
accused was found running from his house
at night - He has been convicted because
of the inculpatory statement made by him
and because the knife alleged to be
instrument of offence was recovered at
his behest-The deceased died out of
homicidal death- The accused had pointed
out the dagger but this would be hit by
the provisions of section 27 of the
Evidence
Act.
whether
the
whole
confessional
statement
in
the
first
information report was banned by s. 25 of
the Evidence Act or only those portions of
it were barred which related to the actual
commission of the crime-

It is settled law that although confession before
a police officer is not admissible in evidence but
that part of the statement where a disclosure is
made leading in turn to the discovery and
recovery distinctly relating to the offence, is
admissible in evidence.

Evidence Law - Indian Evidence Act, 1872-
Section 27- Even his statement under 27
of the Evidence Act he has mentioned "तैश
में आके मैंने ये कदम लिया है" which means
that there was no premeditation but
3 All. Hansraj Singh Vs. State of U.P.
1185
under sudden grave provocation the act
was submitted, therefore we will have to
look into the fact whether the offence if
any is made out or not.

Where the evidence indicates that the accused
acted out of grave and sudden provocation then
the offence would fall under Section 304 of the
IPC.

Criminal Law - Indian Penal Code, 1860 -
Section 299- Section 302- Section 304-
Culpable Homicide- Murder and culpable
homicide not amounting to murder - It is a
matter of fact as it transpires from the
F.I.R. and as we have held that it is
homicidal death but not murder- The
accused husband had no intention of
doing away of his wife but in heat of the
moment the incident has occurred.

Where the accused has acted under grave and
sudden provocation, in the heat of the moment
with intention of causing death but without the
knowledge that the act is likely to cause death,
then the offence would be of culpable homicide
not amounting to murder, as provided under
section 304 of the IPC.Conviction accordingly
altered to Section 304 read with Section 34 IPC.
( Para 16, 19, 20, 21, 22)

Criminal Appeal partly allowed. (E-2)

Judgements/ Case law relied upon:-

1. Sharad Birdi Chandra Sharda Vs St. of Maha.,
1984 SCC (Crl) 487( cited)

2. Padala Veerareddy Vs St. of A.P, AIR 1990 SC
79 (cited)

3. Amit Singh Bheekam Singh Thakur Vs St. of
Maha., 2007 (1) ACR 543 (SC) ( cited)

4. Palvinder Kaur Vs St. of Punj., 1952 AIR 354 (
cited)

5. Aghnoo Nagisia Vs St. of Bih., 1966 AIR 119
(cited& relied)
6. Santosh Vs St. of U.P. dec. on 22.02.2021 in
Crl. Appeal No.5657 of 2011( relied)

7. State of Orissa Vs Banabihari Mohapatra,
S.L..P (Crl.) No.1156 of 2021( relied)

(Delivered by Hon'ble Kaushal Jayendra
Thaker, J.
&
 Hon'ble Gautam Chowdhary, J.)

1. Heard Shri Vindeshwari Prasad,
learned counsel for the appellant and
learned A.G.A. for the State.

2. This appeal, arises out of judgment
and order dated 13.04.2015 passed by court
of Additional Sessions Judge, Kaushambi,
in Sessions Trial No. 218 of 2008, (State
Vs. Hansraj Singh) arising out of Case
Crime No. 181 of 2008, under Sections
302, 307 I.P.C., Police Station- Sarai Akil,
District- Kaushambi, whereby the accused
has been convicted for life imprisonment
for commission of offence under section
302 I.P.C. with fine of Rs.10,000/- and for
seven years for commission of offence
under section 307 I.P.C. with fine of
Rs.5,000/- and further period of 6 months
additional imprisonment in default payment
of fine.

3. The F.I.R. shows that deceased
who was the wife of the appellant was in
the matrimonial home; when her dead body
was found and the accused Hansraj was
found running from his house at night and
on his way he injured Shiv Singh with the
intention to cause his death. The F.I.R. was
lodged on 15.5.2008. The informant of the
incident is one Shiv Karan Singh who
heard the sound of shouting and when he
looked at Hansraj's house he saw his
cousins Vinod Singh and Yogendra Singh
and other people running towards Hansraj's
1186 INDIAN LAW REPORTS ALLAHABAD SERIES
house. The accused was seen running out
from his house with a dagger in his hand and
her wife Rannodevi was found lying dead on
the floor. On his way running through the
field Hansraj also assaulted at his uncle Shiv
Singh. The accused Hansraj had distrust on
the character of his wife with one Vinod
Singh who happens to be his cousin brother
and for this reason the accused Hansraj
committed
the
alleged
offence.
After
occurrence of the said incident the police
started investigation and led the charge-sheet.

4. The trial was to be conducted by the
court of Sessions as it was Sessions triable
case, hence the case was committed to the
court of sessions.

5. The accused was charged on
29.07.2009 and alternative charge was
framed on 02.12.2009 by the learned
Additional Sessions Judge. The accused
pleaded not guilty and claimed to be tried.
The prosecution examined the following
witnesses :-

1.
Shiv Karan Singh
P.W.1
2.
Shiv Singh
P.W.2
3.
Yogendra Singh
P.W.3
4.
Gulab Singh
P.W.4
5.
Vinod Singh
P.W.5
6.
Dr. S.M. Ahmad
P.W.6
7.
Imamuddin
P.W.7
8.
Ranjana Sachan
P.W.8
9.
Dr. Ashutosh Pandey
P.W.9
10.
Lavkush Singh
P.W.10
11.
Surendra Bahadur Singh
P.W.11
12.
Dr. Vibha Kumari
P.W.12

6. In order to substantiate the oral
testimony of the witnesses and their
medical evidence, documentary evidence
were also produced which are as follows :-
1.
Written report
Ext. Ka-1
2.
F.I.R.
Ext. Ka-2
3.
P.M. Report
Ext. Ka-3
4.
Site Plan with Index of deceased
Ext. Ka-4
5.
Site Plan with Index of 2nd
incidence
Ext. Ka-5
6.
Recovery memo of blood stained
and plain earth
Ext. Ka-6
7.
Recovery memo of blood stained
and plain earth
Ext. Ka-7
8.
Recovery memo of pieces of quilt
Ext. Ka-8
9.
Recovery memo of pieces of
'Kathari' and cover of pillow
Ext. Ka-9
10.
Recovery memo of shirt and arrest
of accused
Ext. Ka-10
11.
X-Ray report
Ext. Ka-11
12.
Charge-sheet mool
Ext. Ka-12
13.
Paper no.13ग/12
Ext. Ka-13
14.
Panchayatnama
Ext. Ka-14

7. The learned counsel for the
appellant has contended that he has been
convicted because of the inculpatory
statement made by him and because the
knife alleged to be instrument of offence
was recovered at his behest. It is submitted
that the learned judge has materially added
in relying on the judgment of Sharad Birdi
Chandra
Sharda
Vs.
State
of
Maharashtra 1984 SCC (Crl) 487 and on
Padala Veerareddy Vs. State of Andhra
Pradesh AIR 1990 SC 79 in convicting the
accused for commission of offence.

8. Learned counsel for the appellant
submits that P.W.4 has turned hostile.
P.W.1 has partly supported the case of the
prosecution as far as second incidence is
concerned. The theory of dacoits has been
not believed by the learned trial judge is the
submission of the counsel for the State. The
counsel for the State has heavily relied on
provisions of section 106 read with 114 of
the Indian Evidence Act and has contended
3 All. Hansraj Singh Vs. State of U.P.
1187
that P.W.1 and P.W.2 have testified. P.W.2
did see the accused. It is submitted by
counsel for the State that P.W.8 saw the
accused and the reliance of the learned
judge in Amit Singh Bheekam Singh
Thakur Vs. State of Maharashtra 2007
(1) ACR 543 (SC) we should concur with
the said finding.

9. It is submitted by learned counsel
for the appellant that it is very clear from
the injuries and the statement of P.W.1 in
the F.I.R. that they heard commotion in the
house of accused and it is very clear that
due to this commotion caused by dacoits
they might have injured his wife and out of
fear the accused ran away from the house.
The inculpatory statement under section 27
of the Evidence Act which has been
believed by the learned judge, could not
and are not to be acted on but here is a
reverse case and in the alternative it is
submitted that entire statement be lead
where he confesses that out of anger he
committed this act and the injuries also go
to show that and the evidence of P.W.1 and
P.W.8 should satisfy us that this is a case of
304 (1) I.P.C. and not of 302 I.P.C. code.

10.
Learned
counsel
for
the
appellant has further contended that if
this Court feels that the case is made out
against the accused and they are not to be
accorded benefit of doubt, he presses into
service the provisions of Section 304 of
I.P.C. According to learned counsel, the
learned Judge could not have framed
fresh charge.

11. The following judgments of the
Supreme Court are heavily relied by the
learned counsel for the appellant so as to
contend that offence under Section 302
I.P.C. is not made out :

(i) Palvinder Kaur Vs. State of
Punjab, 1952 AIR 354

(ii) Aghnoo Nagisia Vs. State of
Bihar, 1966 AIR 119

12. The police authorities who were
thereafter examined as ocular version stated
that they had taken the statement of the
witnesses and testified the statements made
by them during investigation. The accused
was put to test as per section 313 Cr.P.C.
and his statements was recorded.

13. It is further submitted by learned
counsel for the appellant that the evidence
was very scanty and oral testimony on the
record of the trial Judge was not so on
which conviction could be returned under
Section 302 I.P.C., but it appears that the
learned Judge has convicted the accused on
the basis of his own ideology and on the
basis of the testimony of hostile witnesses.

14. It is submitted that this is a case of
no evidence as far as conviction under
section 302 I.P.C. is concerned, however,
the accused is in jail for more than ten
years. The learned Judge had relied
testimony which could not have been made
the basis for conviction in fact the
conviction of the accused should not have
been recorded, but as the learned counsel
for the appellant has submitted that it is not
a case where conviction under Section 302
I.P.C. could be recorded but case for lesser
sentence.

15. Learned A.G.A. has submitted
that :-

P.W.1-

P.W.1 saw the accused come out of his
own house with dagger (कटार). The
1188 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased Rannodevi was lying in pool of
blood. He on way injured Shiv Singh in
filed. He ran away on eastern side. He has
proved the F.I.R.

In cross :-

He was at his home when incidence
occurred. He has not seen accused beating
or injuring or murdering the deceased. He
woke up from sleep on hearing noise and
yelling of people. Neither he nor those
name in F.I.R. saw how the first incidence
occurred. He did not see who injured his
uncle Shiv Singh as it was dark. The
incidence is of about 10 to 11 at night. He
and
his
uncle
(injured)
had
after
consultation lodged the F.I.R.

P.W.2

He was sleeping in his field, when
Hansraj came with dagger and injured him.
The accused had given three blows to the
injured. Other villagers informed him that
accused had first done his wife to death and
then was running away. Accused was
inimical towards the son of the injured and
injured had time and again scolded him
(accused).

In Cross :-

There was no electricity at 11:00 pm
in the fields. He was fast asleep and so
could not say from which side the accused
came, injured him and ran away. He had
not seen the person who assaulted him.

P.W.3

On
hearing
people
crying
and
screaming he came to the house of Hansraj,
he saw people going in the house of
Hansraj, he testifies that he saw Hansraj
running with dagger. People chased the
accused. He was sleeping with his uncle in
the field and saw Hansraj attacking his
uncle who got injured.

In Cross :- No light in the village. He
had taken his dinner by 8:00 pm and had
gone to sleep. He has admitted that he has
not seen Hansraj attacking his wife or
injuring Shiv Singh (injured)

P.W.4

P.W.4 has turned hostile but has in his
chief stated about the fact that Ranno Devi
has murdered. He came to know about the
incidence when he heard screaming and
commotion. He has not seen accused
beating or injuring deceased or injured. He
had given 161 statement as per section 161
Cr.P.C code but was not the one shown to
him.

P.W.5

P.W.5 saw Ranno Devi in pool of
blood in the dwelling house of accused. He
saw Hansraj running with dagger. He had
seen Hansraj running away. He has not
seen incidence of causing death of
deceased.

P.W.6

P.W.6 is the doctor who has treated
the injured can't testify with what kind of
weapon the injuries were caused.

P.W.7

P.W.7, the police officer who recorded
G.D. entry some overwriting on figure 3 of
307 I.P.C.
3 All. Hansraj Singh Vs. State of U.P.
1189

P.W.8

P.W.8, the investigating officer. He
has written the case diary.

P.W.9

P.W.9, the doctor who has performed
the post-mortem. The post- mortem report
shows the following injuries:-

(i) incised wound 28 cm x 3 cm
present on left side of neck including right
side of mendis . 4 cm below the left ear and
6 cm below the right ear, bone deep.

(ii) incised wound 5cm x 1 cm
present on left palm into muscle deep.

(iii) incised wound 6cm x 1 cm
present on right hand fingers into muscle deep.

From this evidence it is clear that
theory of dacoits infiltrating the house of
the accused and killing his wife belies the
evidence on record. The injuries go to show
that it was not a premeditated gruesome
murder but was a homicidal death caused
by whom will have to be decided. We do
no go through the further testimony the
reason being it is homicidal death as the
death occurred due to injuries which was
by a sharp edged instrument.

No injuries on head, thorax, trachea all
normal.

Cause of death- loss of blood due to
injures was by a sharp edged instrument.
No injuries except neck and hands (palms
and fingers)

P.W.10

P.W.10 saw dead body not in the
house but outside. He is resident of the
village.
He
reached
after
the
Panchayatnama was written.

P.W.11

P.W.11, the doctor who X-rayed the
injuries of Shiv Singh.

D.W.1 /D.W.2

Nothing turns on their evidence as
they have not seen the incidence.

Section 114 of the Indian Evidence
Act will come to the aid of prosecution as
accused was seen running from his house
with dagger by P.W.1, P.W.2, P.W.3,
P.W.5. P.W.4 has seen the dead body in
house of accused and theory of dacoits is
rightly not believed by learned trial
judge.

16. While going through the factual
data it is clear that the deceased died out of
homicidal death. The accused had pointed
out the dagger but this would be hit by the
provisions of section 27 of the Evidence
Act. It is submitted by the counsel for the
appellant that the provisions of section 27
of the Evidence Act which has been
invoked by the State and on which reliance
is placed by the learned judge must be read
in totality for which he has relied on
Aghnoo Nagisia Vs. State of Bihar, 1966
AIR 119 :

ACT:

Indian Evidence Act (1 of 1872), s.
25-Ban an confession made to a police
officer-Confessional F.I.R. by accused-Ban
whether applies to while statement or only
those part showing actual commission of
crime.
1190 INDIAN LAW REPORTS ALLAHABAD SERIES

HEADNOTE:

The appellant was tried for murder. The
principal evidence against him consisted of a
first information report containing a full
confession of the crime. The appellant was
convicted under s. 302 Indian Penal Code by
the trial court and the High Court upheld the
conviction, By special leave he appealed to
the Supreme Court. The question before the
court was whether the whole confessional
statement in the first information report was
banned by s. 25 of the Evidence Act or only
those portions of it were barred which related
to the actual commission of the crime.
and has contended that even his statement
under 27 of the Evidence Act he has
mentioned "तैश में आके मैंने ये कदम वलया र्ै"
which means that there was no premeditation
but under sudden grave provocation the act
was submitted, therefore we will have to look
into the fact whether the offence if any is
made out or not.

17. While penning this judgment,
this Court has come across the judgment
passed by this Court in the case of
Santosh Vs. State of U.P. decided on
22.02.2021 in Criminal Appeal No.5657
of 2011 and the Apex Court in the case
of Special Leave to Petition (Crl.)
No.1156 of 2021, State of Orissa Vs.
Banabihari
Mohapatra
(Coram:
Hon'ble Mrs. Justice Indira Banerjee
and Hon'ble Mr. Justice Hemant
Gupta), reported in Live Law 2021 SC
103 wherein the Apex Court has held
as under:

"It is well settled by plethora of
judicial pronouncements by this Court
that suspicion, however strong cannot
take the place of proof. An accused is
presumed to be innocent unless proved
guilty beyond reasonable doubt"

18. This takes us to the issue of
whether the offence would be punishable
under Section 299 I.P.C. or Section 304
I.P.C.

19. Considering the evidence of the
witnesses and also considering the
medical evidence including post mortem
report, there is no doubt left in our mind
about the guilt of the present appellant
and admission on part of accused.
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 of the
Indian Penal Code 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 read 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.

20.

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 Section 299 I.P.C. and Section
3 All. Hansraj Singh Vs. State of U.P.
1191
300 I.P.C. The following comparative
table will be helpful in appreciating the
points of distinction between the two
offences.

Section 299
I.P.C.

Section 300 I.P.C.
A
person
commits
culpable
homicide if the
act by which the
death is caused
is done-
Subject
to
certain
exceptions
culpable
homicide is murder is
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.

21. The accused is the husband of
the deceased, he is in jail for a period of
more than 13 years. It is a matter of fact
as it transpires from the F.I.R. and as we
have held that it is homicidal death but
not murder. We hold the accused guilty
for Section 304 of I.P.C. read with
Section 34 I.P.C. but not with 302 I.P.C.
read
with
Section
34
I.P.C.
The
punishment is reduced to seven years
incarceration, the fine of Rs.10,000/- is
reduced to Rs.5,000/- as the medical
evidence as well as the evidence of
hostile witnesses permit us to substitute,
we are of the confirmed opinion that the
punishment of seven years with fine
reduced to Rs.5,000/- if the fine is not
paid, the sentence would be default
sentence of three months.

22. While going through the record,
we are convinced that the accused husband
had no intention of doing away of his wife
but in hit of the moment the incident has
occurred. Learned Judge instead of writing
philosophy, if he did not think it was a case
of acquittal could have punished under
Section 304 part I or II of I.P.C. which was
attracted in the facts of this case.

23. Record and proceedings be sent
back to the trial court.
----------
1192 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)03ILR A1192
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.02.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1201 of 2011
with
Criminal Appeal No. 1202 of 2011
with
Criminal Appeal No. 1203 of 2011

Hoti Lal ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri
S.K.
Tyagi,
Sri
Rakesh
Chandra
Upadhyay

Counsel for the Opposite Party:
A.G.A., Sri R.B. Maurya

Criminal Law - Indian Penal Code, 1860-
Section 300, Exception 1- Section 304 -
Death
caused
by
grave
and
sudden
provocation- It is relevant to mention that
in the F.I.R. it is alleged that the mother of
the
deceased
was
accompanying
the
deceased when this incident took place and
the story starts that accused started
abusing the deceased and then firing took
place. It demonstrates that there was no
intention or motive to kill the deceased. It
happened all of a sudden.

Where the offence is not pre-meditated but is
sudden being the result of grave and sudden
provocation, the offence would fall under Section
304 of the IPC.

Evidence Law - Indian Evidence Act, 1872-
Section 155(3) - Section 157- Section 158-
Major
Contradictions
and
Omissions-
There are minor contradictions which can
be
ignored
but
if
there
are
major
contradictions the same will have to be
weighed against the State - Omission in
F.I.R. and in Section 161 Cr.P.C. would
prove fatal if the evidence is substantially
in variance with version given by the
witnesses in the statements given to the
Police.

Where there are major contradictions in the
testimony of the witnesses and the testimony is
at substantial variance with the version of the FIR
and previous statements given u/s 161 of the
CrPc, then the same would be fatal to the case of
the prosecution.

Evidence Law - Indian Evidence Act, 1872-
Section
114
(g)-
Adverse
Inference-
Material witness and non examination of
the
same
and
effect
of
the
same
particularly when no allegation was made
that if produced, he would not speak truth,
adverse inference can be raised against
prosecution - therefore, circumstances of
his being withheld from court casts serious
reflection on fairness of trial.

Where the prosecution withholds material
witnesses the Court may presume that the said
evidence
would
be
unfavourable
to
the
prosecution and therefore an adverse inference
can be drawn against the prosecution.

As far as accused-appellant Hoti Lal is
concerned there is no clear evidence against
him who has only instigated and also nothing
was recovered on pointing out of Hoti Lal.
Therefore, the accused- Hoti Lal is exonerated.-
other accused- Prem Singh and Shankar are
concerned, the accused- Shankar is family
member of deceased and the accused are in jail
for a period of more than 15 years. It is a
matter of fact as it transpires from the F.I.R.
and as we have held that it is homicidal death
but not murder. We hold the accused guilty for
Section 304 of I.P.C. but not under 302 read
with Section 34 I.P.C. The punishment of life
imprisonment is reduced to ten years. ( Para 13,
16, 18,26)

Criminal
Appeal
accordingly
partly
allowed. (E-2)