# Harbir & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 3 ILRA 1001
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-16
- **Case number:** Criminal Appeal No. 709 of 1986
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harbir-ors-in-jail-v-state-of-u-p-44850
- **Pages:** 9

## Headnote

A. Criminal Law-Indian Penal Code,1860
- Section 302/34, 307/34 of IPC - The
incident occurred on a trivial issue
between the accused and the deceased
over fencing of the land - The accused
persons caused a single injury on the
chest of the deceased. No premeditation
on part of the accused persons - The
incident
occurred
on
a
sudden
provocation, in a heat of passion.-
complicity of the accused persons in
commission of offence has been duly
proved by the prosecution - 'Murder' -
'Culpable Homicide' not amounting to
murder - Exception 4 to Section 300 of
the IPC applies in the absence of any
premeditation
-
The
exception
contemplates that the sudden fight may
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 case of the appellant
would, thus, fall under Exception 4 of
Section 300 of IPC - Held that the
appellants are liable to be convicted for
committing
'culpable
homicide
not
amounting to murder' - Considering the
nature
of
injuries
caused
to
the
deceased, the appellants are liable to be
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted under Section 304 Part I of
IPC and not under Section 304 Part II of
IPC. - medical report of injured and the
statement of the doctor, appears to be
correct
-
conviction
under
Section
307/34 of IPC is maintained. (Para
16,18,23,24,25,26)

Appeal partly allowed (E-7)

Chronological list of cases cited:-

## Text

3 All. Harbir & Ors. Vs. State of U.P.
1001
has been examined by the prosecution to
prove that on the fateful day i.e. 13.07.1986
the deceased had provided the empty milk
containers to her for cleaning and that he had
left her by telling her that he is going to the
place of accused-appellant. From her
statement recorded in court it appears that
she was confronted with her statement
recorded under Section 161 CrPC wherein
she had disclosed that the deceased had left
with Munna Ghosi. The investigating officer
Har Prasad Singh (P.W.6) was questioned in
that regard and he admitted that Hasina
Begum (Sakina-P.W.4) had stated that Ram
Kumar had left with Ghosi and that
thereafter he did not return. Further, P.W.6
stated that he had gone to search for Munna
Ghosi on 15.07.1986 and 16.07.1986 but his
house was found locked.

29. When we take a conspectus of the
entire prosecution evidence, we find, firstly,
that the circumstances as against the accusedappellant are not satisfactorily proved,
secondly, the chain of circumstances is not
complete and, thirdly, the involvement of
some other person in the crime cannot be
ruled out. Hence, the benefit of doubt must go
to the accused-appellant. The conviction of
the
accused
appellant
is,
therefore,
unsustainable.

30. Consequently, the appeal is
allowed. The judgment and order dated
30.03.1991 passed by the VIth Additional
District & Sessions Judge, Kanpur Nagar
in Session Trial No. 286 of 1987 is hereby
set aside. The appellant is acquitted of the
charge of murder. If the appellant is on
bail, he need not surrender.

31. Let the record as well as this
order be sent to the court below for
compliance.
----------
(2019)11ILR A1001

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.10.2019

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

Criminal Appeal No. 709 of 1986

Harbir & Ors. ..Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Rajesh Kumar Singh, Amicus Curiae.

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

A. Criminal Law-Indian Penal Code,1860
- Section 302/34, 307/34 of IPC - The
incident occurred on a trivial issue
between the accused and the deceased
over fencing of the land - The accused
persons caused a single injury on the
chest of the deceased. No premeditation
on part of the accused persons - The
incident
occurred
on
a
sudden
provocation, in a heat of passion.-
complicity of the accused persons in
commission of offence has been duly
proved by the prosecution - 'Murder' -
'Culpable Homicide' not amounting to
murder - Exception 4 to Section 300 of
the IPC applies in the absence of any
premeditation
-
The
exception
contemplates that the sudden fight may
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 case of the appellant
would, thus, fall under Exception 4 of
Section 300 of IPC - Held that the
appellants are liable to be convicted for
committing
'culpable
homicide
not
amounting to murder' - Considering the
nature
of
injuries
caused
to
the
deceased, the appellants are liable to be
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
convicted under Section 304 Part I of
IPC and not under Section 304 Part II of
IPC. - medical report of injured and the
statement of the doctor, appears to be
correct
-
conviction
under
Section
307/34 of IPC is maintained. (Para
16,18,23,24,25,26)

Appeal partly allowed (E-7)

Chronological 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 Pun. Cri. Appeal
No.2284 of 2009

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

1. This appeal arises out of
impugned judgment and order dated
28.02.1986 passed by II Additional
Sessions Judge, Aligarh in Sessions Trial
No. 336 of 1985 convicting the accused
Harbir and Karan Singh under Section
302/34 of IPC and sentencing them to
undergo imprisonment for life. The trial
court has further convicted accused
Bijendra, Devendra Singh and Karan
Singh under Section 307/34 of IPC and
sentenced accused Bijendra and Karan
Singh
for
seven
years
rigorous
imprisonment, whereas accused Devendra
Singh has been sentenced for three years
rigorous imprisonment. Accused Harbir
has been acquitted of the offence under
Section 307/34 of IPC. The sentences
awarded to the accused Karan Singh and
Harbir Singh shall run concurrently.

2. In the present case, name of the
deceased is Mukhtiar Singh, father of
PW-2 Autar Singh and PW-3 Onkar
Singh. It is said that there was some
dispute between accused Karan Singh and
the deceased over fencing of the land and
on the date of incident i.e. 20.02.1985,
accused Karan Singh had asked the
deceased to remove the said fencing.
When deceased had refused to remove the
fencing, accused Karan Singh with the
help of his two sons Harbir and Bijendra
and grandson Devendra Singh caused
single injury to the deceased by spear
(Ballam) resulting his death. In the same
incident, PW-3 Onkar Singh also suffered
injuries
and
his
MLC
is
Ex.Ka.1
conducted by PW-1 Dr. H.C. Goel. On the
basis of written report Ex.Ka.2, lodged by
PW-2 Autar Singh on 20.02.1985, FIR
Ex.Ka.5 was registered against all the
four accused persons under Sections 302
and 307 of IPC.

3. Inquest on dead body of the
deceased was conducted vide Ex.Ka.7
and the body was sent for postmortem,
which was conducted on 21.02.1985 vide
Ex.Ka-4 by PW-6 Dr. M.L. Walecha. As
per Autopsy Surgeon, following single
ante mortem injury was found on the
chest of the deceased:

"Incised wound 6 cm x 3 cm x
chest cavity deep on left side of chest on
upper part 11 cms above the nipple at 10'
clock position. Wound extends to left
shoulder. Direction of wound is down
wards and back wards. Margins clear
cut."

The cause of death of the
deceased
was
due
to
shock
and
haemorrhage
resulting
from
injuries
described.

4. While framing charge, the trial
judge has framed charge against all the
3 All. Harbir & Ors. Vs. State of U.P.
1003
accused persons under Sections 302/34
and 307/34 of IPC and against accused
Harbir, separate charge under Section 302
of IPC was also framed.

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

6. By the impugned judgement, the
trial judge has convicted the appellants as
mentioned in paragraph no. 1 of this
judgment. Hence, this appeal.

7.

Learned
counsel
for
the
appellants submits:-

(i) that the trial judge has erred
in law in convicting appellants Harbir and
Karan Singh under Section 302/34 of
I.P.C. He submits that even if the entire
prosecution case is taken as it is, at best,
these accused persons can be convicted
under Section 304 Part II of IPC. In
respect of other accused persons Bijendra,
Devendra Singh and Karan Singh, it has
been argued that offence under Section
307 of IPC is not made out against them.

8. On the other hand, supporting the
impugned judgment, it has been argued
by State Counsel that the conviction of
the appellants is in accordance with law
and there is no infirmity in the same.

9. Heard learned counsel for the
parties and perused the record.

10. PW-1 Dr. H.C. Goel has proved
the injury report vide Ex.Ka.1 sustained
by injured PW-3 Onkar Singh and has
found the following injuries on his body.

"1. Incised wound 1cm x 1⁄4 cm x
muscle deep present left side upper arm
outer and upper part. Margins clean cut.

2. Incised wound 11⁄2 cm x 1⁄4 cm
x chest deep present left side chest upper
and laterally kept uo, Advised X Ray.

3. Contusion 11⁄4 cm x 1⁄2 cm
present left side back of chest middle part.

4. Contusion 2 cm x 1⁄2 cm
present Rt. side back of chest middle part.

5. Contusion 1 cm x 1⁄4 cm
present of left ankle outer side."

He has stated that the incised
wound sustained by the victim could have
been caused by 'Ballam' or by some other
sharp edged weapon.

11. PW-2 Autar Singh is a son of
deceased
and
eye
witness
to
the
occurrence. He is also the lodger of FIR.
He has stated that on account of putting
fencing on the land, there was dispute
between his father and the family of
Karan Singh. Karan Singh had asked his
father to remove the said fencing. There
was hot talk between the two. Karan
Singh went back to his house by saying
that he would teach a lesson to his father
and then all the accused persons came out
from the house carrying 'ballam' and
clubs with them and then they caused
injuries to his father and also to him. In
cross-examination, this witness remained
firm and has reiterated the entire incident.

12. PW-3 Onkar Singh is another
son of deceased and eye witness to the
occurrence. His statement is almost
identical to that of PW-2 Autar Singh. He
too has categorically stated as to the
manner in which Mukhtiar Singh was
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
done to death by the accused persons and
he was also assaulted.

13. PW-4 Ram Sanehi Lal is a
police
constable,
assisted
during
investigation. PW-5 Manturi Singh is a
neighbour of the deceased, who reached
to the place of occurrence after hearing
commotion between the parties. He states
that the accused persons were carrying
'ballams' and clubs with them and they
caused injuries to Mukhtiar Singh and
Onkar Singh and Mukhtiar Singh had
expired.
PW-6
Dr.
M.L.
Walecha
conducted postmortem on the body of the
deceased. PW-7 Satya Prakash registered
the FIR. PW-8 Kesri is another eye
witness to the incident has also supported
the prosecution case. PW-9 A.U. Siddiqui
is an Investigating Officer of the case.

14. DW-1 Ravikaran Singh has
stated that when he reached to the place
of occurrence, there was heavy crowd and
people were talking that some dacoits
have committed the incident.

15. Close scrutiny of evidence, in
particular the statements of PW-2 Autar
Singh, PW-3 Onkar Singh, PW-5 Manturi
Singh and PW-8 Kesri make it clear that
on account of some fencing dispute, there
was some quarrel between the deceased
Mukhtiar Singh and Karan Singh and then
Karan Singh with the help of other
accused persons caused injuries to the
deceased. All the accused persons were
armed with either 'ballam' or club and
when PW-3, Onkar Singh intervened in
the matter, he too was beaten by the
accused persons. Postmortem report of
the deceased also supports the ocular
version of the witnesses and likewise
medical evidence of Onkar Singh also
supports the statement of eye witness.

16. Considering the evidence
available on record, complicity of the
accused persons in commission of offence
has been duly proved by the prosecution.
The next question, which arises for
consideration of this Court is as to
whether the act of the accused Harbir and
Karan Singh would fall within the
definition of 'murder' or it would be
'culpable homicide' not amounting to
murder.

17. 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 selfcontrol by grave and sudden provocation,
causes the death of the person who gave
3 All. Harbir & Ors. Vs. State of U.P.
1005
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 years, suffers death or
takes the risk of death with his own
consent."

18. 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
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
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 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. The Apex Court in State of A.P.
vs.
Rayavarapu
Punnayya
and
Another; (1976) 4 SCC 382 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
3 All. Harbir & Ors. Vs. State of U.P.
1007
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."

20. In Budhi Singh vs. State of
Himachal Pradesh; (2012) 13 SCC 663,
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 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....."

21. In Kikar Singh vs. State of
Rajasthan; (1993) 4 SCC 238, 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;
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
(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...."

22. All the above three cases were
considered by the Apex Court in Surain
Singh v The State of Punjab; Criminal
Appeal No.2284 of 2009, decided on
April 10, 2017 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.

23. If we apply the above principle
of law in the present case, what emerges
from the evidence, is that the incident
occurred on a trivial issue between
accused Karan Singh and deceased over
fencing of the land. The accused persons
have caused single injury on the chest of
the deceased, there was no premeditation
on the part of the accused persons, the
incident
occurred
on
a
sudden
provocation, in a heat of passion. Though
there was sufficient opportunity for the
accused persons to further assault the
deceased but they did not do the same.

24. Considering all the above
aspects, the case of the appellant would,
thus, fall under Exception 4 of Section
300 of IPC and it can be safely held that
the appellants are liable to be convicted
3 All. Narvada & Ors. Vs. The State
1009
for committing 'culpable homicide not
amounting to murder'.

25. The next question is whether the
appellant 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, we are of the
view that the appellants Harbir and Karan
Singh are liable to be convicted under
Section 304 Part I of IPC and not under
Section 304 Part II of IPC.

26. So far as conviction of the appellants
Bijendra and Devendra Singh under Section
307/34 of IPC is concerned, looking to the
medical report of injured Onkar Singh and the
statement of the doctor, the same appears to be
correct and does not call for any interference.
Accordingly, their conviction under Section
307/34 of IPC is maintained.

27. Yet another question, which arises
for consideration of this Court is as to what
would be the appropriate sentence to be
imposed upon Harbir and Karan Singh. The
incident occurred about 34 years back and
therefore, ends of justice would be served if
they are sentenced to seven years rigorous
imprisonment. Order accordingly. Sentence of
three years of accused Devendra under
Section 307/34 of IPC is maintained.
Sentence of Bijendra under Section 307/34 is
reduced to three years rigorous imprisonment
from that of seven years. Order accordingly.

28. The appeal is partly allowed.

29. The accused-appellants are on
bail. They be taken into custody forthwith
and be sent back to jail for serving the
remaining sentence.

30. We appreciate the assistance
rendered by Sri Rajesh Kumar Singh
(Amicus) and we direct the State
Government to pay Rs. 5000/- to him
towards his remuneration.
----------

(2019)11ILR A1009

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 01.11.2019

BEFORE
THE HON'BLE VED PRAKASH VAISH, J.
HON'BLE MOHD. FAIZ ALAM KHAN, J.

Criminal Appeal No. 746 of 1983

Narvada & Ors. ...Appellants.
Versus
The State ...Respondent.

Counsel for the Appellants:
Sri Nagendra Mohan

Counsel for the Respondent:
Govt. Advocate.

A. Criminal Law-Indian Penal Code,1860
- Sections 147,148, 302 read with 149
IPC - Section 161 of the Cr.P.C. Motive.
Enmity is a double aged weapon -
Testimony
of
direct
eye
witnesses
available - must be decided on the basis
of the quality and probative value of the
evidence of eye witnesses and other
witnesses
of
prosecution-
First
Information
Report
is
not
an
encyclopedia of an incident - prosecution
not obliged to prove those facts which
prosecution either could not prove or
which are not in the knowledge of the
prosecution. No material contradictions
with regard to the genesis of incident
and the testimony of all the factual
witnesses - The medical evidence fully
corroborates
the
version
of
the
prosecution as contained in the FIR and
also in the testimony of eye witnesses -
The First Information Report is prompt
and is not either ante-dated or antetimed - Presence of faecal matter either