# Hoti Lal v. State of U.P

- **Citation:** (2021) 3 ILRA 1192
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-25
- **Case number:** Criminal Appeal No. 1201 of 2011
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hoti-lal-v-state-of-u-p-46895
- **Pages:** 8

## Headnote

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)
3 All. Hoti Lal Vs. State of U.P.
1193
Judgements/ Case law relied upon:-

## Text

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)
3 All. Hoti Lal Vs. State of U.P.
1193
Judgements/ Case law relied upon:-

1. Narain Vs St. of Punj., 1959 AIR (SC) 484

2. Stephen Seneviratne Vs King, 1936 AIR (PC)
289

3. Habeeb Mohammad Vs St. of Hyderabad,
1954 AIR (SC) 51

4. Yudhishtir Rajkumar Vs St. of M.P, 1971 (3)
SCC 436;

5. Jaikaran & anr. Vs St. of U.P., Crl. Appeal No.
431 of 1990

6. Vijay Kumar & ors. Vs St. of U.P., 2011 (8)
SCC 136

7. St. of W.B. Vs Mir Mohammad Omar,
Laws(SC) 2000 8 138

8. State of Orissa Vs Banabihari Mohapatra, SLP
(Crl.) No. 1156 of 2021

9. Rajesh Vs St. of Har., (2021) 1 SCC 118

(Delivered by Hon'ble Gautam
Chowdhary, J.)

1. By way of these appeals the
appellants have challenged the judgement
and order dated 15.2.2011, passed in
Sessions Trial No. 115 of 2006 (State of
U.P. vs. Prem Singh and others), arising out
of Case Crime No. 318 of 2005, under
Section 302 I.P.C., S.T. No. 116 of 2006
(State of U.P. vs. Shankar), arising out of
Case Crime No. 329 of 2005, under
Section- 25 Arms Act and Sessions Trial
No. 117 of 2006 (State of U.P. vs. Prem
Singh @ Baba), arising out of Case Crime
No. 25 of 2006, under Section 25 Arms
Act, all cases were registered at Police
Station- Allow, District Manipuri.

2. All these sessions trials were tried
jointly and were decided by common
judgment, whereby all the accused were
convicted and sentenced for commission of
offence
u/s
302/34
I.P.C.
for
life
imprisonment with fine of Rs. 10,000/- and
for commission of offence u/s 25 Arms
Act, accused- Shankar and Prem Singh
were sentenced for two years rigorous
imprisonment with fine of Rs.1000/-.

3. Brief facts of the case are that on
19.11.2005, the informant - Krishna Murari
had given a written report to the Station
House Officer, P.S.- Allow, District-
Mainpuri, alleging therein that he has
participated in V.D.C. election. One of his
family members, namely, Shankar, was
helping his opposite contestant Krishna Pal
and
opposed
the
informant
from
participating in that election but the
informant participated in the alleged
election at the behest of villagers, since
then, Shankar was inimical and because of
that resentment, on 19.11.2005 at about
11:00 am, when informant's wife and son
were coming from fields, Shankar came
there and hurled abuses in front of Ziledar's
house. During this period, Prem Singh and
Hoti Lal also came there. When the
informant's wife and son opposed, the
accused- Hoti Lal instigated other accused
to kill the informant's wife and son at
which all the accused, armed with country
made pistol, with intention to kill the
informant's son, fired at informant's son
whereby he got one gun shot injury on his
chest and another on his arm in result of
which the informant's son- Bhanwar Pal,
died
on
spot.
On 24.12.2005,
S.O.
Ambarish Kumar Yadav (PW-7), along
with police personnel, in order to recover
the
country-made
pistol
of
accused-
Shankar, went to village- Nihalpur, where
he summoned Karvarilal and Udayveer
Singh to make them witnesses of recovery
of pistol. The police party alongwith the
witnesses
searched
out
themselves
1194 INDIAN LAW REPORTS ALLAHABAD SERIES
personally and after satisfaction that no
objectionable article was with them, they,
along with the accused, went at the place
pointed out by the accused- Shankar and
recovered a country-made pistol. Ferd
(Ex.ka.10) was prepared and site plan
(Ex.ka-14) was also prepared. Again on
21.1.2006, S.O. Ambarish Kumar Yadav,
along with police personnel, in order to
recover 315 bore country-made pistol,
reached
village-
Nihalpur,
where
he
summoned Netrapal and Satyaram to make
them witnesses of recovery. On pointing
out of the accused- Prem Singh, a countrymade pistol was recovered.

4. After the investigation was over,
charge-sheet was filed against all the
accused. As the case was exclusively
triable by the court of sessions, the same
was committed to the sessions court by the
learned Magistrate. Charges were framed
by
the
trial
court
against
the
accused/appellant who pleaded not guilty
and claimed for trial.

5. The prosecution, in order to prove
its case, examined 11 witnesses who are as
under :-

1.
Krishna Murari
PW-1
2.
Ziledar Singh
PW-2
3.
Udayveer Singh
PW-3
4.
Dr. K.C. Bhardwaj
PW-4
5.
H.C.P. Kishanlal
PW-5
6.
Ram Kishor Dixit
PW-6
7.
S.I. Ambarish Kr. Yadav
PW-7
8.
S.I. Surendra Singh
PW-8
9.
S.I. Rajendra Singh
PW-9
10.
Ram Kishor
PW-10

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

1.
Tehrir (Report)
Ex.ka.1
2.
Post mortem report of
deceased
Ex.ka.
3.
Chik F.I.R.
Ex.ka.
4.
Nakal Rapat
Ex.ka.
5.
Panchayat
Ex.ka.
6.
Letter to C.M.O.
Ex.ka.
7.
Recovery of dead body
of deceased
Ex.ka.
8.
Form 379 Namuna Lash Ex.ka.
9.
Namuna Mohar
Ex.ka.
10.
Recovery
memo
of
blood
stained
and
simple soil
Ex.ka.
11.
Recovery
memo
of
empty cartidge
Ex.ka.
12.
Site Plan
Ex.ka.
13.
Charge sheet
Ex.ka.

7. On completion of the evidence of
the prosecution, the accused were put to
questions under Section 313 Cr.P.C. The
accused also examined Chhote Lal as DW1.

8. Heard Sri Rakesh Chandra
Upadhyay, learned counsel for appellant in
Crl. Appeal No. 1201 of 2011, Sri Satish
Kumar Yadav, learned counsel for the
appellants in Crl. Appeals No. 1202 of
2011 and 1203 of 2011 and Sri Vikash
Goswami, learned counsel for the State. Sri
N.K. Srivastava and Ms. Alpana Singha,
learned counsels for State have assisted us
in all the three matters. None has remained
present for the private respondent on any of
the days of hearing.

9. Both the learned counsels for the
appellants have submitted that two of
accused are in jail for more than 15 years.
3 All. Hoti Lal Vs. State of U.P.
1195
The appellant- Hoti Lal was granted bail by this
Court but has been recently sent to jail after his
bail was cancelled. It is further submitted that
the accused- Hoti Lal had only instigated and
that there is no recovery of any incriminating
material from his possession. So far as accused-
Prem Singh and Shankar are concerned, there
was no intention or motive to kill the deceased
as the incident took place all of a sudden. It is
further submitted that the mother of the
deceased Vimala Devi, who was accompanying
the deceased and who had witnessed the whole
incident, had not been examined. It is further
submitted that the doctor also opined that injury
Nos.1 and 2 may be caused by a single shot. It
is further submitted that direction of injury No.1
is upward towards backward which means that
the fire was opened from lower surface but in
the site plan all are shown to be on parallel or
same surface, hence the medical evidence is not
corroborated by the site plan. The informant has
admitted in his testimony that there was no
rivalry with the accused- Hoti Lal. Learned
counsels for the appellants have further
contented that if this Court feels that case is
made out against the accused and they cannot to
be accorded benefit of doubt.

10. The following judgments of the
Supreme Court are relied by the learned counsel
so as to contend that offence under Section 302
read with 34 I.P.C. is not made out in the facts
of this case:

(i) Narain vs. State of Punjab,
1959 AIR (SC) 484.

(ii) Stephen Seneviratne vs.
King, 1936 AIR (PC) 289;

(iii) Habeeb Mohammad vs.
State of Hyderabad, 1954 AIR (SC) 51;

(iv) Yudhishtir Rajkumar vs.
State of Madhya Pradesh, 1971 (3) SCC
436;

(v) Jaikaran and Anr. vs. State
of U.P., Crl. Appeal No. 431 of 1990;

(vi) Vijay Kumar and others vs.
State of U.P., 2011 (8) SCC 136.

11. Learned counsel for the State has
taken us through the record and has
contended that the intention was present
and it is a case where all that common
intention, the accused were armed with
country-made pistols and on instigation of
Hoti Lal the other accused fired at deceased
which shows that it was pre-planned
murder. It has been further contended that
country-made pistols were recovered on the
pointing of the accused- Shankar and Prem
Singh. It completes the chain. The story
narrated by the prosecution is well proved
and corroborated by the medical evidence
as well as other evidences. So there is no
reason to differ from the judgement
pronounced by the lower court. Learned
A.G.A. has placed reliance on judgement of
Apex Court in State of West Bengal vs.
Mir Mohammad Omar, reported in
Laws(SC) 2000 8 138.

12. The informant- Krishna (PW-1) in
his testimony has deposed as under:-

"चुनाि लडने के वलए र्ोतीलाल ने
मना नर्ीं वकया था लेवकन विरोि वकया था मेरी
र्ोतीलाल से िर्ले से कोई रंवजश नर्ीं थी."

Here he admits that there was no
rivalry with accused- Hoti Lal.

13. While considering the testimony
of PW-1, PW-2 and PW-3, it comes out
that accused- Shankar had fired on the
chest of the deceased whereas accused-
Prem Singh had fired on arm of the
deceased.
PW-2
and
PW-3
have
corroborated the prosecution story and all
the three witnesses i.e. PW-1, PW-2 and
PW-3 clearly state that by firing of
accused- Hoti Lal, deceased was not
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
injured at all. 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.

14. The accused are in jail for more
than 15 years. It is submitted by learned
counsel that the learned Judge had relied on
evidence which could not have been done
for the basis for conviction in fact the
conviction of the accused Hoti Lal should
not have been recorded and even if it was
held that he was guilty then it is not a case
under Section 302 I.P.C. but case for lesser
sentence we are constrained to decide.

15. The submission of the learned
counsel for the appellant will also have to
be perused from the angle which it is
pressed into service. The decision in
Jaikaran (supra) goes to show that it will
apply
in
full
force.
The
fact
that
discrepancies in the prosecution story goes
to show that Hoti Lal may not have been
present there. The eye witnesses seem to
have implicated the accused. There was a
suggestion of enmity also. The injuries on
the body appeared to have been inflicted by
the other two but can it be said that there
was
a
premeditated
conspiracy.
The
survivor of the incident i.e. mother of the
deceased has not deposed on oath.
Analysing
the
testimony
of
all
the
witnesses unusual facts come out from the
statements of PW-1. The testimony PW-1
has many improvements in his statement
which is noticeable and weakens the
prosecution story. In Jaikaran (Supra) the
Apex Court has held as under:-

"The same principle has been
reiterated in a recent judgment of the Apex
Court in Yogesh Singh vs. Mahabeer Singh
and others. Wherein the Apex Court has
laid down that the evidence of a closely
related
witness/inimical
witnesses
is
required to be carefully scrutinised and
appreciated before any conclusion is made
to
rest
upon
it,
regarding
the
convict/accused in a given case.

So far as issue of discrepancies in
the ocular evidence, it is well settled law
that the minor discrepancies are not to be
given undue emphasis and the evidence is
to be considered from the point of view of
trustworthiness. The test is whether the
same inspires confidence in the mind of the
Court. If the evidence is incredible and
cannot be accepted by the test of prudence,
then it may create a dent in the prosecution
version. If an omission or discrepancy goes
to the root of the matter and ushers in
incongruities,
the
defence
can
take
advantage of such inconsistencies. It needs
no special emphasis to state that every
omission cannot take place of a material
omission
and,
therefore,
minor
contradictions,
inconsistencies
or
insignificant embellishments do not affect
the core of the prosecution case and should
not be taken to be a ground to reject the
prosecution evidence. The discrepancies
which do not shake the basic version of the
prosecution must not be attached undue
importance to discard the prosecution case.
The discrepancies which are due to normal
errors of perception or observation should
not be given importance. The omission
should create a serious doubt about the
truthfulness or creditworthiness of a
witness. It is only the serious contradictions
and omissions which materially affect the
case of the prosecution may be give due
allowance."
3 All. Hoti Lal Vs. State of U.P.
1197

16. The cumulative evidence and its
probative values has to be put into the scales.
There are minor contradictions which can be
ignored but if there are major contradictions
the same will have to be weighed against the
State. The decision in Yudhishtir @ Raj
Kumar (supra) will also come to the aid of
accused. 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.

17. The State as well as the appellants
have relied on the decision in Narain (supra)
but in our case we do not know whether the
mother was a reluctant eye witness and,
therefore, she was dropped but the fact that
she was not examined goes into the root of
the matter as it is alleged that she was the one
who was essential to unfold the incident.
Learned counsel has submitted that it was
Hoti Lal whose case is akin to that of Narain
(supra) and in our case also it was Hoti Lal
who had directed the attack against the
deceased.

18.

The
decision
in
Habeeb
Mohammad (supra) will also help the
accused as material eye witness has not been
examined wherein it is held that as in Indian
Penal Code, 1860 wherein Section 148, 302,
307, 342, 436 and Evidence act, 1872 of
Section 114 and Code of Criminal Procedure,
1898 wherein it is held that 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.

19. The decision cited by the State in
State
of
West
Bengal
vs.
Mir
Mohammad Omar which is pressed into
service goes to show that where the
evidence is to the satisfaction of the Court
that it was Shankar and the other who had
caused death. The circumstances of the
case and the factual scenario would permit
us to hold that there is no serious lacuna
and irregularity but the question would be
can all the three said to have harboured
common intention as per Section 34 I.P.C.,
the answer is no.

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

21. Considering the evidence of these
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
appellants
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 appellants under Section
302 of the Indian Penal Code should be
upheld or the conviction deserves to be
converted under Section 304 Part-I or PartII 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.

22. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
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 and 300.
The following comparative table will be
helpful in appreciating the points of
distinction between the two offences.

Section 299
Section 300
A
person
commits
culpable homicide if the
act by which the death is
caused is done-
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.

23. While penning this judgment, this
Court has come across the judgment of 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 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"

24. The evidence must be such that
the guilt of the accused would have to be
proved by consistent evidence which would
be proved by the attending circumstances
from which cogent evidence would emerge.

25. In a recent judgement in Rajesh
Vs. State of Haryana, (2021) 1 SCC 118,
the Apex Court has acquitted the accused
where the depositions of the alleged eye
witnesses were found suffering from
material contradictions and there were
improvements. In our case there are
material improvements in the evidence of
PW-1 which we have discussed at length.
In our case also the ballistic expert has not
been examined. The recovery is of a
different kind of country-made pistol. The
legal position regarding necessity of
examination of ballistic experts in case of
assault has been reiterated. It would be fatal
qua accused - Hoti Lal is concerned. The
related eye witnesses have been also
disbelieved by us not just because they are
related eye witnesses but their presence on
the spot is not believable.

26. It is very clear from the F.I.R. and
other witnesses of facts that deceased
started abusing the accused and vice versa,
thereafter, firing took place. It demonstrates
that there was no intention or motive to kill
the deceased. It happened all of a sudden.
The most viable testimony would have
been
of
Vimala
Devi
who
was
accompanying the deceased and who had
actually witnessed the whole incident but
she had not been examined and this goes in
benefit of the accused. While going through
the record, we are convinced that learned
3 All. Ram Pal Singh & Ors. Vs. State of U.P.
1199
Judge instead of writing philosophy, if he
did not think it was a case of acquittal but
could have punished under Section 304 part
I or II of I.P.C. which was attracted in the
facts of this case.

27. While we have decided that the
provisions go to show that injuries were
caused after altercation as from perusal of
the statements of all the witnesses, it
appears that abusing took place and then all
of a sudden the offence occurred, therefore,
it would fall within the scope of the
provisions of Section 304 I.P.C. as narrated
herein above as far as accused- Shankar
and Prem Singh are concerned.

28. 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. Hoti Lal shall be
released forthwith if not required in any
other offence.

29. So far as 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. The period of ten years is already
over, the accused- Prem Singh and Shankar
shall be released forthwith if not required in
any other offence. However, this would be
coupled with the fine imposed by the court
below. The fine be deposited within four
weeks of their release, failing which they
shall
undergo
three
months
simple
imprisonment in default.

30. In view of the aforementioned
discussion, the appeal of accused- Hoti Lal,
i.e. Crl. Appeal No. 1201 of 2011 is allowed.
So far as appeals of other accused, namely,
Shankar and Prem Singh, i.e. Crl. Appeal
Nos. 1202 of 2011 and 1203 of 2011, are
concerned, the same are partly allowed.

31. Record and proceedings be sent
back to the trial court.
----------
(2021)03ILR A1199
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.03.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Criminal Appeal No. 4506 of 2005

Ram Pal Singh & Ors. ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rakesh Chandra Upadhyay, Sri Ambrish
Kumar Kashyap, Sri Arimardan Singh, Sri
Bhaiya Ram, Sri G.P. Singh, Sri J.N. Singh,
Sri R.C. Yadav, Sri S.N. Singh, Sri V.K.
Sharma, Sri Ambrish Kumar Kashyap

Counsel for the Opposite Party:
A.G.A., Sri R.K. Pathak, Sri Ankit Srivastava.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Sections 154 & 157-
Ante- Timed FIR- Specific to the plea of
ante timed FIR set up by the appellants, in
Mehraj Singh Vs State of U.P.; (1994) 5
SCC 188, two external tests had been
relied, to decide that plea. First external
test is the report made to the magistrate