# (in Jail) v. State

- **Citation:** (2003) 2 ILRA 311
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003
- **Case number:** Criminal Appeal No.1569 of 1981
- **Bench:** M.C. Jain, Y.R. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/in-jail-v-state-40089
- **Pages:** 6

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES [2003
312
Indian Penal Code, 1860-Section 302
read with Sections 304, Part I and 300,
Explanation - I Conviction under S.302
maintainability - Injuries inflicted to
deceased in a fit of passion during course
of sudden quarrel - Thus act of appellant
falls within explanation I to Sec 300
bringing offence proved to be punishable
under Section 304 part I I.P.C - Hence
appellant's conviction altered from S.302
to S.304 Part I, I.P.C.

## Text

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2 All] Bhai Khan V. State
311
15. I am afraid, this argument cannot
be accepted Even if, it is assumed that this
Court has issued a direction by the order
dated 11th February, 1987 which has not
been complied with by the respondent, the
petitioner could have approached this
Court on the contempt jurisdiction instead
waiting the same for such a long time as
has been done by the petitioner, which has
again resulted into filing of the writ
petition.

16.

From
the
facts
and
circumstances, it is clear that the dispute
is with regard to non-payment of salary
and other consequential benefits for a
period of 40 days. A perusal of the
correspondence annexed by the petitioner
in the writ petition clearly demonstrates
that the petitioner since have not reported
for joining pursuant to the transfer from
Mental Hospital, Agra at Pratapgrah, the
salary and other consequential benefits
could not be paid as till the petitioner
reported for duty after he has approached
the Apex Court by means of special leave
petition referred to above, the order
whereof is Annexure '2' to the writ
petition.

17. Learned counsel for the
petitioner has failed to demonstrate any
statutory
provision
under
which
respondents are under statutory duty to
decide the petitioner's representation
because the petitioner's right to receive
payment itself was under jeopardy for
which, according to the narration of the
facts, long drawn correspondence entered
into. Now, the petitioner by means of this
writ petition under Article 226 of the
Constitution of India, has sought for a
writ of mandamus for the payment of
salary and other consequential benefits
which ought to have been paid to him,
according to the petitioner, in the year
1984 after laps of about 22 months. This
Court, therefore, declines to exercise its
extra-ordinary jurisdiction under Article
226 of the Constitution of India as prayed
for by the petitioner on the ground that a
claim which would have become barred
by time cannot be permitted to be revived
under the guise of seeking a direction for
deciding the representation. Admittedly,
the petitioner has made a prayer for a
direction to the respondents to decide his
representation dated 12th August, 1999
which claims the payment which was due
in the year 1984.

18. In this view of the matter, this
writ petition seeking a writ of mandamus
for deciding the representation of the
petitioner in equity jurisdiction under
Article 226 of the Constitution of India, in
my opinion, is not a fit case in which this
Court should interfere.

This writ petition is, therefore,
devoid of any merits and it is accordingly
dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD MARCH 11, 2003

BEFORE
THE HON'BLE M.C. JAIN, J.
THE HON'BLE Y.R. TRIPATHI, J.

Criminal Appeal No.1569 of 1981

Bhai Khan

 ...Appellant (in Jail)
Versus
State

...Respondent

Counsel for the Appellant:
Sri P.N. Misra

Counsel for the Respondent:
A.G.A.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
312
Indian Penal Code, 1860-Section 302
read with Sections 304, Part I and 300,
Explanation - I Conviction under S.302
maintainability - Injuries inflicted to
deceased in a fit of passion during course
of sudden quarrel - Thus act of appellant
falls within explanation I to Sec 300
bringing offence proved to be punishable
under Section 304 part I I.P.C - Hence
appellant's conviction altered from S.302
to S.304 Part I, I.P.C.

(Delivered by Hon'ble Y.R. Tripathi, J.)

1. This criminal appeal is directed
against the conviction and sentence
recorded by Sri J.N. Bansal, the then
Sessions Judge, Lalitpur in Sessions Trial
No. 101 of 1980, State Versus Bhai Khan,
relating to P.S. Talbehat, District Lalitpur,
whereby
he
having
convicted
the
appellant Bhai Khan under Section 302
IPC has sentenced him to imprisonment
for life.

2. The prosecution case, in short, is
that the appellant is the real younger
brother of the deceased Shamsher Khan.
At the time of occurrence, both the
brothers were living jointly and they
owned a bullock. Shamsher Khan wanted
to go out after selling that bullock to
which the appellant was not agreeable. It
is
said
that
around
12
noon
on
17.08.1980, an altercation took place
between the two brothers inside their
inner courtyard over the disposal of the
bullock.
Shamsher
Khan,
as
usual,
insisted on selling the bullock, whereupon
the appellant, enraged over his insistence,
gave him several blows from the blunt
portion of a spade saying that he was very
often insisting on selling the bullock and
that he would now finish him. On
sustaining injuries Shamsher Khan fell
down on the ground. Iddu Khan P.W.I.
Hajju P.W.3 and some others, who on
hearing the altercation between the two
brothers had reached the scene of
occurrence, witnessed the incident. The
appellant after inflicting injuries to
Shamsher Khan went away towards the
well in the village. Asghar Ali, Harnam
Singh and a constable accompanied by
some others gave a chase to the appellant
and apprehended him with the spade, the
weapon used in assault. They brought the
appellant at his house and tied him with
the help of a rope. Iddu Khan, P.W.1 with
injured Shamsher Khan set out for the
police station on a bullock-cart but hardly
had he settled a distance of three furlongs
and had reached out of his village,
Shamsher Khan died. He, therefore,
brought the dead body of Shamsher Khan
back to the place of occurrence and placed
it there. He then got a written report
prepared on his dictation by one Govind
Singh, Pradhan of the village and took it
to the police station Talbehat where he
made over that written report to Head
Constable Shiv Singh P.W.4, who on the
basis of that report drew a chik F.I.R and
registered a case at 1-30 p.m. on
17.08.1980. Sub Inspector Surya Prasad
Agnihotri P.W.5, who at that time was
posted as Station Officer P.S. Talbehat,
swung into action. He proceeded to the
spot, held inquest on the dead body of the
victim and after completing all other
necessary formalities dispatched the dead
body for its post-mortem examination
which was conducted on 18.08.1980 at 12
noon by Dr. Har Narain, P.W.2, then
posted as Medical Officer in the District
Hospital, Lalitpur.

3. According to Dr. Har Narain, the
deceased was of average built and about
36 years old. He had died about a day
before. He found both the eyes of the
deceased partially closed, oozed clotted
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blood on both ears and nostrils and food
materials coming out through mouth and
nostrils. He also noticed the following
ante-mortem injuries on the person of the
deceased:

1. Lacerated wound 4 cms x 1 cm x bone
deep on right side head, 7 cms above from
left ear and left eyebrow, margins
lacerated.

2.
Lacerated wound 3 cms x 2 cms x
bone deep, just front of left ear oblique.

3.
Lacerated wound 6 cms x 3 cms x
bone deep, left side head just below and
above left ear.

4.
Lacerated wound 3 cms x 1 cm x
bone deep on back of right ear on mastoid
process.

5.
Lacerated wound 2 cms x 1 cm x
bone deep on front of right ear Margins
lacerated, clotted blood present.

According to Dr. Har Narain, the
deceased had died due to head injuries
sustained by him.

4. The police of P.S. Talbehat after
due investigation presented charge sheet
under Section 302 I.P.C. against the
appellant which culminated into his trial.
The case of the appellant was that of
denial and false implication.

5. The prosecution during the course
of trial examined Iddu Khan as P.W.1, Dr.
Har Narain as P.W.2, Hajju as P.W.3,
Shiv Singh P.W. 4, S.I. Surya Prasad as
P.W.5 and Sahid Mohammad as P.W.6
and filed certain affidavits of formal
witnesses. The learned court below on
conclusion of the trial held the appellant
guilty of the charge under Section 302
IPC and sentenced him as aforesaid,
dissatisfied from which the appellant has
come up in this appeal.

6. The learned counsel for the
appellant assailed the conclusions of the
learned trial court mainly on the ground
of insufficiency and incredibility of the
prosecution evidence and also disputed
the propriety of conviction under Section
302 I.P.C. and the sentence awarded to
the
appellant
therefore.
His
main
contention was that the prosecution
evidence consists of Iddu Khan P.W.1, an
interested witness and Hajju P.W.3, a
resident
of
another
village,
whose
presence on the spot is highly doubtful.
Iddu Khan, it would be found, has
admitted that about 10-12 years prior to
his evidence, there had been some
litigation between his father on the one
hand and the deceased and his brother, the
appellant, on the other over some landed
property. He has, however, denied having
any animosity with the family of the
appellant or the deceased. The house in
which he resides is divided by Jhankhar
from
the
house
of
the
appellant,
suggesting an inference that his house and
the house of the appellant at some point of
time must have been one. He has stated
that he had, just before the incident,
returned from his field, which he had
cultivated on batai, for taking his lunch. A
futile attempt was made by the learned
counsel for the appellant on the basis of
his replies to leading questions that he had
arrived at the spot after the incident and
had no occasion to witness the actual
assault. His statement, taken as a whole,
however, suggests that he had seen the
deceased fallen down on a stone in
injured condition he answered in the
affirmative but his this reply will not be
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314
looked into in isolation. He being a
village rustic, unaware of intricacies of
cross-examination, appears to have been
misled by the leading question. A careful
scrutiny of his evidence goes to show that
he had arrived at the scene of occurrence
while an altercation was still going on
between the appellant and his brother and
had witnessed the appellant giving the
fatal blows with the spade to his brother.
His evidence further shows that the
litigation between his father and the
appellant and the deceased had hardly any
impact on his conscious or sub-conscious
mind at the time of occurrence. He is not
even aware of the fact whether he had any
share in the properties held by the
appellant and the deceased and has
admitted that the landed properties stand
recorded in revenue records jointly in the
names of the appellant and his deceased
brother. So far as his presence on the spot
is concerned, that appears natural and
portable. His house is part of the same
house, half of which was in the
occupation of the appellant and the
deceased. His evidence finds full support
from the evidence of Hajju, P.W.3, who,
on hearing the altercation between the
appellant and his deceased brother which
preceded the actual incident, was attracted
on the scene of occurrence from the fair
price shop of one Bhaiyadin situated
nearby the house of the appellant, where
he had gone to purchase kerosene oil.
Hajju P.W.3, though not a resident of the
village of the incident, was at that time
under the employment of one Asghar of
that village and he has satisfactorily
accounted for his presence on the spot. He
is not shown to be in any way inimical to
the appellant. He has stated that after the
incident, the wife of the appellant had
entrusted certain agricultural produce to
him for purchase of a Saree for her
mother-in-law from the sale proceeds
there of and that he had brought the Saree
after disposing of the food grain so
entrusted to him. This speaks of his
normal and cordial relationship with the
family of the appellant.

7. Besides the aforesaid two factual
witnesses, one Asghar was also said to be
present at the time of incident, but he has
not been produced. The learned counsel
for
the
appellant
urged
that
nonproduction of Asghar, a material witness
and resident of the same village creates
suspicion about the genuineness of the
prosecution case. To our mind, however,
non-production
of
Asghar
by
the
prosecution can hardly be taken to have
any impact on the genuineness of the
prosecution version. It is a cardinal
principle of law that evidence is not
counted, but weighed. The aforesaid two
factual
witnesses
examined
by
the
prosecution have consistently supported
the prosecution case and there appears no
reason or motive on their part for giving
false evidence.

8. The incident, it would be found,
had taken place in broad day-light. Dr.
Har Narain, P.W.2, who held autopsy on
the dead body, has admitted either way
variation of two hours, at the most, in the
time of occurrence which works out
between 10 a.m. to 2 p.m on 17.08.1980
when there would have been no chance of
any
wrong
identification
or
misidentification of the assailant. The
F.I.R was lodged at 1-30 p.m. at P.S.
Talbehat which lies at a distance of six
and a half miles from the place of
occurrence. The promptitude with which
the F.I.R is found to have been lodged
also rules out any deliberation or
consultation on the part of the informant.
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An attempt was though made to show that
the F.I.R was concocted after the visit of
the Investigating Officer on the spot, but
there is no material on record to support
such an inference.

9. It was then argued that had the
appellant executed the crime, he would
not, after the incident, have stayed nearby
the place of occurrence facilitating his
apprehension by the villagers. This
argument relates to behavioral conduct of
the appellant and has nothing to do with
the merit of the case. It is a matter of
common knowledge that different persons
act differently in a given circumstance. It
was not unlikely that the appellant having
no criminal background would not have
comprehended such a grave repercussion
of his act which was done in a fit of rage
during the course of an altercation with
none else that his real elder brother.

10. Thus after giving a careful
thought to the facts and circumstances of
this case, we are of the view that the
learned trial court has rightly, relying on
the testimonies of Iddu Khan P.W.2 and
Hajju
P.W.3,
concluded
about
the
complicity of the appellant in the incident
and there does not appear any infirmity in
it.

11. It was lastly urged that even
from the materials brought on record
offence under Section 302 I.P.C. for
which the appellant has been convicted by
the learned trial court, is not made out.
There appears to be force in this
argument. From the evidence adduced, it
is found that the appellant and the
deceased were living jointly at the time of
occurrence. They had very little landed
property. They had also only one bullock.
Their
source
of
livelihood
was
agriculture. In such a situation, the
disposal of bullock would have adversely
affected their livelihood. It is in evidence
that during the course of altercation, the
deceased was insisting on selling the
bullock. It was, therefore, but natural on
the part of the appellant to have got
enraged with the deceased and lost control
over himself. It is also in evidence that the
accused after picking a spade dealt certain
blows to the deceased. The appellant had
not to move anywhere to take the spade
with which he assaulted the deceased. The
spade was lying there in the inner
courtyard itself. Keeping in view the
social background and the family status of
the appellant it is found that the appellant
during the course of sudden quarrel
inflicted the injuries to the deceased in a
fit of passion. Definitely this act of the
appellant falls within Explanation-I to
Section 300 I.P.C. bringing the offence
proved to be one punishable under
Section 304 Part 1, I.P.C. The conviction
thus recorded by the learned trial court
needs to be altered from Section 302
I.P.C. to Section 304 Part 1 I.P.C. As
regards the sentence, considering the fact
that the appellant is the sole bread-earner
in his family and has also undergone the
mental torture for a long time on his
conviction. We are of the opinion that a
sentence of seven years R.I. would
adequately serve the ends of justice.

12. Accordingly the appeal is
allowed partly. The conviction of the
appellant under Section 302 I.P.C. is
altered into one under Section 304 Part 1
I.P.C. and he is sentenced to undergo
seven years rigorous imprisonment for
that offence.
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13. The appellant is on bail. He shall
be taken into custody to serve out the
sentence.

14. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Lalitpur, who shall cause the appellant
Bhai Khan arrested and sent to jail to
serve out the sentence awarded to him. He
shall also submit compliance report
within two months.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.3.2003

BEFORE
THE HON'BLE A.K. YOG, J.
THE HON'BLE GHANSHYAM DASS, J.

Civil Misc. Writ Petition No. 37571 of 2002

Kunwar Baldevji

...Petitioner
Verses
The
XI
Additional
District
Judge,
Bulandshahr and others ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri Som Narain Mishra

Counsel for the Respondents:
Sri R.B. Singhal

Code of Civil Procedure- Order 15 rule 5-
first dated of Hearing- what is- the
tenant denied the liability of rent as well
as the relationship- when the court is
considering the liability of rent in future
should be treated as admitted rent-
answered accordingly.

Held- Para 11 and 16 Printed

Having
considered
the
aforesaid
decisions we find that the language of
order 15 Rule 5 Code of Civil Procedure
is unambiguous, clear and there is no
scope of doing violence with it and
stretch it to mean rent found by the
Court
to
be
due,
"Question
of
interpretation- of a statutory provision
arises only when it is ambiguous or
admits
two
interpretation
or
it
is
required to save the provision from being
declared void. No such contingency exist
in the present case.

Our answer to the question referred to
us is that order 15 Rule 5 Code of Civil
Procedure does not contemplate that
when Court decides the question of
liability of payment of rent in future, the
same should be treated as the admitted
rent due within the meaning of the
expression contained under order 15
Rule 5 Code of Civil Procedure.
Case law discussed:
2001 (44) ALR 804, 1995 AWC 56
1984 (2) ARC-144, 1983 (2) ARC-453
1979 AWC-183, 1976 ALJ 494 Pra 6
1980AWC-124, 1978 ALJ-1310
1985 (2) ARC-21

(Delivered by Hon'ble A.K. Yog, J.)

1. Heard Sri Rajesh Tandon, Senior
Advocate along with Sri Som Narain
Misra, Advocate on behalf of the
petitioners (tenants) and Sri R.B. Singhal,
Advocate on behalf of the contesting
respondents (landlord).

2. Above Writ Petitions have been
listed, before us on a reference made by a
learned single Judge. Referring order
dated September 10, 2002 is extracted:

"I have heard the learned counsel for
both sides.

Order 15 Rule 5 CPC as added in
U.P. requires that the tenant/defendant
should deposit the arrears of rent which is
admitted by him to be due with interest at
the first hearing. He should also deposit
future rent month to month during the