# Jagdish & Anr. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 325
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-25
- **Case number:** Criminal Appeal No. 56 of 1989
- **Bench:** Pritinker Diwaker, Raj Beer Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-anr-in-jail-v-state-of-u-p-44738
- **Pages:** 10

## Headnote

A. Indian Penal Code, 1860 - Section 302
- Appeal against conviction.

Exception 4 of 300 IPC can be invoked if death
is caused (a) without premeditation, (b) in a
sudden fight, (c) without offenders having
taken undue advantage, (d) accused had not
acted in a cruel or unusual manner. (Para 21)

Doctrine of grave and sudden provocation
depends on the facts of each case; it cannot
be universally applied. (Para 23)

It cannot be laid down as a rule of universal
application that whenever death occurs on
account of single blow, section 302 IPC is
ruled out. It is the totality of established facts
and circumstances, events preceding the
incident which will determine whether an act is
culpable homicide or murder. (Para 24)
326 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal partly allowed (E-2)

List of cases cited: -

## Text

2 All. Jagdish & Anr. Vs State of U.P.
325

23. In this view of the matter, the
appeal appears to be devoid of merits and
is dismissed and order dated 08.03.2019,
whereby
the
appellants
have
been
summoned to face trial is passed by the
IInd Additional Session Judge/Special
Judge SC/ST Act, Gonda is hereby
affirmed.

24. At this stage it is submitted by
Ld. Counsel for the Appellants that it is
apprehended that the moment appellants
will surrender before the trial Court they
will be sent to prison and disposal of their
bail Application may take time. Therefore
a suitable direction be issued to decide
their bail application in a time bound
manner. Needless to say that disposal of
bail Applications in any case is the
prerogative and discretion of the Court
concerned and the same can not be
circumcised by passing any order in this
regard. Suffice is to say that since
appellant is willing to participate in the
trial, it is directed that in case the
appellants appear and surrender before the
court below within 30 days from today
and apply for bail, their prayer for bail
may
be
considered
and
decided
expeditiously in view of law laid by this
Court in the case of Amrawati and
another Vs. State of U.P. reported in
2004 (57) ALR 290 as approved by
Hon'ble Apex Court in "Lal Kamlendra
Pratap Singh Vs. State of U.P., 2009 (3)
ADJ 332 (SC) as well as the guidelines
issued in Hussain and Ors. Vs. Union of
India (UOI) and Ors. reported in
MANU/SC/0274/2017 and Brahm Singh
and others Vs. State of U.P & others in
(Criminal Misc. Writ Petition No. 15609
of 2016 decided on 08.07.2016)".

25. For a period of 30 days form
today or till the surrender of appellants
before trial court, whichever is earlier, no
coercive steps shall be taken against the
appellants in the above mentioned case. It
is stated that this period of 30 days shall
not be further extended in any case.
----------

(2019)10ILR A 325

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.09.2019

BEFORE

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

Criminal Appeal No. 56 of 1989

Jagdish & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri N.I. Jafri, Sri Mohd. Asif

Counsel for the Opposite Party:
A.G.A., Sri Amit Sinha.

A. Indian Penal Code, 1860 - Section 302
- Appeal against conviction.

Exception 4 of 300 IPC can be invoked if death
is caused (a) without premeditation, (b) in a
sudden fight, (c) without offenders having
taken undue advantage, (d) accused had not
acted in a cruel or unusual manner. (Para 21)

Doctrine of grave and sudden provocation
depends on the facts of each case; it cannot
be universally applied. (Para 23)

It cannot be laid down as a rule of universal
application that whenever death occurs on
account of single blow, section 302 IPC is
ruled out. It is the totality of established facts
and circumstances, events preceding the
incident which will determine whether an act is
culpable homicide or murder. (Para 24)
326 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Appeal partly allowed (E-2)

List of cases cited: -
1. State 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 St. of Panj. (criminal appel
no. 2284 of 2009 decided by 10.04.2017)
5. Ankush Shivaji Gaikwad Vs St. of Mah.
(2013) 6 SCC 770.
6. Kumaran Vs St. of Kerala and anr. (2017) 7
SCC 471.

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

1. This appeal arises out of the
impugned judgement and order dated
09.01.1989 passed by IInd Additional
Sessions Judge, Bulandshahr in Sessions
Trial No. 781 of 1987 (State Vs. Jagdish
and Others), convicting the accusedappellant no. 1 Jagdish under Section 302
of IPC and sentencing him to undergo
imprisonment for life.

2. In the present case, name of the
deceased is Jaipal Singh. The appellant
Jagdish and deceased Jaipal Singh were
having adjacent agricultural fields and
there was some dispute between them
regarding the bund/boundary of the same.
It is further not disputed that in the village
in question, there were number of blue
bulls and quite often they used to damage
the standing crops of the agriculturists.
On 20.08.1987 at about 07.00 am, when
the complainant party including Jaipal
Singh were working in their agricultural
field, accused-appellant Jagdish and other
accused persons namely Dharampal Giri,
Murti Giri, Mantoori Giri, Vinod Giri and
Govind Giri reached there. There was
some hot talks between them and
accused-appellant
Jagdish
levelled
allegations against the complainant-party
that they have removed the fencing of the
field as a result of which blue bulls have
damaged his field. Both the parties abused
each other and it was objected by the
deceased Jaipal Singh and it is said that
during this, accused-appellant Jagdish
gave a blow of spear near the neck of the
deceased. The other accused persons also
assaulted the complainant party by a club.
Number of villagers reached there and
then it was noticed that after sustaining
injury, Jaipal Singh had expired. On
20.08.1987 itself, at 10.35 am, on the
basis of written report Ex.Ka.3, lodged by
Kanchhid Singh (nephew of the deceased,
not
examined),
FIR,
Ex.Ka.4
was
registered against the accused-persons
under Sections 147, 148, 302, 307 of
I.P.C. Injured Gopichand (PW-3) was
medically examined vide Ex.Ka.2 on
20.08.1987 by Dr. Jagpal Singh (PW-5)
and the following two injuries were found
on his body:

"(i) stab wound elliptical 2 x .3
cm x 1.5 cm deep on face right side with
the parallel of jaw of mandible 4 cm right
of centre of chin. Margins of the wound
sharp.

(ii) stab wound with sharp
margins over right side of neck 4 cm
above from nose. Size .5 x .3 cm x 1.5 cm
deep elliptical. Traumatic swelling over
neck right side 10 x 8 cm."

3. Inquest on the dead body of the
deceased was conducted vide Ex.Ka.6 on
20.08.1987 and the body was sent for
2 All. Jagdish & Anr. Vs State of U.P.
327
postmortem, which was conducted by Dr.
R.K. Lal vide Ex.Ka.1 on 21.08.1987.

4. Autopsy Surgeon has found
following single injury on the body of the
deceased:

"1. Punctured wound (incised)
on neck Rt. side 1 cm x 1⁄2 cm direction
towards left and back 1 cm above right
clavicle
medial
end,
depth
3
cm
transverse"

5. The cause of death of the
deceased
was
due
to
shock
and
haemorrhage as a result of antemortem
injury.

6. While framing charge, the trial
Judge has framed charge against the
accused-appellant Jagdish under Sections
148, 302, 307/149, 323/149 of I.P.C.,
against accused Dharampal, charge was
framed under Section 148, 302/149,
307/149, whereas against rest of the
accused persons, charges were framed
under Sections 147, 302/149, 307/149,
323/149 of I.P.C.

7. So as to hold the accused-persons
guilty, prosecution has examined seven
witnesses. Statements of the accusedpersons were also recorded under Section
313 Cr.P.C. in which, they pleaded their
innocence and false implication.

8. By the impugned judgment, the
trial
Judge
has
convicted
accusedappellant
Jagdish
as
mentioned
in
paragraph no. 1 of this judgment, whereas
accused Dharampal was convicted under
Section 307 of I.P.C. The other accusedpersons have been acquitted by the trial
judge. During the pendency of present
appeal, accused Dharampal has expired
and, therefore, appeal in his respect is
dismissed as having become abated. The
present appeal confines only in respect of
accused-appellant Jagdish.

9. Learned counsel for the appellant
submits:

(i) that FIR is ante timed.

(ii) that FIR has not been proved
by the prosecution and the Investigating
Officer has not been examined.

(iii) that there are material
contradictions in the statements of Sohan
Singh (PW-1), Dayachand (PW-2) and
Gopichand (PW-3).

(iv)
that
first
informant
Kanchhid Singh has not been examined
by the prosecution to prove the FIR.

(v) that even if the entire
prosecution case is taken as it is, under no
circumstances, the appellant can be
convicted for committing the murder of
the deceased as his act would not fall
within the definition of murder. It has
been argued that at best, the appellant is
liable to be convicted under Section 304
Part I or 304 Part II of IPC.

10. Supporting the impugned
judgment, it has been argued by the State
counsel:

(i) that even if Investigating
Officer has not been examined by the
prosecution, no prejudice has been caused
to the defence. He submits that the FIR
has been proved by adducing secondary
evidence. He further submits that scribe
of the FIR Momraj (PW-6) has duly
proved the FIR.
328 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) that non-examination of first
informant Kanchhid Singh has also not
caused any prejudice to the defence as the
FIR has been proved by Momraj (PW-6).

(iii) that there are as many as
three eye witnesses including injured
Gopichand and all the three eye witnesses
have duly supported the prosecution case.

(iv) that the trial court was
justified in convicting the appellant under
Section 302 of IPC.

11. We have heard counsel for the
parties and perused the record.

12. Sohan Singh (PW-1) is a father
of first informant Kanchhid Singh. He is
also the uncle of Gopichand (PW-3),
injured eye witness. He states that first
informant Kanchhid Singh is missing
since
February-March
and
his
whereabouts is not known. The field of
accused-appellant
Jagdish
and
other
accused persons were adjacent and on the
date of incident at about 6:00 am when he
was working in his field along with
deceased Jaipal Singh, Gopichand (PW-3)
and other persons, the accused persons
reached there and started abusing them.
He states that they were making allegation
against
them
that
on
account
of
removing/damaging the fencing of the
field, blue bulls have damaged the field of
accused appellant Jagdish. Both the
parties started abusing each other and then
accused Jagdish, who was carrying spear
with him caused injury to Jaipal Singh,
whereas the other accused persons, who
were having clubs, have also caused
injury to Gopichand and others. He states
that after sustaining injury, Jaipal Singh
died at the place of incident itself. In the
lengthy cross-examination, this witness
remained firm and has reiterated as to the
manner in which the incident occurred.

13. Dayachand (PW-2) is another
eye witness to the incident. His statement
is almost identical to that of Sohan Singh
(PW-1). He too has categorically stated as
to the manner in which the incident
occurred and appellant Jagdish caused
spear injury to the deceased. He has also
admitted the fact that blue bulls used to
damage the field of agriculturists and the
accused appellant made allegation against
the complainant party that his field has
been damaged by the blue bulls on
account of removing of fencing by the
complainant party.

14. Gopichand (PW-3) is an injured
eye witness to the incident. His statement
is somehow similar to Sohan Singh (PW1) and Dayachand (PW-2) and he has also
supported the prosecution case. In the
cross-examination,
this
witness
also
remained firm and nothing could be
elicited from him.

15. Dr. R.K. Lal (PW-4) conducted
post-mortem on the body of the deceased
and found injury near the neck of the
deceased as mentioned in paragraph no. 4
of this judgement.

16. Dr. Jagpal Singh (PW-5)
medically examined injured Gopichand.

17. Momraj (PW-6), scribe of the
FIR, has stated that the report was
prepared as was dictated to him by
Kanchhid Singh. He states that written
report Ex.Ka.3 was prepared by him.
Bhan Singh (PW-7), is a police constable,
investigated the matter and also proved
the signature of Investigating Officer. He
has also proved the GD entry and the FIR.
2 All. Jagdish & Anr. Vs State of U.P.
329

18. Close scrutiny of evidence
makes it clear that the Investigating
Officer has not been examined and
likewise the informant Kanchhid Singh
has also not been produced in the court as
a witness. The evidence reflects that
Kanchhid Singh was missing during the
time of evidence and, therefore, he could
not come in the court. Non-examination
of these two persons would not damage
the case of prosecution in any manner. It
is a settled proposition of law that the
basic purpose of lodging FIR is to set the
criminal law into motion and the FIR is
not substantive piece of evidence. It is not
disputed that the incident occurred at
07:00 am on 20.08.1987 and at 10:30 am,
FIR was lodged. The distance between
police station and place of occurrence is
about 9 kms., thus, for all practical
purposes, it can be said that a very prompt
FIR was lodged. The FIR has been duly
proved by its scribe Momraj (PW-6), who
has stated that whatever was dictated to
him by the informant Kanchhid Singh,
was mentioned in the written report,
which was given to the police. The same
has been further proved by Bhan Singh
(PW-7), who has authenticated the G.D.
entry about the registration of the FIR and
the chik report and other documents
prepared by the Investigating Officer. He
has also proved hand writing of the
Investigating
Officer.
Thus,
nonexamination of Investigating Officer or
informant will not give any benefit to the
defence as no prejudice has been caused
to the defence. Three eye witnesses to the
incident
i.e.
Sohan
Singh
(PW-1),
Dayachand (PW-2) and the injured eye
witness Gopichand (PW-3) have duly
supported the prosecution case and have
categorically stated as to the manner in
which the deceased was killed by the
accused persons. Their statements found
due support from the post-mortem report
of the deceased and considering all these
aspects of the case, complicity of the
appellant in commission of offence has
been duly proved by the prosecution.

19. The next question, which arises
for consideration of this Court, is as to
whether the act of the appellant would fall
within the definition of 'murder' or it
would
be
'culpable
homicide
not
amounting to murder'.

20. 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
330 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

21. 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
2 All. Jagdish & Anr. Vs State of U.P.
331
self-control, in case of Exception 4, there
is only that heat of passion which clouds
men's sober reason and urges them to
deeds which they would not otherwise do.
There is provocation in Exception 4 as in
Exception 1, but the injury done is not the
direct consequence of that provocation. In
fact, Exception 4 deals with cases in
which notwithstanding that a blow may
have been struck, or some provocation
given in the origin of the dispute or in
whatever way the quarrel may have
originated, yet the subsequent conduct of
both parties puts them in respect of guilt
upon 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".

22. 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
332 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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."

23. 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
2 All. Jagdish & Anr. Vs State of U.P.
333
the intention to kill, it will obviously fall
beyond the scope of culpable homicide
not amounting to murder....."

24. 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;
(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...."

25. 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.

26. If we apply the above principle
of law in the present case, what emerges
from the evidence, is that there was no
334 INDIAN LAW REPORTS ALLAHABAD SERIES
premeditation on the part of the accused
persons to commit the offence and it
started when the standing crop of the
accused appellant was damaged by the
blue bulls and he made allegation against
the deceased and the complainant party
that on account of removing fencing by
them, his crop is being damaged. The
evidence also reflects that both the parties
had altercation with each other. They
abused each other and thus, it can safely
be held that it was a sudden fight and in
the heat of passion upon a sudden quarrel
single injury was caused to the deceased
resulting his death. Appellant has not
taken any undue advantage or acted in a
cruel
or
unusual
manner
while
committing the offence. Case of the
appellant
would,
thus,
fall
under
Exception 4 of Section 300 of IPC and it
can be safely held that the appellant is
liable to be convicted for committing
'culpable homicide not amounting to
murder'.

27. Taking the cumulative effect of the
evidence and the nature of injury, we are of
the view that the appellant is liable to be
convicted under Section 304 Part II of IPC.

28. Now the another important
question is as to what would be the
appropriate sentence to be imposed upon
the appellant.

29. Learned counsel for the
appellant submits that appellant is willing
to pay suitable compensation to the
deceased family and, therefore, minimum
jail sentence be imposed upon him.

30. Considering the cumulative
effect of the evidence and the fact that the
incident occurred about 32 years back and
at present the appellant is aged about 65
years, we are of the view that jail sentence
of 5 years would meet the ends of justice.
Order accordingly.

31. Further considering the provisions of
Section 357 of Cr.PC and the judgment of the
Supreme Court in Ankush Shivaji Gaikwad
v State of Maharashtra; (2013) 6 SCC 770,
it is directed that the appellant shall also be
liable to pay compensation of Rs. 2,00,000/-
(two lakhs) to the wife of the deceased. He is
directed to deposit the said amount within two
years before the trial court. In the eventuality
of depositing the said amount by the appellant
before the trial Court, it would be the duty of
the trial Court to disburse the said amount in
favour of wife of the deceased. In case, the
appellant fails to deposit the said amount, he
shall further undergo Jail sentence of one year
and the court below shall proceed against him
in the light of judgment of the Apex Court in
Kumaran Vs. State of Kerala and another;
(2017) 7 SCC 471.

32. The appellant is reported to be
on bail. He be taken into custody
forthwith to serve the remaining sentence.

33. The appeal is partly allowed.

34. A copy of this order be
transmitted to the court concerned for
necessary compliance.
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(2019)10ILR A 334

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2018
BEFORE

THE HON'BLE KARUNA NAND BAJPAYEE, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 3189 of 2014