# Jamshed (In Jail) v. State of U.P

- **Citation:** (2023) 1 ILRA 965
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-23
- **Case number:** Criminal Appeal No. 6649 of 2006
- **Bench:** Suneet Kumar, Syed Waiz Mian
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jamshed-in-jail-v-state-of-u-p-49179
- **Pages:** 6

## Headnote

Criminal Law- Indian Penal Code, 1860-
Sections
300,
302
&
304-
Culpable
Homicide not Amounting to murder- As
per the First Information Report, the
incident had occurred all of sudden and it
is reflected from the perusal of the
material on record that act of the
appellant/accused falls within the ambit
of Section 300 (exception 1) as the
appellant had no intention to kill the
deceased and on sudden provocation and
quarrel incident had occurred. Further, he
had only fired once at the deceased-the
''culpable homicide' is genus and ''murder'
is its specie. All ''murder' is culpable
homicide but not vice versa. Speaking
generally
''culpable'
homicide
sans
''special
characteristic
of
murder'
is
culpable
homicide
not
amounting
to
murder- In the case of culpable homicide
the intention or knowledge is not so
positive or definite.

Where the occurrence is sudden, is not premeditated and without intention and there is no
repetition of shots, then the case will fall under
Section 304 of the IPC instead of Section 302
IPC.
Conviction
and
sentence
accordingly
modified.

Criminal Appeal partly allowed. (E-3)

## Text

1 All. Jamshed Vs. State of U.P.
965
evidence adduced by the prosecution in the
case; one pointing to the guilt of the
accused and the other to his innocence, the
view favouring the accused should be
adopted. This principle has become more
relevant where the prosecution seeks to
establish the guilt of the accused by
circumstantial evidence.

25. In the present case, we are of the
considered view that let alone establishing
chain of events which are so interwoven to
each other leading to no other conclusion
that
the
guilt
of
the
accused,
the
prosecution has failed even to prove a
single incriminating circumstance beyond
reasonable doubt. As such, the appellants
are given the benefit of doubt and the
appeal is liable to be allowed.

26. The appeal is allowed and the
conviction and sentence passed by the trial
court is set aside. The appellants are
acquitted of all the charges and they are
directed to be released forthwith if not
required in any other case.
----------
(2023) 1 ILRA 965
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Criminal Appeal No. 6649 of 2006

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

Counsel for the Appellant:
Sri Ajatshatru Pandey, Sri J.J. Munir, Sri
Mohd. Faiz, Sri Mohd, Faroq, Sri Narendra
Singh, Sri Prem Chand Saroj, Sri Ashish
Kumar Nagvanshi, Sri R.P. Rajan, Sri Mohd.
Raghib Ali, Sri Sagir Ahmad, Sr. Advocate

Counsel for the Respondents:
G.A., Sri D.K. Srivastava

Criminal Law- Indian Penal Code, 1860-
Sections
300,
302
&
304-
Culpable
Homicide not Amounting to murder- As
per the First Information Report, the
incident had occurred all of sudden and it
is reflected from the perusal of the
material on record that act of the
appellant/accused falls within the ambit
of Section 300 (exception 1) as the
appellant had no intention to kill the
deceased and on sudden provocation and
quarrel incident had occurred. Further, he
had only fired once at the deceased-the
''culpable homicide' is genus and ''murder'
is its specie. All ''murder' is culpable
homicide but not vice versa. Speaking
generally
''culpable'
homicide
sans
''special
characteristic
of
murder'
is
culpable
homicide
not
amounting
to
murder- In the case of culpable homicide
the intention or knowledge is not so
positive or definite.

Where the occurrence is sudden, is not premeditated and without intention and there is no
repetition of shots, then the case will fall under
Section 304 of the IPC instead of Section 302
IPC.
Conviction
and
sentence
accordingly
modified.

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Syed Waiz Mian, J.)

1. This Criminal Appeal under
Section 374 (2) Cr.P.C. has been preferred
by appellant/accused, Jamshed, against the
judgment and order dated 26.10.2006,
passed by Additional Session Judge, (Fast
Track Court), Chandauli, in Session Trial
No. 29 of 2022 (State vs. Jamshed)
whereby, he has been convicted and
sentenced, under Section 302 I.P.C. to
966 INDIAN LAW REPORTS ALLAHABAD SERIES
undergo Imprisonment for life with a fine
of Rs. 10,000/-, and under Sections 323,
504, 506 I.P.C. 6 months, one year and 1
and half year, simple imprisonment,
respectively, and in the event of default in
payment of fine, he has to further undergo
one year simple imprisonment. All the
sentences have been directed to run
concurrently.

2. Heard Shri Sagir Ahmed, learned
Senior Advocate, assisted by Mohd.
Farooq, learned counsel for the appellant
and Shri Ratnendu Kumar Singh, learned
A.G.A. for the State respondent and
perused the record.

3. Brief facts of the prosecution story
unfolds as under:

4. One Vijendra Yadav- informant, on
05.07.2001 at about 20.30 hours, presented
a
written
First
Information
Report,
whereupon, First Information Report No.
96 of 2001, Case Crime No. 113 of 2001,
under Sections- 302, 323, 504 and 506
I.P.C., at Police Station-Balua, DistrictChandauli, came to be registered against
the appellant/accused.

5. In the First Information Report, it is
alleged that on 05.07.2001, Satish Yadav,
after taking kerosene oil from the Fair Price
Shop, was on the way to his house; as soon
as, he had reached at the tea and beetle
shop at 6.30. p.m. of Nahku Prajapati, near
square, the accused riding upon motor bike,
came there and started to hurl abuses at
him. When Satish Yadav cautioned him,
the appellant got down from the vehicle
and started to beat him with fists and kicks;
witnesses, Lal Ji, Sanjay and others, who
were
present
there,
intervened
and
separated Satish Yadav from accused and
also reprimanded the accused against his
action; but he (accused) threatened them to
leave the place, otherwise, he would shoot
them; witnesses challenged him by saying
that it was not easy for him to kill them, on
which accused got infuriated and fired with
gun on the chest of Rajvansh, who fell
down and died on the spot. The accused
brandishing
his
gun
threatened
the
witnesses and he took to his heels leaving
the people on the spot, frightened.

6. Substance of the First Information
Report was got entered into G.D. on
05.07.2001 and the investigation was
handed over to the incharge of the Police
Station who took it and commenced the
same.

7. At the instance of the informant,
site plan of the place of the occurrence was
prepared. Inquest over the body of the
deceasedwas conducted and the dead body
of the deceased along with inquest report
and other necessary papers was forwarded
to the district mortuary to ascertain the real
cause of the death of the deceased.

8.

During
investigation,
the
investigating
officer,
recorded
the
statement of P.W.-1, and other witnesses.
On 08.07.2001, accused got arrested who
confessed to the incharge of the police
station Samant Bhadra Shukla that in
connection with the present incident he had
killed Rajvansh by licensee fire arm DBBl
gun .12 bore and had concealed the weapon
in the bushes, near old Idgah at village
Nathupur. He also disclosed to the arresting
officer that he can get the same recovered
from the said place, whereupon, the
investigating
officer
Samant
Bhadra
Shukla, incharge of the police station,
along with witnesses Raja Ram Yadav and
Rajendra Yadav, in the hope of such
recovery, took the accused at the given
1 All. Jamshed Vs. State of U.P.
967
place, where he, at 14:00 hours, got
recovered DBBl gun from the bushes and
admitted to have killed the deceased on
05.07.2001. He also pointed out that his
brother Tanjeen Ahamad, was the license
holder of the weapon who was serving in
Military and posted in Jammu and
Kashmir. In the cover of butt, of the
recovered DBBl gun, three live cartridges
were also got recovered. Both articles, ie.
DBBL gun and recovered live cartridges, in
the presence of the accused and witnesses
were got sealed separately in a piece of
cloth and memo of recovery, paper no.
Exhibit-Ka15, 212 was prepared by the
investigating officer Samant Bhadra Shukla
and accused and others also signed the
same.

9. The recovered DBBl gun was sent
to
CFL,
Uttar
Pradesh,
Mahanagar,
Lucknow,
for
examination.
CFL
examination report of the assault weapon,
paper no. 6Ka is on record.

10. On the basis of the recovery
memo Exhibit Ka-15, a First Information
Report No. 98 of 2001 was registered as
Crime No. 115 of 2001 under Sections
3/25/27 of Arms Act, against the accused at
the Police Station and investigation of it
was entrusted to SGP Rana Pratap Singh
who had inspected the place of the recovery
of fire arm and three cartridges. The
investigating officer also recorded the
statements of the informant and witnesses.

11. The investigating officer, of Case
No. 113 of 2001, under Sections-323, 504,
506 and 302 I.P.C., after collecting the
evidence against accused under Section 161
Cr.P.C. got convinced and submitted
Chalan with relevant material to the learned
Court.

12. Similarly, the investigating
officer, after collecting the evidence, in
Crime No. 115 of 2001, under Sections3/25/27 of Arms Act, against the accused
forwarded
the
charge
sheet
to
the
concerned Court.

13. By means of the instant criminal
appeal, the impugned judgment and order is
being assailed in connection with his
conviction with regard to Session Trial No.
29 of 2002, arising out of Case Crime No.
113 of 2001, under Sections-302, 323, 504,
506 I.P.C.

14. Charges against the accused under
Sections 302, 323, 504 and 506 I.P.C., were
framed by the learned District Sessions
Court
vide
order
dated
03.02.2003.
Appellant denied the charges and claimed
trial.

15. In order to prove the charges
against the accused, prosecution examined
P.W.-1, Brijendra Yadav, P.W.-2-Satish
Yadav, P.W.-3 Lal Ji, P.W.-4 Lal Mohar
Ram, P.W.-5 Shiva Chandra Tripathi,
investigating
officer,
P.W.-6-Samant
Bhadra
Shukla,
Investigating
Officer,
P.W.-7 Sunil Kumar Saxena, who in the
presence of Shiva Chandra Tripathi and
Panchan, prepared the inquest reportExhibit- Ka 6 of the deceased, in his
writing and signatures and had taken the
sealed dead body of the deceased to district
mortuary along with inquest report and
other papers to ascertain the real cause of
death of the deceased, P.W.-8 H.C.P. Rana
Pratap Singh, who has conducted the
investigation in Case Crime No. 115 of
2001, under Section 3/25/27 of Arms Act,
against the accused and P.W.10-Dr. A.K.
Pradhan, had conducted and examined the
dead body of the deceased and prepared the
968 INDIAN LAW REPORTS ALLAHABAD SERIES
autopsy report of the deceased in his
signature and writing.

16. Statement of accused under
Section 313 Cr.P.C. was recorded, wherein,
accused has stated that evidence of
informant and other witnesses is false. He
has also denied that on his pointing out
assault weapon i.e. DBBL gun and live
cartridges were recovered. Further, he
denied to have made confessional and
disclosure statement to the investigating
officer. He has further stated that his trial in
the present case was conducted on account
of his animosity. He also has claimed
innocence.

17. Further, on behalf of the
appellant,
documentary
evidence
in
connection with Session Trial No. 29 of
2002 vide schedule dated 09.03.2006,
postal receipt no. 12 dated 08.07.2001,
certified copy of telegraph message,
transmitted by one Nafis Fatima and
Shamim Ahmad and also documentary
evidence in respect of S.T. No. 28 of 2002,
by way of schedule dated 03.12.2004,
certified copy of the G.D. No. 29 time
21.10 hours, dated 06.07.2001, Police
Station- Balua, has been adduced.

18. After hearing the learned counsel
for the accused appellant and learned DGC
(criminal) for both respective parties, the
learned trial Court convicted and sentenced
the appellant/ accused vide conviction and
sentence order dated 19.10.2006 and
26.10.2006, respectively.

19.
 Feeling
aggrieved
by
the
impugned judgment and order, the instant
Criminal Appeal under Section 374 (2)
Cr.P.C. has been preferred, where by the
said impugned judgment and order is being
assailed on the grounds inter alia that the
conviction and sentences are against the
weight of evidence on record and contrary
to the law. It is also averred in the present
appeal that the conviction and sentences are
against the facts and are too severe. It is
prayed that the impugned judgment and
order dated 26.10.2006, passed by the
learned Additional Sessions Judge (F.T.C.),
Chandauli, be set aside and consequently
he may be exonerated.

20. At the outset the learned counsel for
the appellant/accused has submitted that in
view of the facts of the alleged incident, the
offence falls within Section 300 (exception 1)
I.P.C. because as per the prosecution case the
incident is alleged to have occurred without
premeditation and on account of sudden
quarrel and in the heat of the anger, therefore,
the learned trial court has erred to convict the
appellant under Section 302 I.P.C. He
submits that the facts of the occurrence reflect
that there was no intention/ premeditation,
hence it amounts to culpable homicide. He
has further contended that under the Indian
Penal Code, murder and culpable homicide
are separate offences. As per the prosecution
story the act of the appellant/accused is
covered under Section 300 (exception-1) i.e.
culpable homicide not amounting to murder
subject to certain provisos stipulated to
exception 1 (Section-300).

21. Learned counsel has also
submitted that the appellant/ accused has
no previous criminal antecedents and is
languishing in jail since 19.10.2006. It is
submitted that at the most the appellantaccused could be convicted and sentenced
for offence of culpable homicide not
amounting to murder.

22. Under Section 304 I.P.C., it is
stipulated that : The factors which reduce
murder to culpable homicide:
1 All. Jamshed Vs. State of U.P.
969

(a) it should have been committed
without premeditation:

(b)
it
should
have
been
committed upon a sudden quarrel:

(c) it should have been committed
in the heat of passion:

(d)
it
should
have
been
committed without the offender's having

taken undue advantage or acted in
a cruel or unusual manner:

23. Next it is submitted by the learned
counsel for the appellant that under Section
304
I.P.C.
the
maximum
sentence
prescribed
is
10
years,
whereas,
appellant/accused is suffering incarceration
since 19.10.2006.

24. Learned counsel has submitted
that
since
the
appellant/accused
has
suffered incarceration for more than 15
years, therefore, he could be sentenced with
imprisonment for which he has already
undergone.

25. As per the First Information
Report, the incident had occurred all of
sudden and it is reflected from the perusal
of the material on record that act of the
appellant/accused falls within the ambit of
Section 300 (exception 1) as the appellant
had no intention to kill the deceased and on
sudden provocation and quarrel incident
had occurred. Further, he had only fired
once at the deceased.

26. P.W.-10, Dr. A.K. Pradhan, who
has conducted the autopsy over the body of
the deceased has also stated in his
deposition that only one bullet in the body
of the deceased was found.

27. Under the scheme of Indian Penal
Code the ''culpable homicide' is genus and
''murder' is its specie. All ''murder' is
culpable homicide but not vice versa.
Speaking generally ''culpable' homicide
sans ''special characteristic 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 gravest 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.

28. In the case of culpable homicide
the intention or knowledge is not so
positive or definite. An injury caused may
or may not cause death. Even if the
exceptions 1 to 4 to Section 300 I.P.C. are
not culpable, the offence can still be
culpable homicide.

29. In our opinion, offence of the
accused falls within exception 1 of Section
300 I.P.C., therefore, the learned trial Court
has erred by convicting the accused under
Section 302 I.P.C.

30. Upon considering the rival
contentions of the parties, facts and
circumstances of the case, the manner of
commission of the crime by the appellant,
conviction of the appellant, under Section
302 I.P.C., who is in jail since 19.10.2006,
is converted to Section- 304 I.P.C.
accordingly, the sentence is modified to the
period of incarceration accused has already
undergone. As such, the instant appeal
stands allowed in part.

31. The impugned judgement stands
modified accordingly.
970 INDIAN LAW REPORTS ALLAHABAD SERIES

32. The accused/appellant shall be
released from jail as he has already served
out his requisite sentence for offence under
Section 304 I.P.C., if he is not wanted in
any other criminal case.

33. Let a copy of this judgment along
with lower court record be sent back to the
court concerned for immediate compliance.

34. Office to inform the concerned
Jail
Superintendent
through
C.J.M.
concerned to ensure compliance of the
order.
----------
(2023) 1 ILRA 970
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 23.12.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE SYED WAIZ MIAN, J.

Jail Appeal No. 7291 of 2017

Gulam Rashul ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Abhinav Jaiswal (A.C.)

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

Criminal Law- Indian Penal Code,1860-
Section 201- To constitute an offence
under Section 201 I.P.C. there must be
disappearance of some evidence of the
commission of offence; removing the
corpse of a murdered man from the scene
of murder to another place does not come
under Section 201 as the removal does not
cause the disappearance of evidence of
commission of the murder. Section 201
will apply only when the false information
touching the offence with intent to screen
the offender is given to those interested in
brining (sic) the offender to justice.

Mere removing the deceased from one place to
another will not amount to the offence u/s 201
IPC as the said section will come into play only
when evidence is destroyed or false information
is given to screen the offender from legal
punishment.

Indian Evidence Act, 1872 - Section 106-
There is cogent and clinching evidence of
P.W.-1, Anand Singh, P.W.-2 Ashish Malik
and P.W.-5 Manoj Kumar and the accused
has failed to adduce iota of evidence in his
favour with regard to the deceased having
separated from him, therefore, it was also
in the knowledge of the accused as to why
or for what reason he had done the
deceased to death. Merely on the basis of
the subsequent conduct of the accused
the trustworthy evidence of the witnesses
on record cannot be disbelieved. It is
evident that on 15.02.2004, at around
1.30 p.m. accused had taken the deceased
along with him from his house to the filed
which is situated at a distance of one
kilometre from the village to collect
fodder, but and had returned to the house
of Ashok all alone- Accused has not denied
that he had not taken the deceased from
the house towards the field to collect the
fodder and has also not taken a defence
that on way from the house of Ashok to
the sugar cane field deceased had parted
his company. In such circumstances, the
inference has to be drawn against him
that he had killed the deceased in the
sugar cane field. Accused has miserably
failed to rebut the presumption under
Section 106 of Evidence Act.

Where it is established that the deceased
had left in the company of the accused
and was found dead thereafter, then the
said fact being in the special knowledge
of the accused the burden of proof lay
upon him to explain the circumstances
under which the deceased met his death,
failing which adverse presumption shall
be taken against the accused. (Para 18,
19, 40, 41, 43)