# Jumma Shah & Ors v. State of U.P. 1570 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 5 ILRA 1569
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Criminal Appeal No. 6099 of 2019
- **Bench:** Siddhartha Varma, Madan Pal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jumma-shah-ors-v-state-of-u-p-1570-indian-law-reports-allahabad-series-53294
- **Pages:** 10

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 304 Part II/34, 323/34
- Culpable Homicide not amounting to
Murder - Sudden Fight - Exception 4 to
Section 300 - Absence of premeditation
- Altercation over removal of barrier on
pathway leading to scuffle - Blows with
lathi and danda resulting in death - No
prior enmity or motive - Held, occurrence
was sudden, without premeditation, in
heat of passion - Accused did not act
cruelly or take undue advantage - Case
falls under Exception 4 to Section 300 -
Conviction altered from Section 302/34
IPC to Section 304 Part II/34 IPC. (Paras
25, 26, 30, 31 and 34)

HELD:
In the present case, the question whether the
appellants could be said to have caused the
injuries with intention of causing death of the
deceased is concerned, admittedly, from the
evidence adduced by the prosecution, it came
into light that the incident had taken place on
the spur of moment and in heat of passion upon
a sudden quarrel, therefore, it can not be said
that the appellants have pre-motivated or
premeditation of mind to cause injuries to the
deceased. (Para 25)

In the postmortem report no fracture has been
found on the body and head of the deceased,
which indicates that the appellants had no
intention to cause grievous injuries or to kill the
deceased. Knowledge and intention of a person
is a mental St. and the direct evidence for the
same is not possible, it can only be gathered by
the attending circumstances like weapon used,
commission of crime, manner of assault, nature
and number of injuries. These are the factors,
which will have to be considered to justify the
intention and knowledge. (Para 26)

On going through the entire evidence on record,
we find that the necessary ingredients to attract
4th Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there existed no
pre-meditation; it was a sudden fight; the
offender has not taken undue advantage or
acted in a cruel or unusual manner, therefore,
the case in hand clearly falls under fourth
exception to section 300 IPC. (Para 30)

In the case of Jugut Ram Vs. St. of Chhattisgarh
(2020) 9 Supreme Court Cases 520, the Hon'ble
Apex Court modified/altered the charges from
Section 302 IPC to 304-II IPC. In that case also
the weapon lathi was used and the case was of
sudden provocation. In the said case two
injuries were found on the head of the deceased
caused by lalthi blow and in the instant case
also two injuries were found on the head of the
deceased caused by lathi, therefore, we are of
the definite opinion that in the instant case the
conviction of the appellants could be altered
from Section 302 read with Section 34 IPC to
304-II IPC. (Para 31)

n the present case, the act of appellants are not
pre-meditated or pre-motivated, but is a result
of sudden fight and quarrel in the heat of
passion. Therefore, the finding of guilt recorded
by the trial court under Section 302 read with
Section 34 IPC deserves to be converted into
Section 304-II IPC, therefore, it can be said that
though the appellants had knowledge that such
an act can result in the death of deceased, but
there was no intention to kill the deceased.
(Para 34)

Appeal partly allowed. (E-14)

List of cases cited:

## Text

5 All. Jumma Shah & Ors. Vs. State of U.P.
1569
29.
260/2023 u/s 406, 420,
504, 506, 34
Bail granted on
12.6.2024
30.
261/2023 u/s 406, 420,
504, 506, 34 IPC
Bail granted on
12.6.2024
31.
189/2023 u/s 420, 406,
506, 34 IC
Bail granted on
13.6.2024
32.
196/2023 u/s 406, 420
IPC
Bail granted on
13.6.2024
33.
130/2023 u/s 420, 406,
504, 506 IPC
Charge sheet not
submitted.
34.
184/2023 u/s 406, 420,
506 IPC
Charge sheet not
submitted.
35.
196/2023 u/s 420, 406
IPC
Charge sheet not
submitted.
36.
250/2023 u/s 406, 420,
506 IPC
Charge sheet not
submitted.
37.
128/2023 u/s 420, 406,
504, 506 IPC
Charge sheet not
submitted.
38.
156/2023 u/s 420, 406,
504, 506 IPC
Charge sheet not
submitted.
39.
163/2023 u/s 420, 406
IPC
Bail application
pending.
40.
246/2023 u/s 406, 420
IPC
Charge sheet not
submitted.
41.
112/2023 u/s 406, 419,
420, 467, 468. 471,
120B IPC
Present Case.
42.
448/2022 u/s 406, 506
IPC
Charge sheet not
submitted.
43.
128/2023 u/s 406, 420,
504, 506 IPC
Charge sheet not
submitted.
44.
222/2023 u/s 3(1) UP
Gangster Act
Charge sheet not
submitted.
45.
19/2020 u/s 419, 420,
504, 506 IPC
Charge sheet not
submitted.
46.
154/2023 u/s 406, 420
IPC
Charge sheet not
submitted.
47.
311/2022 u/s 323, 504,
506 IPC
Charge sheet not
submitted.
48.
796/2019 u/s 147, 279,
323, 325, 337, 338,
427, 504 IPC
Charge sheet not
submitted.
49.
54/2023 u/s 406, 420
IPC
Charge sheet not
submitted.
50.
487/2013 u/s 147, 148,
323, 342, 427, 504,
506 IPC
Charge sheet not
submitted.
51.
268/2023 u/s 406, 420
IPC
Charge sheet not
submitted.
52.
361/2023 u/s 419, 420,
406 IPC
Charge sheet not
submitted.

22. This Court has taken into consideration
of the fact that the applicant has almost 52
criminal cases pending against him under section
420 IPC. Under Schedule 1 of the Code or
Criminal Procedure, 1973 (Cr.P.C.), an offence
under Section 420 IPC is cognizable and nonbailable and is triable by a Magistrate of the First
Class, therefore, the instant offence is serious in
nature. It is also noted that he is habitual offender of
commission of the same nature of the offence
punishable under Section 420 of IPC. In view of the
aforesaid facts, there is great apprehension in the
mind of the Court that applicant upon release on
bail may tamper with evidence and may influence
the witnesses. There are also great apprehension
that he may breach the conditions imposed by this
Court and can repeat the same nature of offence in
future. Taking into the consideration of aforesaid
reasons, this Court cannot take lenient view while
exercising its discretionary jurisdiction.

23. It is pertinent to note that co-accused in
the matter who has been released on bail,
however, bearing no resemblance to the present
applicant as he is habitual offender and has
criminal history of 52 cases.

24. Keeping in view his criminal
antecedents, credible material on record to
connect the applicant to the offence at this stage
and laws laid down by the Hon'ble Supreme
Court as discussed above. without expressing
any finding or opinion on merit of the case, this
Court is of the view that the applicant is not
entitled to be released on bail.

25. Accordingly, the instant bail application
is dismissed as devoid of any merit.
----------
(2025) 5 ILRA 1569
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.05.2025
BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE MADAN PAL SINGH, J.

Criminal Appeal No. 6099 of 2019

Jumma Shah & Ors. ...Appellants
Versus
State of U.P. ...Respondent
1570 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellants:
Anil Kumar Yadav, Brij Raj Verma, Rajesh
Kumar Tiwari

Counsel for the Respondent:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302/34, 304 Part II/34, 323/34
- Culpable Homicide not amounting to
Murder - Sudden Fight - Exception 4 to
Section 300 - Absence of premeditation
- Altercation over removal of barrier on
pathway leading to scuffle - Blows with
lathi and danda resulting in death - No
prior enmity or motive - Held, occurrence
was sudden, without premeditation, in
heat of passion - Accused did not act
cruelly or take undue advantage - Case
falls under Exception 4 to Section 300 -
Conviction altered from Section 302/34
IPC to Section 304 Part II/34 IPC. (Paras
25, 26, 30, 31 and 34)

HELD:
In the present case, the question whether the
appellants could be said to have caused the
injuries with intention of causing death of the
deceased is concerned, admittedly, from the
evidence adduced by the prosecution, it came
into light that the incident had taken place on
the spur of moment and in heat of passion upon
a sudden quarrel, therefore, it can not be said
that the appellants have pre-motivated or
premeditation of mind to cause injuries to the
deceased. (Para 25)

In the postmortem report no fracture has been
found on the body and head of the deceased,
which indicates that the appellants had no
intention to cause grievous injuries or to kill the
deceased. Knowledge and intention of a person
is a mental St. and the direct evidence for the
same is not possible, it can only be gathered by
the attending circumstances like weapon used,
commission of crime, manner of assault, nature
and number of injuries. These are the factors,
which will have to be considered to justify the
intention and knowledge. (Para 26)

On going through the entire evidence on record,
we find that the necessary ingredients to attract
4th Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there existed no
pre-meditation; it was a sudden fight; the
offender has not taken undue advantage or
acted in a cruel or unusual manner, therefore,
the case in hand clearly falls under fourth
exception to section 300 IPC. (Para 30)

In the case of Jugut Ram Vs. St. of Chhattisgarh
(2020) 9 Supreme Court Cases 520, the Hon'ble
Apex Court modified/altered the charges from
Section 302 IPC to 304-II IPC. In that case also
the weapon lathi was used and the case was of
sudden provocation. In the said case two
injuries were found on the head of the deceased
caused by lalthi blow and in the instant case
also two injuries were found on the head of the
deceased caused by lathi, therefore, we are of
the definite opinion that in the instant case the
conviction of the appellants could be altered
from Section 302 read with Section 34 IPC to
304-II IPC. (Para 31)

n the present case, the act of appellants are not
pre-meditated or pre-motivated, but is a result
of sudden fight and quarrel in the heat of
passion. Therefore, the finding of guilt recorded
by the trial court under Section 302 read with
Section 34 IPC deserves to be converted into
Section 304-II IPC, therefore, it can be said that
though the appellants had knowledge that such
an act can result in the death of deceased, but
there was no intention to kill the deceased.
(Para 34)

Appeal partly allowed. (E-14)

List of cases cited:

1. Gurmukh Singh Vs St. of Har., (2009) 15 SCC 635

2. Pappu Vs St. of M.P., (2006) 7 SCC 391

3. Pulicherla Nagaraju @ Nagaraja Reddy Vs St.
of A.P., (2006) 11 SCC 444 : (2007) 1 SCC (Cri)
500

4. Jugut Ram Vs St. of Chhattisgarh, (2020) 9
SCC 520

(Delivered by Hon'ble Madan Pal Singh, J.)
5 All. Jumma Shah & Ors. Vs. State of U.P.
1571

1. The instant criminal appeal is
directed against the judgment and order
dated 12.07.2019 passed by Additional
Sessions Judge-IV/Special Judge (E.C.
Act), Pilibhit in Sessions Trial No. 230 of
2016 (State Vs. Jumma Shah and two
others), arsing out of Case Crime No. 1020
of 2016, under Sections 302/34, 323/34
IPC, Police Station Puranpur, District
Pilibhit, whereby the appellants have been
convicted and sentenced as follows:

(i). 302/34 IPC

:
Life
Imprisonment along with fine of Rs.5000/-
each and in default of payment of fine 30
days simple imprisonment to each.

(ii). 323/34 IPC
:
One
year
imprisonment to each.

2. Facts giving rise to the present
appeal may be summarized as under:

(i). The prosecution case in brief
is that on the basis of written report dated
31.05.2016 of the informant Parveen, wife
of the deceased (Gulfam), resident of
Anandpur @ Bhagwantapur, Police Station
Puranpur, District Pilibhit, which has been
exhibited as Ext. Ka-2, a first information
report was lodged alleging therein that her
chachera
father-in-law
Jumma
Shah
(appellant no.1) and Husnain Ali (appellant
no.2) had put a hurdle in her pathway by
putting a block of wood, due to which her
way to move outside the house had been
blocked. When her father-in-law Alam
Shah had approached the appellants and
asked them to remove the said wood from
the pathway, the appellants, armed with
lathi and danda started beating her fatherin-law, and on his screaming, Gulfam the
husband of the informant came there to
rescue his father. The appellants attacked
him also with lathi and danda, and gave
him serious blows and due to which he
became unconscious. He was brought to the
Government Hospital by Ambulance and
during treatment, he succumbed to his
injuries.

(ii). On the basis of chik FIR,
Case Crime No. 1020 of 2016, under
Sections 304, 323 IPC, Police Station
Puranpur, District Pilibhit was registered
against the appellants.

(iii). After the death of the
deceased, panchayatnama was conducted,
which was marked as Ext. Ka-1 and the
body was sent for autopsy.

(iv).
After
completing
the
investigation, a charge-sheet was filed
against the appellants in the Court of
Chief Judicial Magistrate, Pilibhit, under
Sections 304, 323 IPC. The cognizance
of the offence was taken on 24.08.2016
by the Chief Judicial Magistrate, Pilibhit
and thereafter the case was committed to
the Court of Sessions on 01.11.2018 for
trial.

(v). That on the basis of evidence
collected during investigation, vide order
dated 17.09.2016, charges under Sections
323/34 and 304/34 IPC were framed
against the appellants. The appellants
denied the charges and claimed to be tried.
Vide order dated 03.04.2017, the then
Sessions Judge, Pilibhit modified the order
dated 17.09.2016 whereby the charges were
framed against the appellants under Section
304/34 IPC and amended the charges to
read that they were under Section 302/34
IPC. The appellants denied the charges and
claimed trial.

(vi). The prosecution to prove its
case had examined P.W.1-Alam Shah,
P.W.2-Parveen (informant of the case),
P.W.3-Head Constable Rajnath Singh,
P.W.4-Afroz, P.W.5-Dr. Jagdish Prasad,
P.W.6-Jahan Shah, P.W.7-Smt, Jannati and
P.W.8-Sub
Inspector
Shriram
Tamta
(Investigating Officer of the case).
1572 INDIAN LAW REPORTS ALLAHABAD SERIES

(vii). The prosecution in support
of its case had also produced oral as well as
documentary evidence, which were marked
as Panchayatnama Ext. Ka-1, Written
report Ext. Ka-2, G.D. entry Ext. Ka-3,
Chik FIR Ext. Ka-4, G.D. entry made in the
general diary as Ext. Ka-5, Postmortem
Report Ext. Ka-4A, Site Plan of the place
of incident Ext. Ka-5, Arrest memo Ext.
Ka-6 and Charge-sheet Ext. Ka-7.

3. Heard Shri Ajay Kumar Pandey and
Shri
Rahul
Saxena,
learned
counsel
appearing on behalf of appellants, Shri C.B.
Dhar
Dubey,
learned
Additional
Government Advocate for the Staterespondent and perused the record.

4. Learned counsel for the appellants
submits that the trial court has not
appreciated the evidence in its proper
perspective and illegally and wrongly
convicted and sentenced to the appellants
for life imprisonment. He further submits
that the trial court had not convicted the
appellants as per the ingredients of sections
302/34, 323/34 IPC while holding the
appellants guilty, therefore, the judgment
and orders passed by the trial court
deserves to be set aside and quashed and
further appellants deserve to be acquitted
from the charges levelled against them.

5. Learned counsel for the appellants
further submits that there are material
contradictions in the testimonies of the
prosecution witnesses and despite that the
appellants had been held guilty of the
offences, which they had not committed.
Learned counsel for the appellants further
submits that there is no independent
witness of the incident, who had come
forward to support the prosecution case.
The trial court had committed manifest
error of law in convicting the appellants
under Section 302/34 IPC whereas the
prosecution had failed to prove its case
beyond all reasonable doubts. The ocular
version is totally inconsistent with the
medical evidence.

6. Learned counsel for the appellants
has also submitted that the conviction of
the appellants are based on surmises and
conjectures, which deserves to be set aside
and quashed.

7. Shri C.B. Dhar Dubey, learned
Additional
Government
Advocate
appearing on behalf of the State-respondent
vehemently opposed the contentions raised
on behalf of the appellants and submitted
that the conviction and sentence recorded
by the trial court vide judgment and order
dated 12.07.2019 is based on proper
appreciation of evidence and does not call
for any interference by this Court. The
criminal appeal filed by the accusedappellants deserves to be dismissed.

8. Before discussing the arguments
advanced on behalf of the parties, it is
necessary to have a glance on the evidence
recorded by the trial court.

9. P.W.1-Alam Shah, who is the father
of the deceased in his examination-in-chief
has stated that the incident took place ten
months ago at about 6.00 pm in the
evening. The accused appellants, namely,
Jumma Shah, Hasnain Ali and Hashim, had
put barriers on the way of the informant. As
soon as he came to know about the said
barriers, he went there and removed them.
Consequently, the accused persons felt
annoyed and started beating the P.W.-1
with lathi and dandi. The grandson of the
P.W.1 informed the said incident to Gulfam
(who is the son of P.W.1-Alam Shah). He
rushed to the spot and tried to save his
5 All. Jumma Shah & Ors. Vs. State of U.P.
1573
father. When Gulfam reached the spot,
accused persons also started beating
Gulfam with lathies and dandas, owing to
which he sustained serious injuries and he
fell down on the ground. Thereafter the
informant called for an Ambulance and
took Gulfam to the Government Hospital,
where he was declared dead.

10. P.W.2-Smt. Parveen Begum, who is the
wife of the deceased, in her examinationin-chief has reiterated the same facts as had
been stated by P.W.2-Alam Shah.

11. P.W.3-Head Constable Raj Nath
Singh, in his examination-in-chief stated
that on 31.05.2016, he along with one
Munshi Chandreshwar Prasad Singh and
Constable Manoj Kumar were present at
the police station Puranpur. They had
received the information at about 20.40
hours from CHC Puranpur about the death
of Gulfam and the injuries of Alam Shah.
After making entries in the GD No. 54 at
20.40 hours, Sub Inspector S.R. Tamta
along with other police force departed to
the CHC Puranpur. He had further stated
that on the same day i.e. on 31.05.2016, the
informant came to the police station and
had given the application regarding the
incident and on the basis of that application
Case Crime No. 1020 of 2016, under
Section 304, 323 IPC was registered
against the appellants.

12. P.W.4-Afroz, is the younger
brother of the deceased. In his examinationin-chief, he had reiterated the same facts as
had been stated by P.W.1-Alam Shah.
Therefore, it does not require repetition
again.

13. P.W.5-Dr. Jagdish Prasad, in his
examination-in-chief has stated before the
trial court that on 01.06.2016, he was
posted as Medical Officer in C.H.C.,
Puranpur. He conducted the postmortem of
the deceased Gulfam son of Mohd. Alam
Shah on the same day at 4.15 pm. On
external examination, the Doctor had found
following injuries on the body of the
deceased:

(i) Abraded contusion c traumatic
swelling on right side of head just above
right ear 10 cm x 12 cm.

(ii) Abraded contusion on left
side of head c traumatic swelling size 9 cm
x 11 cm just above left ear.

(iii) Abraded contusion just above
left elbow joint 9 cm x 2 cm.

(iv) Abraded contusion just above
right elbow joint 3 cm x 1 cm.

(v) Abraded contusion above
right hip 4 cm x 1.5 cm.

On internal examination of the
dead body of the deceased, the cause of
death was found to be ante mortem injuries.
The injuries were caused by hard and blunt
objects like lathi, danda and Kundala.

14.
P.W.6-Jahan
Shah,
in
his
examination-in-chief has stated that on
01.06.2016, he had gone to Puranpur
Government Hospital, where he saw the
dead body of the Gulfam. Panchayatnama
was prepared in his presence and he has
been made witness of the panchayatnama
and he had put his signature over it.

15. P.W.7-Smt. Jannati, who is the
mother of the deceased, in her examinationin-chief has stated that the incident had
happened two and half years and one
month prior to the date of testimony at 5.00
p.m. in the evening. At that time she was
present in her house. On hearing the hue
and cry of her husband, she along with her
daughter-in-law (Bahu) Parveen and son
Gulfam came at the place of incident and
1574 INDIAN LAW REPORTS ALLAHABAD SERIES
saw that the appellants were beating to
Alam Shah. When Gulfam tried to rescue
his father, the appellants gave lathi and
danda blow to Gulfam as well, on account
of which he sustained serious injuries and
he became unconscious. They dialled 108
ambulance and soon Gulfam was admitted
in the District Hospital, Puranpur, where
the treating doctors declared him dead.

16. P.W.8- Sub Inspector Shriram
Tamta (Retd.), Investigating Officer, in his
examination-in-chief had stated that on
31.05.2016 he was posted as Sub Inspector
at
police
Station
Puranpur
and
the
investigation of this case was handed over
to him. During trial he had inspected the
spot, prepared Naksa Najari of the place of
incident, which was marked as Ext-Ka-5.
The arrest memo was prepared as Ext. Ka-6
and the charge-sheet was prepared as Ext.
Ka-7.

17. After closing of the prosecution
evidence, the statements of the accused
persons under section 313 of the Code of
Criminal Procedure was recorded. The
accused persons stated before the trial court
that they had been falsely implicated in the
present case. They further stated that the
witnesses due to enmity deposed against
them.

18. We have heard the arguments of
learned counsel for the parties and perused
the evidence available on record.

19. So far as the contention regarding
non production of independent witness is
concerned, from the perusal of the trial
court record, it transpires that all the
prosecution witnesses and the accused
persons belonged to one and the same
family, hence there is no doubt about the
identity of the accused persons with regard
to the commission of offence. Nowadays, it
is being seen that in villages also no one
comes forward to support the incident only
with a view to avoid any kind of enmity in
the village, so merely on the basis of the
fact that no independent witness had come
forward to support the prosecution case, the
prosecution
story
as
setup
by
the
prosecution cannot be discarded. Moreover,
there is no such rule that the family
members cannot be said to be reliable
witness in any case.

20. From the perusal of the site plan
prepared by the Investigating Officer
(P.W.8), it transpires that the accused
persons and the witnesses were living in
adjoining accommodations and the incident
was said to have taken place at about 6.00
p.m. in the month of March. Generally at
that time, it is dusk. Villagers return to their
homes from their work places, therefore,
the presence of the prosecution witnesses at
the place of occurrence cannot be doubted.

21. The ocular version of the witnesses
also corroborates the medical evidence.
Further more during cross-examination
prosecution could not establish any prior
enmity between the families of the accused
and the deceased, therefore, it cannot be
said that the accused persons had been
implicated in the garb of prior enmity, thus,
in our view, there is no doubt about the
presence of the witnesses at the spot when
the incident took place.

22. So far as the contradiction in the
testimonies of the prosecution witnesses is
concerned, we have perused the testimonies
of all the prosecution witnesses and found
no
contradiction
regarding
place
of
incident, time of incident, manner of
assault and the accused involved in the
crime because all the prosecution witnesses
5 All. Jumma Shah & Ors. Vs. State of U.P.
1575
had reiterated the same facts that the
incident took place at about 6.00 p.m. in the
evening with regard to a petty issue of
removal of a barrier put by the accused
persons on the main pathway of the
deceased. Moreover, all the witnesses of
fact had assigned almost the same role to
the accused-appellants.

23. All the witnesses of fact were
cross-examined at length but the defence
could not elicit anything which could prove
the story wrong.

24. So far as the argument advanced
by the learned counsel for the defence with
regard to the fact that in case the
prosecution case is taken to be true at its
face value even then no case under Section
302 read with Section 34 IPC is made out is
concerned,
we
have
perused
the
postmortem report of the deceased and find
that as many as five injuries were found on
the body of the deceased, out of which,
injuries no. 3, 4 and 5 were on non vital
part of the body and the injuries no.1 and 2
were caused on the head of the deceased,
hence these facts goes to show that the
incident took place and during scuffle with
the deceased, accused persons had caused
injuries with lathi and danda on the person
of the deceased.

25. In the present case, the question
whether the appellants could be said to
have caused the injuries with intention of
causing death of the deceased is concerned,
admittedly, from the evidence adduced by
the prosecution, it came into light that the
incident had taken place on the spur of
moment and in heat of passion upon a
sudden quarrel, therefore, it can not be said
that the appellants have pre-motivated or
premeditation of mind to cause injuries to
the deceased.

26. In the postmortem report no
fracture has been found on the body and
head of the deceased, which indicates that
the appellants had no intention to cause
grievous injuries or to kill the deceased.

Knowledge and intention of a
person is a mental state and the direct
evidence for the same is not possible, it can
only
be
gathered
by
the
attending
circumstances
like
weapon
used,
commission of crime, manner of assault,
nature and number of injuries. These are
the factors, which will have to be
considered to justify the intention and
knowledge.

27. In the case of Gurmukh Singh Vs.
State of Haryana (2009) 15 Supreme
Court Cases 635, the Hon'ble Supreme
Court held that there are some facts which
are required to be taken into consideration
before awarding appropriate sentence to the
accused. These facts are only illustrative in
character and not exhaustive. Each case has
to be seen from its special perspective. The
relevant facts are as under : -

(a) Motive or previous enmity;

(b) Whether the incident had
taken place on the spur of the moment;

(c) The intention/knowledge of the
accused while inflicting the blow or injury;

(d) Whether the death ensued
instantaneously or the victim died after
several days;

(e) The gravity, dimension and
nature of injury;

(1) The age and general health
condition of the accused;

(g) Whether the injury was caused
without premeditation in a sudden fight;

(h) The nature and size of weapon
used for inflicting the injury and the force
with which the blow was inflicted;
1576 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) The criminal background and
adverse history of the accused;

(Whether the injury inflicted was
not sufficient in the ordinary course of
nature to cause death but the death was
because of shock;

(k) Number of other criminal
cases pending against the accused;

(1) Incident occurred within the
family members or close relations;

(m) The conduct and behaviour of
the accused after the Incident. Whether the
accused had taken the injured/the deceased
to the hospital immediately to ensure that
he/she gets proper medical treatment?

28. In the case of Pappu Vs. State of
M.P. (2006) 7 SCC 391, the Apex Court in
paragraph nos. 13, 14 and 15 held as under
:-

"13.... The help of Exception 4
can be invoked if death is caused (a)
without premeditation; (b) in a sudden
fight; (c) without the offender's 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 have 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
cruel or unusual manner. The expression
'undue advantage' as used in the provision
means 'unfair advantage".

14. It cannot be laid down as a
rule of universal application that whenever
one blow is given, Section 302 IPC is ruled
out. It would depend upon the weapon
used, the size of it in some cases, force with
which the blow was given, part of the body
on which it was given and several such
relevant factors.

15.
Considering
the
factual
background of the case at hand it will be
appropriate to convict the appellant under
Section 304 Part II IPC, instead of Section 302
IPC as has been done by the trial court and
affirmed by the High Court. Custodial sentence
of eight years would meet the ends of justice."

29.
In
the
case
of
Pulicherla
Nagaraju @ Nagaraja Reddy (2006) 11
SCC 444 : (2007) 1 SCC (Cri) 500, the
Apex Court has opined that the court
should proceed to decide the pivotal
question of intention, with care and
caution, as that will decide whether the
case falls under Section 302 or 304 Part 1
or 304 Part II. In many petty or
insignificant matters, plucking of a fruit,
straying of cattle, quarrel of children,
utterance of a rude word or even an
objectionable
glance,may
lead
to
altercations and group clashes culminating
in deaths. Usual motives like revenge,
greed jealously or suspicion may be totally
absent in such cases. There may be no
intention. There may be no premeditation.

30. On going through the entire
evidence on record, we find that the
5 All. Jumma Shah & Ors. Vs. State of U.P.
1577
necessary
ingredients
to
attract
4th
Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there existed
no pre-meditation; it was a sudden fight;
the offender has not taken undue advantage
or acted in a cruel or unusual manner,
therefore, the case in hand clearly falls
under fourth exception to section 300 IPC.

31. In the case of Jugut Ram Vs.
State of Chhattisgarh (2020) 9 Supreme
Court Cases 520, the Hon'ble Apex Court
modified/altered the charges from Section
302 IPC to 304-II IPC. In that case also the
weapon lathi was used and the case was of
sudden provocation. In the said case two
injuries were found on the head of the
deceased caused by lalthi blow and in the
instant case also two injuries were found on
the head of the deceased caused by lathi,
therefore, we are of the definite opinion
that in the instant case the conviction of the
appellants could be altered from Section
302 read with Section 34 IPC to 304-II
IPC.

32. In the case in hand, it is
abundantly clear that there was no
prearranged plan or that the incident had
taken place in furtherance of the premeditated intention of the accused persons.
When all these facts and circumstances are
taken into consideration and in their proper
perspective, then it becomes difficult to
maintain the conviction of the appellant
under Section 302 read with section 34
IPC.

Section 304 IPC reads as under:

"304. Punishment for culpable
homicide not amounting to murder.

Whoever
commits
culpable
homicide not amounting to murder, shall be
punished with Imprisonment for life, or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death;

or with imprisonment of either
description for a term which may extend
to ten years, or with fine, or with both, if
the act is done with the knowledge that it
is likely to cause death, but without any
intention to cause death, or to cause
such bodily injury as is likely to cause
death."

33. After evaluating the evidence
adduced by the prosecution, role attributed
to the appellants, the nature of injuries
caused on the person of the deceased and
considering the case law cited hereinabove,
this Court is of the considered view that it
is true that the incident took place but there
was no premeditation of mind, the incident
took place at the spur of moment, hence it
cannot be said that the accused appellants
have committed the murder of the deceased
having intention that the injuries caused to
the deceased would be fatal, in such
circumstances, the case would not travel
beyond Section 304-II IPC.

34. In the present case, the act of
appellants are not pre-meditated or premotivated, but is a result of sudden fight
and quarrel in the heat of passion.
Therefore, the finding of guilt recorded by
the trial court under Section 302 read with
Section 34 IPC deserves to be converted
into Section 304-II IPC, therefore, it can be
said that though the appellants had
knowledge that such an act can result in the
death of deceased, but there was no
intention to kill the deceased.
1578 INDIAN LAW REPORTS ALLAHABAD SERIES

35. In view of above discussions, we
alter/modify
the
conviction
of
the
appellants under Sections 302 read with
Section 34 IPC to Section 304-II IPC.
Further the conviction of the appellants
under Section 323 read with Section 34 IPC
is hereby affirmed.

36. Accordingly, the appeal is partly
allowed. The conviction and sentence of
the appellants is altered/modified from
Section 302 read with Section 34 IPC to
Section 304-II IPC. The appellants are
hereby convicted under Section 304-II IPC
and sentenced to undergo seven years
imprisonment and with fine of Rs.10,000/-
each.
All
the
sentences
shall
run
concurrently. The period already undergone
by the appellants shall be adjusted. After
completion of the sentence as has been
modified/altered
by
this
Court,
the
appellants shall be released, if they are not
wanted in any other case.
----------
(2025) 5 ILRA 1578
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.05.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Criminal Misc. Writ Petition No. 2588 of 2023

Kodai ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Durga Prasad

Counsel for the Respondents:
G.A., Alok Singh Chauhan, Anil Kumar, Dr.
Surendra Singh Chauhan

Criminal Procedure Code, 1973 - Sections
256 & 302 - Death of complainant during
pendency of complaint case - Whether
complaint abates - Legal representative
on basis of Will - Permissibility to
continue prosecution - Held, death of
complainant does not ipso facto terminate
prosecution - Magistrate may, under
Section 302 Cr.P.C., permit any person
including legal heir or legatee to continue
proceedings - No abatement of inquiry or
trial on complainant's death - Heir by Will
entitled to pursue complaint - Petition
dismissed. (Paras 9, 11, 12, 13, 15 and 18)

HELD:
Section 256(1) Cr.P.C. provides that if the
summons have been issued on complaint, and
on the day appointed for appearance of the
accused, or any day subsequent thereto, the
complainant does not appear, the Magistrate
shall acquit the accused, unless for some
reason, he thinks it proper to adjourn the
hearing of the case to some other day; Provided
that where the complainant is represented by a
pleader, or by the Officer conducting the
prosecution, or where the Magistrate is of the
opinion that the personal attendance of the
complainant is not necessary, the Magistrate
may dispense with his attendance and proceed
with the case. It has been provided in
subsection (2) of Section 256 that the provisions
of sub Section (1) of Section 256 shall, so far as
may be, apply also to cases where the nonappearance of the complainant is due to his
death. (Para 9)

In view of above, on the death of the
complainant, the criminal prosecution does not
put to end and the prosecution can be permitted
to be continued by the Magistrate, before whom
the proceedings are pending and it may be
permitted to be continued through Advocate
General or Government Advocate or a Public
Prosecutor or Assistant Public Prosecutor as
there is no provision of abatement of inquiry
and trial in absence of the complainant, whereas
the provision has been made for abatement of
appeal or trial on the death of the accused. It is
for this reason, it does not provide abatement of
the proceedings on death of the complainant,
rather if the complainant does not appear, the
Magistrate shall acquit the accused unless for
some reason he thinks it proper to adjourn the
hearing of the case to some other date;