# Kali Prasad Misra & Anr v. State of U.P

- **Citation:** (2023) 10 ILRA 112
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-13
- **Case number:** J. Criminal Appeal No. 1483 of 1984
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-prasad-misra-anr-v-state-of-u-p-49265
- **Pages:** 29

## Headnote

Criminal Law -Indian Penal Code, 1860 -
Sections 299, 300, 302/34, 304 Part II -
The incident arose from a family dispute over a
jointly owned grove, where the appellants, Kali
Prasad Misra (aged 19) and Sheo Shankar Misra
(aged 22, deceased during appeal), nephews of
the deceased, requested him to attend a
panchayat. On his refusal, a sudden quarrel led
to the appellants striking the deceased with
lathis, causing fatal head injuries. The High
Court found no premeditation or intent to kill, as
the assault occurred in the heat of passion
during a brief altercation (lasting two minutes).
Relying on Virsa Singh, Anbazhagan, and Jugut
Ram, the court held that the appellants' actions
fell under Exception 4 to Section 300 IPC, as the
lathi blows were not cruel or excessive, and the
appellants did not take undue advantage.
Conviction under Section 302/34 IPC altered to
Section 304 Part II IPC for culpable homicide
not amounting to murder, as the appellants had
knowledge that their acts were likely to cause
death but lacked intent. Kali Prasad Misra
sentenced to 7 years' rigorous imprisonment
and a fine of Rs. 1 lakh, payable to the
deceased's wife or legal heir, with an additional
year of imprisonment on default. Appeal qua
Sheo Shankar Misra abated due to his death.
Bail of Kali Prasad Misra cancelled, and he was
ordered
into
custody.
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
113
Appeal partly allowed.

Case Law Cited:

## Text

_Characters 0–39,985 of 99,921. This is a partial read: ask again with offset=39985 for what follows._

112 INDIAN LAW REPORTS ALLAHABAD SERIES
abuse of liberty of bail and pass orders in
accordance with law.

(v) The appellant shall remain
present before the trial court on each date
fixed, either personally or through his
counsel. In case of his absence, the trial
court may proceed against him under
Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses
the liberty of bail during trial, in order to
secure his presence, proclamation under
section 82 Cr.P.C. is issued and the
appellant fails to appear before the court on
the date fixed in such proclamation, then,
the trial court shall initiate proceedings
against him, in accordance with law, under
Section 174-A of the Indian Penal Code.

(vii) The appellant shall remain
present, before the trial court on the dates
fixed for (i) opening of the case, (ii)
framing of charge and (iii) recording of
statement under Section 313 Cr.P.C. If in
the opinion of the trial court absence of the
appellant is deliberate or without sufficient
cause, then it shall be open for the trial
court to treat such default as abuse of
liberty of bail and proceed against him in
accordance with law.

18. The trial court is also directed to
expedite the trial of the aforesaid case by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.

19.

The
observation
made
hereinabove are confined only to disposal
of this bail-application and have nothing to
do with the merits of the case.
----------
(2023) 10 ILRA 112
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2023
BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA,
J.

Criminal Appeal No. 1483 of 1984

Kali Prasad Misra & Anr. ..Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Satish Trivedi, Sri Manoj Kumar Singh,
Sri P.K. Singh

Counsel for the Respondent:
G.A., Sri Saurabh Chaturvedi, Sri Amresh
Singh, Sri I.K. Chaturvedi (Sr. Advocate).

Criminal Law -Indian Penal Code, 1860 -
Sections 299, 300, 302/34, 304 Part II -
The incident arose from a family dispute over a
jointly owned grove, where the appellants, Kali
Prasad Misra (aged 19) and Sheo Shankar Misra
(aged 22, deceased during appeal), nephews of
the deceased, requested him to attend a
panchayat. On his refusal, a sudden quarrel led
to the appellants striking the deceased with
lathis, causing fatal head injuries. The High
Court found no premeditation or intent to kill, as
the assault occurred in the heat of passion
during a brief altercation (lasting two minutes).
Relying on Virsa Singh, Anbazhagan, and Jugut
Ram, the court held that the appellants' actions
fell under Exception 4 to Section 300 IPC, as the
lathi blows were not cruel or excessive, and the
appellants did not take undue advantage.
Conviction under Section 302/34 IPC altered to
Section 304 Part II IPC for culpable homicide
not amounting to murder, as the appellants had
knowledge that their acts were likely to cause
death but lacked intent. Kali Prasad Misra
sentenced to 7 years' rigorous imprisonment
and a fine of Rs. 1 lakh, payable to the
deceased's wife or legal heir, with an additional
year of imprisonment on default. Appeal qua
Sheo Shankar Misra abated due to his death.
Bail of Kali Prasad Misra cancelled, and he was
ordered
into
custody.
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
113
Appeal partly allowed.

Case Law Cited:

1. Virsa Singh Vs St. of Pun., AIR 1958 SC 465
(Para 20)

2. Anda Vs St. of Raj., AIR 1966 SC 148 (Para
21)

3. Chmaru Budhwa Vs St. of M.P., AIR 1954 SC
652 (Para 27)

4. Inder Singh Bagga Singh Vs St. of Pepsu, AIR
1955 SC 439 (Para 28)

5. Kapoor Singh Vs St. of Pepsu, AIR 1956 SC
654 (Para 29)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Shri PK Singh, learned
counsel for the accused appellant No.1,
Shri I.K. Chaturvedi, learned Senior
Advocate assisted by Shri Amresh Singh
and Shri Saurabh Chaturvedi, learned
counsel for the informant and Shri K.P.
Pathak, learned A.G.A. for the State.

2. There are two appellants in this
appeal. Appellant no.2 Sheo Shanker Misra
has died and the appeal qua the accused
appellant no.2 Sheo Shanker Misra has
been abated by order dated 30.08.2018.
Thus, the appeal now survives only for
accused appellant no.1 Kali Prasad Misra.

Facts:-

3. Briefly stated facts of the present
case are that the informant eyewitness PW1, Smt. Ram Adhari Devi wife of the
deceased Hinch Narayan Mishra, resident
of village Pure Khudi, P.S. Handiya,
District
Allahabad
lodged
a
first
information report (Chik No.162) on
23.5.1980 at about 05:00 a.m. with
respect to an incident dated 22.05.1980 of
about 06:00 p.m. being Case Crime
No.186/10/1980 under Section 304 IPC
alleging that her Devar Lakh Narayan
Mishra and two nephews namely Kali
Prasad and Sheo Sankar, both sons of Ram
Lakhan came to call her husband for
panchayat in the family dispute but her
husband refused to go in panchayat and
there upon all the aforesaid three accused
persons started abusing and the accused
persons Kali Prasad and Sheo Sankar
beaten her deceased husband with their
lathis on the pointing out of the accused
Lakh Narayan Mishra to assault. Her
husband fell and thereafter the accused
persons fled away abusing. She took her
husband and laid him in a cot at the house
of the door and called Dr. Hari Vishal
Singh who gave treatment but her husband
died at about 10:00 p.m. When the PW-3
Mahendra Narayan Mishra, who is sister's
son of the informant; came at about 02:00
a.m. in the night, she went to lodge the FIR
at the police station and accordingly the
FIR was registered at 05:00 a.m. on the
next
day,
i.e.
on
23.05.1980.
The
investigating officer came on the spot and
prepared two recovery memos both dated
23.05.1980, which includes the recovery
memo of taking sample of plain earth and
blood stains from the spot of incident.
Inquest report was prepared on 23.05.1980.
In the inquest report, the Panches had
opined that the deceased Hinch Narayan
Mishra has died due to injuries caused on
the head. The body of the deceased was
sent for autopsy. As per postmortem report,
following injuries were found on the body
of the deceased Hinch Narayan Mishra:-

"(1) Contusion 2" x 3/2" over the
nasal bridge and below the left eye with
fracture of nasal bone.
114 INDIAN LAW REPORTS ALLAHABAD SERIES

(2) Lacerated wound transversely
directed, 2" x 1/2" on the middle of skull, 8"
above the root of the nose.

(3) Contusion obliquely directed
2" x 1" over the scalp, 1" towards right of
Injury No. 2.

(4) Depressed fractured scalp,
1,1/2" x 1" with fracture of left parietal
bone which was 4" above the right ear.

(5) On the opening of antemortem injury No. 4, plenty of denatured
blood came out.

(6) Contusion 2" x 2" over the
right fore-erm.

(7) Contusion 2" x 2" over the
right palm.

(8) Contusion 2" x 1,1/2" over the
outer and lower aspect of left leg, 4" above
the ankle joint."

4. The chargesheet dated 05.07.1980
was submitted by the police against all the
aforesaid three accused persons under
Section 304 I.P.C. The Vth Additional
Session Judge, Allahabad framed the
charges on 06.05.1982 under Section
302/34 I.P.C. against all the three accused
persons and in alternative under Section
304/34 I.P.C.

5. The prosecution examined seven
witnesses, namely informant eyewitness
PW-1, Smt. Ram Adhari Devi (wife of
the deceased), eyewitness PW-2, Smt.
Saraswati Devi (daughter-in-law of the
deceased),
PW3
Mahendra
Narayan
Mishra, PW-4 Shyama Prasad Dubey -
constable who carried the dead body of the
deceased for postmortem, PW-5 Dr. Nisar
Ahmed - Medical Officer who conducted
autopsy on the body of the deceased, Ram
Ji Mishra - PW-6 - head constable who
registered the FIR and PW-7 Sarvadin
Pandey
-
Investigating
Officer
who
conducted the investigation of the case. The
accused persons were examined under
Section 313 Cr.P.C. The defence examined
DW-1, Dr. Hari Vishal Singh, who as per
first information report, gave treatment to
the deceased after the deceased received
injuries.

6. As per postmortem report and
the ocular evidence of P.W.-5 (doctor),
the deceased was a man of good built
aged about 50 years. The age of accused
appellant No.1 Kali Prasad and accused
appellant No.2 Sheo Shankar have been
mentioned in their statements under
Section 313 Cr.P.C. to be 19 years and 22
years respectively. Sheo Shankar was a
student of B.A. Part-I. Thus, both the
accused persons were of very young age
at the time of the incident.

7. The Session Trial No.459/1981
(State versus Lakh Narayan Mishra, Kali
Prasad Mishra and Sheo Shankar Mishra)
was concluded and the impugned judgment
and order dated 22.05.1984 was passed by
the
Vth
Additional
Session
Judge,
Allahabad
acquitting
Lakh
Narayan
Mishra
but
convicting
the
accused
appellant No.1 Kali Prasad Mishra and
accused appellant No.2 Sheo Shankar
Mishra under Section 302/34 I.P.C. and
sentenced them for life imprisonment.
Aggrieved with the aforesaid judgment of
the session court, the accused appellants
have filed the present appeal. The accused
appellant No.2 Sheo Shankar Mishra has
died and consequently the appeal qua
him was abated by order of this court
dated 30.08.2018. Thus, the present
appeal now survives only for the accused
appellant No.1 Kali Prasad Mishra.

Submissions
on
behalf
of
the
accused appellants:-
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
115

8. Learned counsel for accused
appellants submits as under:-

(A) As per own evidence of
prosecution, intention to cause death is not
established as is evident from the following
evidences of the prosecution:-

(i) From bare reading of the first
information report, the testimony of eyewitness PW-1 and eye-witness PW-2, it is
evident that the deceased Hinch Narayan
Misra is the real uncle of the accused
persons, Kali Prasad Misra and Sheo
Shanker Misra and the real brother of
accused Lakh Narayan.

(ii) There was some dispute
between brothers of the deceased relating
to a grove.

(iii) The accused appellants came
to call the deceased for Panchayat. The
deceased refused to go and participate in
Panchayat as he apprehended that some
dispute may arise in Panchayat.

(iv)
On
refusal
to
go
in
Panchayat, some abusive languages were
used by the accused persons against the
deceased and the deceased who was sitting
on the south side of the well on the 'Jagat'
came down and went to the west of the
well.

(v) The accused appellant no.1
Kali Prasad Misra gave the first and the
only blow of Lathi on the head of the
deceased and accused appellant no.2 gave
the second blow of Lathi near the nasal
bone of the deceased. Thereafter, only the
accused appellant no.2 Sheo Shanker Misra
gave blows of Lathi to the deceased on
forearm, palm and leg causing injury nos.6,
7 and 8.

(vi) The injury nos.3 and 4 were
the result of blow of Lathi caused by the
accused appellant no.1 Kali Prasad Misra
and the injury nos.1 and 2 were the result
of Lathi blow caused by the accused
appellant no.2 Sheo Shanker Misra.

(B) The entire story of the
prosecution is false inasmuch as the
deceased while returning in the night at
about 10:00-11:00 p.m. from somewhere
has received injury and was brought by
someone to home but to implicate falsely
the accused appellant, the P.W. 1 lodged the
first information report on account of
dispute.

(C) Even if the prosecution story
is taken to be correct, the accused
appellants cannot be said to be guilty of
commission of offence under Section 302
I.P.C., since as per own evidences of the
prosecution, intention to kill the deceased
was
neither
alleged
nor
established.
Therefore, as per own evidence of the
prosecution, the accused appellants could
have been convicted only under Section
304 Part II I.P.C. and not under Section 302
I.P.C., inasmuch as, the injury caused, as
per own evidence of the prosecution; was
without any intention to cause death.
Premeditated mind of the accused to cause
murder of the deceased, has neither been
alleged nor established by the prosecution.
Therefore, at best, as per own case and
evidences of the prosecution; the accused
appellants could have been convicted and
sentenced only under Section 304 Part II
I.P.C. The first information report itself was
lodged under Section 304 I.P.C., charge
sheet was filed under Section 304 I.P.C. but
the charges were also framed under Section
304 I.P.C. and in alternative under Section
302/34 I.P.C.

(D) Thus, the learned trial court
has committed manifest error of law and
fact to convict and sentence accused
appellants under Section 302/34 I.P.C.,
whereas, as per own evidence of the
prosecution, at best, the accused appellants
116 INDIAN LAW REPORTS ALLAHABAD SERIES
could have been convicted and sentenced
only under Section 304 Part II I.P.C.

(E) The death of the deceased
was caused not on account of Lathi blows
but on account of excessive bleeding as no
arrangement for medical treatment of the
deceased was made by the PW-1 and PW-2
since the time of the incident till he died in
the midnight. Thus, the deceased was
kept without proper medical aid for more
than four hours which caused his death
on account of excessive bleeding. If
treatment would have been given, these
injuries would not have resulted to the
death of the deceased.

(F) Reliance is placed upon the
judgment of Hon'ble Supreme Court in
Anbazhagan Vs. State [2023 5 Supreme
266 (Para 20 to 37, 60, 62 & 63]

Submissions on behalf of the
informant:-

9. Sri I.K. Chaturvedi, learned
Senior Advocate submits as under:-

(i) The prosecution witnesses
are totally consistent to the effect that the
accused
appellants
have
killed
the
deceased with clear intention and with
premeditated plan to kill the deceased.
Thus,
the
accused
appellants
have
committed murder of the deceased and
therefore, they have been lawfully and
correctly convicted under Section 302
I.P.C.
and
sentenced
with
life
imprisonment.

(ii) The submissions advanced
on behalf of the accused appellants is
misinterpretation of Section 304 I.P.C.,
inasmuch as, the act of the accused
persons was clearly covered by Section
300 I.P.C. and the prosecution has fully
established that the accused appellants
have committed murder of the deceased.

(iii) The accused appellants
came on the spot armed with lathis with
premeditated mind to cause murder of the
deceased Hinch Narayan Mishra. Coming
armed with lathis itself shows that the
accused appellants came on the spot with
premeditated mind to kill the deceased
otherwise there was no occasion for them
to come armed with lathis to call their
real
uncle
i.e.
the
deceased,
for
panchayat.

(iv)
The
evidence
of
eyewitnesses PW-1 and PW-2 clearly
proves that the accused persons came with
common intention and object to kill the
deceased and therefore Section 34 IPC has
been rightly applied by the learned trial
court.

(v) The accused appellant No.1
with intention to kill the deceased and with
knowledge that the injury being caused by
him is sufficient to cause death of the
deceased, has given first blow of lathi on
vital part of the body i.e. on the head,
which resulted in depressed fractured scalp
with fracture left parietal bone and
lacerated wound transversely directed on
the middle of the skull. It was a deadly
injury by which death was bound to be
caused. Therefore, it was a clear case of
murder as defined under Section 300 I.P.C.
and consequently the accused appellants
have been lawfully and correctly convicted
under Section 302 I.P.C. The accused
appellant No.2 has also given blow of lathi
which resulted in contusion over the nasal
bridge and below the left eye with the
fracture of nasal bone and contusion
obliquely
directed
over
the
scalp.
Thereafter they gave repeated blows of
lathi causing injury Nos.5, 6, 7 and 8. This
leaves no manner of doubt that the manner
in which the accused appellants given
repeated blows of lathi to kill the deceased,
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
117
does not fall under any of the exceptions of
Section 300 I.P.C., therefore, the death of
the deceased caused by the accused
appellants is not culpable homicide not
amounting to murder under Section 304
I.P.C. The manner in which the accused
appellants treated the deceased was cruel.

Submissions on behalf of State:-

10. Learned A.G.A. submits that he
adopts the aforenoted arguments advanced
by Sri I.K. Chaturvedi, learned Senior
Advocate for the informant.

Submissions
on
behalf
of
the
accused appellant No.1 in rejoinder:-

11. Sri P. K. Singh, learned counsel
for accused appellant No.1 submits in
rejoinder as under:

(i) Bare perusal of the first
information report and the evidence of PW1 and PW-2 clearly established that it was
merely at the heat of the passion that some
scuffle took place without any intention or
premeditated
mind
of
the
accused
appellants to kill the deceased. The accused
appellants have not murdered the deceased
and as per evidence of eyewitnesses, no
inference of any intention to kill or
common intention and common object or
premeditated mind can be drawn.

(ii) The accused appellant No.1,
as per the prosecution story and evidence of
eyewitnesses, has given only one blow of
Lathi, therefore, there was neither any
element of cruelty nor any intention to kill
the deceased. The deceased died for reason
that when the deceased received some
injuries at some place in the night at about
10:00-11:00 p.m. he was brought by
someone to his house where the informant
PW-1 has not made any arrangement for
appropriate treatment of the deceased.
Since the deceased could not get any
medical treatment, therefore, he died due to
excessive bleeding but the PW-1 has falsely
implicated the accused appellants.

Discussion and findings:-

12. We have carefully considered the
submissions of the learned counsels for the
parties and perused the trial court record.

Whether the accused appellants
have killed the deceased?:-

13. The deceased Hinch Narayan
Mishra, the accused Lakh Narayan Mishra,
the accused Kali Prasad Mishra and the
accused Shiv Sankar Mishra, all are family
members. The acquitted accused Lakh
Narayan Mishra is the real brother of the
deceased. The accused appellant No.1 and
the accused appellant No.2 are the sons of
real brother of the deceased. As per site
plan, the house of the deceased and the
acquitted accused Lakh Narayan Mishra are
adjoining, whereas the house of both the
accused appellants is very near towards
north side of the house of the deceased. The
deceased was also having a house adjacent
to his first house. In between the house of
the deceased and the house of the accused
appellants, there is a well and a neem tree.
As per first information report, the
deceased was sitting on the platform wall
of the well at the time of incident. As per
F.I.R., the accused appellants along with
the acquitted accused came at about 06:00
p.m. to call the deceased to come for
panchayat in the family dispute matter and
when the deceased refused to go in
panchayat, then the accused appellants
started abusing and on the pointing out of
the acquitted accused Lakh Narayan
Mishra, they gave lathi blows on the
118 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased who fell on the ground on account
of injuries and thereafter died at about
10:00 p.m. In her evidence, the informant
eyewitness PW-1 has proved the first
information report and the manner in which
the accused appellants have given lathi
blows to the deceased resulting in his
death. She offered a natural explanation
that in her cross-examination for the delay
in lodging the report that she had seen
ghastly
occurrence
and
when
PW-3
Mahendra Narayan Mishra, (her sister's
son) arrived late in the night, then she went
to lodge the first information report. It is
undisputed that metalled road was about 34 km away from the place of occurrence
and she being an illiterate village lady,
could not courage to go to police station to
lodge FIR in the late night passing through
lonely place. Thus, the delay in lodging
FIR has been fully explained.

14. The evidence of the informant
eyewitness PW-1 and the eyewitness PW-2
are totally consistent and also corroborate
with the first information report as to the
date, time and place of the incident. The
presence of PW-1 at the place of incident is
quite natural inasmuch as the incident took
place outside her dwelling house. The
ocular evidence of eyewitness PW-1 and
PW-2 as to the injuries caused by the
accused appellants is also totally consistent
with the first information report and
medical evidences i.e. the postmortem
report and the evidence of PW-5, the doctor
who conducted the autopsy. The Chik FIR
has been proved by the PW-6 Ram Ji
Mishra, head constable. The samples of
plain earth and blood stains taken by the
Investigating Officer PW-7 from the place
of occurrence vide recovery memo dated
23.05.1980 has been proved by the PW-7
who also proved the site plan prepared on
the spot and the inquest report. The injuries
found on the body of the deceased as
mentioned in the postmortem report has
been proved by the PW-5 Dr. Nisar Ahmed,
Medical Officer who conducted autopsy on
the body of the deceased. The injuries as
mentioned in the postmortem report and
proved by the PW-5 in his ocular evidence,
corroborate with the first information report
and the evidence of eyewitnesses PW-1 and
PW-2 as well as the inquest report. The
PW-5 has also opined that the cause of
death is excessive bleeding and shock and
all the injuries were possible by Lathi and
the injury Nos.1 to 4 were ordinarily
sufficient to cause death. Thus, the date,
time and place of incident, the presence of
the accused appellant at the place of
incident and the injuries caused by them to
the deceased resulting in the death of the
deceased have been successfully proved by
the prosecution beyond a reasonable doubt.

15. Now, the question that arises out
of submissions of learned counsels for the
parties as aforenoted is as to whether the
accused persons acted with common
intention and common object with
premeditated mind to kill the deceased
resulting in murder as defined under
Section 300 IPC and are liable for
punishment under Section 300 to IPC, or
the assault was at the heat of passion
without any motive or intention to cause
death of the deceased?

Whether the accused are guilty
of offence of murder as defined under
Section 300 IPC liable to punishment
under Section 302/34 I.P.C. OR the death
caused
was culpable
homicide
not
amounting to murder under Section 304
I.P.C.:-

16. Before we proceed to examine
this aspect, it would be beneficial to
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
119
reproduce relevant portion of the first
information
report,
the
evidence
of
informant
eyewitness
PW-1
and
the
evidence of eyewitness PW-2 as under:-

"Relevant
portion
of
first
information report 23.05.1980:-

मेरे देवर श्री लाख नारायण पुत्र श्री उमादत्त एंव मेरे
देवर श्री राम लखन के लड़के काली प्रसाद एंव शिविंकर घरेलू
झगडे के विषय में पंचायत करने के वलये बुलाने आये वकन्तु
झगडे के भय से मेरे पवत ने पंचायत में जाने से इन्कार वकया
इस पर उपयुुक्त तीनों व्यवक्तयों ने गाली गलौज शुरू कर विया
वक काली प्रसाि एंि वशि शंकर ने अपनी लावियों से लाख
नारायण के इशारे पर मेरे पवत को मारा। मेरे पशि चोट खाकर
वही शिर िये। िांव के भी कुछ लोि मौके पर आ िये थे। मैनें िथा
मेरी बहुओ ने रोकना चाहा शकन्िु वे लोि िाली देिे चले िये। अपने
पशि को उठाकर मैं िथा बहुओ ने अपने दरवाजे पर लाकर रखा।

Relevant portion of evidences of
informant eyewitness PW-1 (examinationin-chief):

2- शहन्द नरायण मेरे पशि थे। घटना के पविले मेरे
पवत और रामलखन ने एक बाग साझे में खरीिा था। राम लखन
भी मेरे देवर है। वबना बटिारा के मुवजजमान काली प्रसाि ि
वशिशंकर उसमें नींि खोिने लगे। मेरे पवत मना वकये थे उसके
बारे में गांि में पंचायत िोने की बात चल रिी थी।

3- उस नींव खोदने के दस शदन बाद और आज से
िीन साल पांच मविना पविले शाम के छः बजे का यह वाकया है।
मेरे पवत उस समय असविया- बाजार से घर आये थे। मैं ि मेरी
तीनों बि ंये जय िेिी, आशा िेिी ि सरस्िती िेिी िरिाजे में
बैिी थी। मेरे पशि कुंवा की जिि पर उस समय बैठ िये। वहां नीम
का पेड था छाया के शलये बैठे थी। मैनें उन्हें पानी व मीठा दे रखा
था। उसी समय लाख नरायण, काली प्रसाद व शिविंकर वहां आये।
िीनों लाशठयो शलये थे। ये लोि मेरे पशि क पास आये। इन लोगों ने
मेरे पवत को पंचायत में चलने को किा। मेरे पशि ने कहा शक इस
समय मैं पंचायत में निी आऊंगा। ये लोि कहे शक साले चलों।
उसी समय लाख नरायण ने किा वक मारो सालो को तब
काली प्रसाि ने लािी से मेरे पवत के वसर पर मारा। िूसरी लािी
वशिशंकर ने जब उनके नाक पर मारा िब मेरे पशि शिर िये।
वगरने पर भी वशि शंकर लावियों से मेरे पवत को मारता रिा।

5- पशि को हम लेकर उठाकर पशिम वाले ओसारे
के सामने चारपाई पर शलटा शदये थे। दौडधूप शकया िया। हरशवलास
व हरी िांव के डाक्टर आये थे। सुई लिाये थे व पट्टी बांधे थे। पशि
को कुछ भी फायदा नही हुआ। मेरे पवत िाक्या के चार घन्टे बाि
मर गये।

X X X X X X X X X

13- सशपथ प्रवत परीक्षा- 27.1.1984

जब बाग खरीिा गया तब मेरे पवत ि मुवजजमान
के वपता राम लखन अलग अलग थे। उस बैनामे में दोनों
आदशमयों ने पैसा लिाया व हरके का आधा आधा विस्सा था।
उस बिीचे में पेड थे वे भी शलखाये िये थे। घटना के 7-8 साल
पशहले यह बािीचा खरीदा िया था। िोनों आिमी बाग के कावबज
थे लेवकन बटिारा निी ि आ था। उस बाि में दस पेड महुवा थे
और पेड नही था। महुआ के पेडो का बटवारा नही हुआ था। महुवा
में फल आधा आधा बंट जािा था। और जमीन बिीचा के खाली
पडी थी। बवगचा में कुछ पविम ि कुछ पूरब खाली जमीन पडी
थी। खाली जमीन का कोई इस्तेमाल निी िोता था। िोनो पूरी
बाग का इस्तेमान करते थे। इसी बीच रामलखन ने बाि के उत्तरपशिम के कोने पर दालान व छुआ लिाकर बरामदा बना शलया था।
घटना के बाद िांव का आबादी छोडकर राम लखन का पररवार उस
दालान में आ िया।

14- मैने अपनी रपट में यह नही शलखाया था शक
शबना बटवारा के मुलशजमान काली प्रसाद व शिविंकर नींव खोदने
लिे व मेरे पशि मना शकये थे। बाि के शसलशसले में झिड़ा था व
पंचायि होने वाली थी वाली बाि अपनी रपट में शलखा शदया था।
मुलवजमान से बाग के अलािा घरेलू झगडा निीं था। मै नही
बिा सकिी शक बाि के बारे में पंचायि वाली बाि मेरी रपट में क्यों
नही शलखी िई है।

X X X X X X X X X

सशपथ प्रवत परीक्षा- dated 28.01.1984
:-

36- मैनें दरोिा को वह जिह शदखा शदया था जहां
से मैने घटना देखा था। उस समय दरवाजा पर मैं बहुओ के साथ
घन्टा दो घन्टे से बैठी थी। मेरे मकान का दरवाजा उत्तर िरफ खुलिा
है। दरवाजा के सामने ओसारा लिा है। घटना के समय मैं उसी
ओसारे में थी। कुंवा की जिि अन्दाजन पांच फीट ऊंची है। जिि के
ईन्टे सीमेन्ट से जुडे थे ऊपर प्लास्टर नही हुआ था। नीम का पेड
कुवा से एक बीत्ता या डेढ बीत्ता दशखन िरफ है। यह पेड अब भी
मौजूद है मेरे पशि कुंवा के दशखन िरफ बैठे थे वे पशिम मुॅ ह करके
बैठे थे। यह जिि दो हाथ चौडी थी। बात चीत िोने पर मेरे पवत
जगत के नीचे आ गये थे। मेरे पशि नीचे आ िये थे। मेरे पवत नीम
के पेड की तरफ निी गये बवजक कुंिा के पविम गये थे।

37- जब मेरे पशि जिि से पशिम िीन चार कदम
पर थे िभी मारपीट हुई थी। मेरे पवत को पिला लािी काली
प्रसाि मारे थे िब दूसरी लाठी शिविंकर मारे थे मैनें अपनी रपट व
बयान पुशलस में बिाया था शक शिरने के बाद भी मेरे पशि को
शिविंकर लाशठयो से मारे थे। मैं नही बिा सकिी शक मेरी रपट व
बयान पुशलस में यह बाि क्यों नही शलखी िई।
120 INDIAN LAW REPORTS ALLAHABAD SERIES

Relevant portion of evidence of
eyewitness PW-2 (examination-in-chief):-

3- उसी समय काली प्रसाद, शिविंकर व लाख
नरायण काली प्रसाद के घर मे से लाशठया लेकर मेरे ससुर के पास
आये। इनमें से काली प्रसाि ि वशिशंकर मेरे ससुर से किे वक
चलो िािा आज िमारा पंचायत िोगा। तब मेरे ससुर झगडे के डर
से पंचायत मे जाने से इंकार कर विये। इस पर काली प्रसाि ि
वशिशंकर बोले वक निी चलते िो तो चलो साले आज िमारा
तुम्िारा तो िो जायेगा। इस पर भी मेरे ससुर झिडे के डर से जाने से
इंकार कर शदये।

4- इस पर लाखनरायण ने ललकारते ि ये ईशारा
वकया वक आज निी चलते िै तो जान से मार िो साले को िम
िेख लेगे। इस पर काली प्रसाद शसर पर और शिविंकर बाई आंख के
नाक के उपर लाशठयों से मारे। मेरे ससुर शिय िये। उनके शिरने पर दोनों
ससुर को दो दो लाशठयां और मारे थे।

8- सन्ि लाल यादव से डा० हरर शवलास व डा० हरी
शसंह को बुलवाया िया। उसके बाद चोट के चार घन्टे िक मेरे ससुर
शजन्दा रहे। व राि दस बजे मर िये।

X X X X X X X X X

19- मैनें दरोिा को यह शदखा शदया था शक घटना व
समय मुलशजमान वहां से आये थे। दरोिा को वह भी बिा शदया था शक
मुलशजमान काली प्रसाद के घर से शनकले थे। मैनें दरोिा को यह भी
बिाया था शक काली प्रसाद व शिविंकर मेरे ससुर से कहे थे शक िािा
चलो आज िमारा पंचायत िोगा। मैनें दरोिा को यह भी बिाया था
शक ये लोि बोले शक निी चलते िो तो चलो साले आज िमारा
तुम्िारा तो िो जायेगा। मै नही बिा सकिा शक दरोिा ने मेरे बयान में
ये बािें क्यों नही शलखा है।

20- मुलवजमान से मेरे ससुर से ज्यािा से ज्यािा
िो वमनट बाते ि ई थी। कुवा के पूरब ज्यादा दूरी पर मुशजजमान की ही
चरही विैरह थी िीन चरफ चरही विैरह नहीं थी।

21- मुलवजमान जगत पर निी चिे थे मेरे ससुर
बातचीत के समय जगत से नीचे आ गये थे। मुशजजमान उनसे दो-
िीन कदम पर थे। मेरे ससुर जिि से पशिम उिरे थे। मेरी सास चार
कदम पर उठ कर वही खडी हो िई थी। "

17. From the relevant portion of the
first information report the evidence of
informant eyewitness PW-1 (wife of the
deceased)
and
the
eyewitness
PW-2
(daughter-in-law of the deceased), the
following facts emerge:

(a) The accused persons and the
deceased all are family members.

(b) The accused persons and the
deceased were having their houses close to
each other.

(c) The deceased and the father of
the accused appellant have jointly purchased
a grove which was not partitioned but on
north-west portion of the open land of the
grove the father of the accused appellants had
constructed veranda due to which dispute
arose and a panchayat was convened in that
matter. Except the grove, there was no
family dispute between the deceased and
the accused appellants.

(d) The accused appellants
came to call the deceased to come in
panchayat
and
using
polite
words
"DADA CHALO" requested him to
participate in panchayat but the deceased
refused to go.

(e) The accused appellants had
not climbed on the jagat of the well
where the deceased was sitting rather the
deceased came down to the accused
persons during oral altercation between
them.

(f)
Thereafter
the
accused
appellant No.1 gave one lathi blow on the
skull of the deceased and the accused
appellant No.2 gave one lathi blow on the
nasal bone of the deceased and thereafter
when the deceased fell down, only the
accused appellant No.2 Sheo Shankar gave
some lathi blows to the deceased on arm
and leg.

(g) The accused appellant Nos.1
and 2 gave lathi blows on the pointing out
of the acquitted accused/ brother of the
deceased namely Sri Lakh Narayan Mishra.

(h) The duration of the entire
episode was only two minutes as per
evidence of P.W.-2.
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
121

18. Before we proceed to examine as
to whether the death of the deceased caused
by the accused appellant Nos.1 and 2 is the
murder as defined under Section 300 IPC
liable to punishment under Section 302 or
it is a culpable homicide not amounting to
murder under Section 304 IPC, it would be
appropriate
to
examine
the
relevant
provisions and the law settled on the point.

What is murder:-

19.

Section
299
IPC
defines
"culpable homicide", Section 300 defines
"murder" carving out five Exceptions and
Section 304 provides for "punishment for
culpable homicide not amounting to
murder," as under:-

"299.
Culpable
homicide.-
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.

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
homicide is not murder if the offender,
whilst deprived of the power of self-control
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,
122 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

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."

20. In Virsa Singh Vs State of
Punjab A.I.R 1958 SC 465 Hon'ble
Supreme Court laid down four elements to
establish that an offence is a murder under
Section 300 "thirdly" as under:-

"12. To put it shortly, the
prosecution must prove the following facts
before it can bring a case unders.
300,3rdly" ;

First, it must establish, quite
objectively, that a bodily injury is present ;

Secondly, the nature of the injury
must be proved; These are purely objective
investigations.

Thirdly, it must be proved that
there was an intention to inflict that
particular bodily injury, that is to say, that
it was not accidental or unintentional, or
that some other kind of injury was
intended.

Once these three elements are
proved to be present, the enquiry proceeds
further and,

Fourthly, it must be proved that
the injury of the type just described made
up of the three elements set out above is
sufficient to cause death in the ordinary
course of nature. This part of the enquiry
is purely objective and inferential and has
nothing to do with the intention of the
offender."
(Emphasis supplied by us)

21. In Anda and others vs. State of
Rajasthan A.I.R. 1966 SC 148, (Four
judges bench) (Paras 10, 11 and 20, 1965
SCC Online SC 46) Hon'ble Supreme
Court explained Section 300 "thirdly" and
laid down the law that the third clause
views the matter from a general stand
point. It speaks of an intention to cause
bodily injury which is sufficient in the
ordinary course of nature to cause death.
The emphasis here is on the sufficiency of
the injury in the ordinary course of nature
to cause death. The sufficiency is the high
probability of death in the ordinary way of
nature and when this exists and death
ensues and the causing of such injury is
intended the offence is murder. Sometimes
10 All. Kali Prasad Misra & Anr. Vs. State of U.P.
123
the
nature
of
the
weapon
used,
sometimes the part of the body on which
the injury is caused, and sometimes both
are relevant. The determinant factor is
the intentional injury which must be
sufficient to cause death in the ordinary
course of nature. If the intended injury
cannot be said to be sufficient in the
ordinary course of nature to cause death,
that is to say, the probability of death is
not so high, the offence does not fall
within 'murder' but within culpable
homicide not amounting to murder or
something less. The sufficiency of an
intentional injury to cause death in the
ordinary way of nature is the gist of the
clause irrespective of an intention to cause
death. Here again, the exceptions may
bring down the offence to culpable
homicide not amounting to murder.

22. In the scheme of IPC, "culpable
homicide" is the genus and "murder" is its
specie. All murder is culpable homicide but
not vice-versa. For the purpose of fixing
punishment, proportionality to the gravity
of
generic
offence,
IPC
practically
recognizes three degrees of culpable
homicide, firstly murder as defined in
Section 300 IPC; secondly, culpable
homicide punishable under Section 304
Part I and thirdly, lowest type of culpable
homicide punishable under section 304 Part
II. There is fine difference between the two
parts of Section 304of the IPC. Under the
first part, the crime of murder is first
established and the accused is then given
the benefit of one of the exceptions to
Section 300of the IPC, while under the
second part, the crime of murder is
never established at all. Therefore, for
the purpose of holding an accused guilty
of the offence punishable under the
second part of Section 304of the IPC, the
accused need not bring his case within
one of the exceptions to Section 300of the
IPC.

Culpable Homicide Not Amounting
to Murder:-

23. Explaining the provisions of
Section 299 and Clauses secondly and
thirdly of Section 300 IPC, Hon'ble
Supreme Court held that in clause secondly,
mens rea is the knowledge possessed by
the offender regarding particular victim
being in such a peculiar condition or state
of health with internal harm caused to him
is likely to be fatal notwithstanding the fact
that such harm would not in the ordinary
way of nature be sufficient to cause death
of a person in a normal health or condition.
The intention to cause death is not the
essential requirement of clause secondly
but it is only the intention of causing such
bodily injury as the offender knows to be
likely to cause the death of the person to
whom harm is caused.