# Kali Prasad v. State of U.P

- **Citation:** (2022) 5 ILRA 50
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-10
- **Case number:** Criminal Appeal No. 1007 of 1996
- **Bench:** Mrs. Sunita Agarwal, Vikas Kunvar Srivastav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kali-prasad-v-state-of-u-p-48549
- **Pages:** 15

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302-challenge
to -conviction-modification of sentencemurder-altercation between two truck
drivers over on a trivial issue-the accused
and
the
deceased
were
strangersstatements of eye-witnesses PW-2 and
PW-3 are consistent-both were entangled
in the fight while being in their respective
trucks, the appellant gave a blow of knife
to the deceased-appellant had committed
the offence without any pre-meditation in
a sudden fight in the state of anger-oral
altercation took an ugly turn-death caused
due to head injury by the butt of the knife
on account of which the deceased went
into coma and died-the act of the
appellant was clearly with the intent to
cause bodily injury which could result in
the death-Thus, the appellant is not guilty
of murder u/s 302 of the Code but the
offence would fall under Section 304 Part
I of the IPC.(Para 1 to 38)

B. While answering the question of
modification of sentence, the principle of
exclusion could be applied. If the accused
commits an act while exceeding the right
of private defence by which the death is
caused
either
with
the
intention
of
causing death or with the intention of
causing such bodily injury as was likely to
cause death then he would be guilty under
Part I of Section 304. On the other hand if
before the application of the Exceptions of
Section 300 it is found that he was guilty
of murder within the meaning of clause
"fourthly", then no question of such
intention arises and only the knowledge is
to be fastened on him that he did indulge
in an act with the knowledge that it was
likely to cause death but without any
intention to cause it or without any
intention to cause such bodily injuries as
was likely to cause death. There does not
seem to be any escape from the position,
therefore, that the appellant could be
convicted only under Part II of Section
304 and not Part I.(Para 24)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

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50 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)05ILR A50
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE VIKAS KUNVAR SRIVASTAV, J.

Criminal Appeal No. 1007 of 1996

Kali Prasad ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri V.S. Kushwaha, Sri Dhirendra Kumar,
Sri Mohd. Kalim, Sri Ulajhan Singh Bind,
Ms. Mary Punch (Sheeba Jose)

Counsel for the Respondent:
Govt. Advocate

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302-challenge
to -conviction-modification of sentencemurder-altercation between two truck
drivers over on a trivial issue-the accused
and
the
deceased
were
strangersstatements of eye-witnesses PW-2 and
PW-3 are consistent-both were entangled
in the fight while being in their respective
trucks, the appellant gave a blow of knife
to the deceased-appellant had committed
the offence without any pre-meditation in
a sudden fight in the state of anger-oral
altercation took an ugly turn-death caused
due to head injury by the butt of the knife
on account of which the deceased went
into coma and died-the act of the
appellant was clearly with the intent to
cause bodily injury which could result in
the death-Thus, the appellant is not guilty
of murder u/s 302 of the Code but the
offence would fall under Section 304 Part
I of the IPC.(Para 1 to 38)

B. While answering the question of
modification of sentence, the principle of
exclusion could be applied. If the accused
commits an act while exceeding the right
of private defence by which the death is
caused
either
with
the
intention
of
causing death or with the intention of
causing such bodily injury as was likely to
cause death then he would be guilty under
Part I of Section 304. On the other hand if
before the application of the Exceptions of
Section 300 it is found that he was guilty
of murder within the meaning of clause
"fourthly", then no question of such
intention arises and only the knowledge is
to be fastened on him that he did indulge
in an act with the knowledge that it was
likely to cause death but without any
intention to cause it or without any
intention to cause such bodily injuries as
was likely to cause death. There does not
seem to be any escape from the position,
therefore, that the appellant could be
convicted only under Part II of Section
304 and not Part I.(Para 24)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. St. Tr. P.S. Lodhi Colony, New Delhi Vs
Sanjeev Nanda(2012) AIR SC 3104
2. Rampal Singh Vs St. of U.P. (2012) 8 SCC
289

3. Vineet Kumar Chauhan Vs St. of U.P. (2007)
14 SCC 660

4. St. of A. P. Vs S Rayavarapu Punnayya &
anr.(1976) 4 SCC 382

5. Virsa Singh Vs St. of Punj.(1958) AIR SC 465

6. Rajwant Singh Vs St. of Ker.(1966) AIR SC
1874

7. Aradadi Ramudu @ Aggiramudu Vs St. thru
Inspr. of Police, Yanam(2012) 5 SCC 249

8. St. of U.P. Vs Indrajeet (2000) 7 SCC 249

9. Statish Narayan Sawant Vs St. of Goa (2009)
17 SCC 724
5 All. Kali Prasad Vs. State of U.P.
51
10. Arun Raj Vs UOI (2010) 6 SCC 457

11. Phulia Tudu Vs St. of Bih.(2007) 14 SCC 588

12. Mohinder Pal Jolly Vs St. of Punj.(1979) 3
SCC 30

(Delivered by Hon'ble Mrs. Sunita
Agarwal J.)

1. Heard Ms. Mary Punch (Sheeba
Jose) and Mohd. Kalim learned counsels
for the appellant and Sri Patanjali Mishra
learned A.G.A. for the State-respondent.

2. This appeal is directed against the
judgment and order dated 18.4.1996
passed by the VIIth Additional Sessions
Judge, Allahabad whereby appellant Kali
Prasad has been convicted of the offence
under Section 302 IPC and sentenced for
life imprisonment.

3. The first information report
regarding
the
incident
occurred
on
29.6.1994 at about 11:30 AM, at the
Phaphamau
Railway
Crossing,
was
lodged by Sri Ram Prakash Singh (PW-5)
with the thumb impressions of the eyewitnesses PW-2 Ashok Kumar and PW-3
Ramesh Kumar Sharma. As per the eyewitness account as narrated in the written
report, on the fateful day, i.e. on
29.6.1994, deceased Ram Aasre Bhartiya
was driving a Truck No. UP70 9822 when
he reached at the Phaphamau Railway
Crossing at about 11:30 AM, the crossing
gate was closed to pass a train. As soon
as the gate was opened when the train
crossed
over,
deceased
Ram Aasre
Bhartiya moved his vehicle (truck) to
cross the railway track. At the same time,
one Truck No.UP65 B8551 also moved
forward from the opposite direction
(Eastern side) to cross the railway track.
By chance, both the trucks came side by
side and got stuck in the middle of the
railway track. The drivers of the trucks
started arguing as to who would take his
truck back. Getting angry, out of rage, the
driver of Truck No. UP65 B8551 attacked
in the neck of deceased Ram Aasre by
knife. The Khalasis of the truck namely
Ashok and Ramesh got down while
making hue and cry and with the help of
the public (crowd) present at the spot,
they had succeeded in catching hold of
the assailant driver. In the meantime, the
Khalasi of the said truck had succeeded
in running away from the spot of the
incident. The truck driver Ram Aasre had
died on the spot. Looking to the crowd,
the Railway Police reached at the spot
and the assailant driver namely the
appellant
herein
was
caught.
The
assailant driver disclosed his name as
Kali Prasad son of Lochan Kumhar,
resident of Mohalla Golachhani, Police
Station Sasaram, District Rohtas (Bihar).

4. The Check FIR was lodged at about
13:30 PM on the same day, i.e. 29.6.1994,
at the Chauki G.R.P. Prayag, Sadar, District
Allahabad.

As per the version in the first
information report, the offence of murder
was committed during the course of
altercation between two truck drivers on a
trivial issue which took an ugly turn on the
spot.

5. The recovery memo of the blood
stained and plain earth made from near the
railway track had been proved as 'Exhibit
Ka-16'. The pieces of mirror and glass
collected and seized from the Truck No.
UP70 9822 were entered in the recovery
memo proved as 'Exhibit Ka-17'. The
memo of search 'Exhibit Ka-18' indicates
that no incriminating material such as knife
52 INDIAN LAW REPORTS ALLAHABAD SERIES
was recovered from the truck being driven
by the accused appellant.

The
Ante-mortem
injuries
indicated in the postmortem report are:-

"(1) Contusion in an area of 2.0"
diameter of left Cheek.

(2) Contusion in an area of 2.0"
diameter on left temporal region.

(3) Incised wound 51⁄2" x 11⁄2" x
muscle deep front of neck below the lower
jaw.

(4) Abrasions over both chest &
Abdomen except lower 1/3 on the front
side."

On
internal
examination,
left
temporal bone was found fractured, Subdural
& Arachnoid Haemorrhage was present in the
brain membranes, Brain was congested. The
cause of death as indicated in the postmortem
report is "Death in Coma as a result of Antemortem injuries".

6. The proximate time of death as
opined by the doctor (PW-7) was about 1-1/2
day. The inquest was made on 29.6.1994 and
commenced at about 12:35 PM. In the
column of information about the crime in the
inquest report, it is noted that the deceased
was killed during an altercation out of rage.
After completion of the inquest, at about
16:30 Hours, the body was sent for
postmortem to ascertain the exact cause of
death. As per the doctor examined as PW-7,
the postmortem report was prepared in his
handwriting and bears his signature, it was
marked as 'Exhibit Ka-6'. In the examinationin-chief, while narrating the injuries of the
deceased, PW-7 had narrated the cause of
death as "Coma due to ante-mortem injuries"
and stated that the Injury Nos. 1 and 2 could
occur from a blunt object whereas injury no.
4 could also be caused by a blunt object.
Injury no. 3 was muscle deep and was
possibly caused by a sharp edged weapon.

PW-7, in cross, had clarified that
width of the weapon used had no concern
with the size of injury no. 3 and stated that
there may be variation of six hours on both
sides in the estimated time of the death.

7. PW-6, Constable Moharir posted at
the Prayag G.R.P. Chauki, Allahabad proved
that he was on duty when a written memo
was given to him by the porter namely Vijay
Bahadur of the Railway Station Prayag,
Northern Railway, related to the collusion of
two trucks at the railway track and traffic jam
situation on the spot as also the death of one
truck driver. The said memo was entered in
the General Diary at Rapat No. 50, Time
12:20 Hours on 29.6.1994. The carbon copy
of G.D. prepared in the same process was
proved with the original as 'Exhibit Ka-3'
being in the handwriting and signature of
PW-6.

It is stated by PW-6 that on
receipt of the information of the incident
through the said memo, two Constables
were sent along with the Inquest Form to
the spot. On the same day, one written
report was also given by Ram Prakash
Singh (PW-5) and the case was registered
at Rapat No. 17 at about 11:30 AM. The
carbon copy of the GD prepared by PW-6
in his hand writing and signature was
proved as 'Exhibit Ka-4'. The check report
being in the handwriting and signature of
PW-7 had been proved as 'Exhibit Ka-5'.
PW-6 had denied the suggestion of the
report being Ante-time.

8. PW-5, Ram Prakash Singh, the
scribe of the first information report stated
in the examination-in-chief that he wrote
the report on the dictation of two eyewitnesses namely Ashok Bhartiya and
Ramesh. After the report was scribed, he
read over the same to the witnesses and
5 All. Kali Prasad Vs. State of U.P.
53
then put his signature, the witnesses also
put their signatures and thumb impressions
on the same. The accused Kali Prasad was
nabbed by the crowd on the spot and the
written report was presented in the
Phaphamau Chauki. After he lodged the
report, the Investigation Officer recorded
his statement. PW-5 had denied the
suggestion that the report was dictated by
the Investigating Officer and categorically
stated
that
the
Investigating
Officer
instructed the eye-witnesses to give the
report in writing when they narrated the
incident to him.

9. PW-8 is the Investigating Officer
who had identified the memo (Paper No.
17-Ka/7) which was received at the Chauki
with regard to the incident and the
signature of the officer concerned on the
same, which was proved as Exhibit Ka-7.
He stated that after receipt of the said
memo, he alongwith two Constables
carrying the relevant papers, went to the
railway crossing where lot of crowd was
collected and traffic was jammed. Lots of
blood was found at the railway line no. 4
towards East. Almost half of the body of
the deceased was hanging from the window
of Truck No. UP70 9822 and blood was
oozing out in large quantity. The second
truck was standing towards the West.

He further stated that in the
meantime, Ram Prakash Singh (PW-5)
handed over a written report signed by
three witnesses. The assailant/appellant
herein was caught by the crowd and was
handed over to the Investigating Officer.
The trucks were sent to the Chauki
Phaphamau
and
the
first
informant
alongwith the written report was sent to
Chauki Prayag for lodging of the FIR. The
criminal case was registered under Section
304 IPC at the P.S. Prayag. A copy of the
FIR was received by the Investigating
Officer (PW-8) on the spot and then he
proceeded to prepare the relevant papers
such
as
inquest
and
other
related
documents.
The
statements
of
eyewitnesses were recorded on completion of
the inquest and the dead body was sealed
and sent for postmortem to Swaroop Rani
Hospital, Allahabad. The inquest was
proved by PW-8 being in his handwriting
and signature as 'Exhibit Ka-1'. Other
related documents were proved as 'Exhibit
Ka-8' to 'Exhibit Ka-15'. The recovery
memos of plain and blood stained earth
collected from the railway track and the
pieces of broken glass found in the truck of
the deceased were also proved by PW-8 as
Exhibit Ka-16 and Ka-17. The site plan
prepared in the handwriting and signature
of PW-8 was proved as Exhibit Ka-19. The
weapon of assault namely knife could not
be found in the truck and it was intimated
that Khalasi of the Truck No. UP65 B8551
(being driven by the assailant/appellant) ran
away with the knife. The statements of the
eye-witnesses namely PW-2 and PW-3
were recorded on the same day and after
completion of the investigation, the charge
sheet was submitted on 22.8.1994 as
Exhibit Ka-20.

In cross, PW-8 stated that he had
reached at the place of incident at about
12:35 PM and when he reached, the body
of the deceased was inside the truck, the
neck and half of the dead body was
hanging outside the window of the truck.
The assailant/appellant who was caught by
the crowd was complaining pain in his
waist, hands and body but there was no
visible injury on his person. The Khalasi of
the truck was not implicated as an accused
as he ran away from the spot. On a
suggestion, PW-8 stated that lots of blood
was present on the head, face and ears of
the deceased and hence the head injury
54 INDIAN LAW REPORTS ALLAHABAD SERIES
could not be noticed by him. He made
inspection of the truck and found several
pieces of glass and one rear-mirror. The
suggestion that the entire report was
prepared
at
the
police
station
was
categorically denied.

10. The formal witnesses had, thus,
proved the reports prepared by them during
the course of the proceedings beginning
from the lodging of the report till the
submission of the charge sheet. No
apparent contradiction or any inconsistency
could be pointed out by the learned
counsels for the appellants from the
statements of the formal witnesses and the
documentary evidences on record as proved
by them. No flaw in the investigation made
by PW-8, the Investigating Officer, could
be brought before the Court.

11. Amongst the witnesses of fact,
PW-1 Pyare Lal is the father of the
deceased and is a witness of the inquest. He
proved his signature on the inquest report
which was marked as 'Exhibit Ka-1'. PW-1
denied the suggestion that he was not
present on the spot at the time of the
preparation of the inquest. PW-4 Indra
Bahadur is owner of the Truck No. UP70
9822 which was being driven by the
deceased Ram Aasre Bhartiya at the time of
the incident. He proved his signatures on
the inquest report and, thus, being one
amongst the Panch witnesses. PW-4 stated
that the information of the incident was
given by Khalasi of the truck namely
Ramesh (PW-3), while he was present in
his Brick Kiln.

12. PW-2 and PW-3 are the eyewitnesses of the occurrence. They both
narrated the occurrence of the incident in
the same manner as asserted in the written
report and also proved their signatures on
the inquest. PW-2 Ashok Kumar stated that
the Investigating Officer recorded his
statement on the spot and he had also
identified the appellant Kali Prasad in the
Court. PW-2 stated that he went to the
market alongwith PW-3 Ramesh at about
8:00 AM and when they came near the
railway line, they sat on a tea stall. By the
time, Truck No. UP70 9822 came at the
crossing and while the other truck being
driven by the appellant namely UP65
B8551 was crossing the railway track from
the opposite side, an oral altercation started
between two drivers as to who would take
back his truck. The appellant hit the
deceased with the knife. PW-2 stated that
when the first knife blow was given by the
assailant/appellant, he got down from the
truck and could not remember as to how
many blows were given by the appellant.
Further that at the point of time, when the
deceased was given the blow of knife by
the appellant, the deceased was holding the
collar of the assailant/appellant. He stated
that apart from the injury on the neck of the
deceased, there was no other injury. It was
stated by PW-2 that during oral altercation,
the deceased and the appellant started
fighting physically and after giving the
blow of knife, the appellant moved his
truck ahead but the crowd stopped him. At
the time of the incident, there was no
Khalasi in the truck of the deceased. He
further stated that PW-3 Ramesh was also
sitting in the truck alongwith him but he
was not the Khalasi of the truck.

On confrontation, PW-2 Ashok
Kumar categorically stated that both the
trucks were standing side by side when the
incident had occurred and when the police
came, the truck of the deceased was at the
same location whereas the truck of the
assailant/appellant was at some distance.
After the assailant was caught, PW-2 went
5 All. Kali Prasad Vs. State of U.P.
55
to the house of the deceased to give
information about the incident and the
family members of the deceased had
reached the spot. PW-3 after narrating the
incident in the same manner as mentioned
in the written report, stated that he
alongwith PW-2 Ashok was sitting at a tea
stall at the railway crossing. When
deceased Ram Aasre reached in his Truck
No. UP70 9822, he alongwith Ashok PW-2
sat inside the truck. After the railway
crossing was opened, the truck moved
forward and at the same time, another truck
coming from the opposite side came side
by side to the truck being driven by the
deceased and the incident had occurred in
the manner as had been narrated by them,
namely the PW-2 and PW-3 in the written
report.

PW-3 had identified his signature
both on the written report as 'Exhibit Ka-2'
and the inquest. In cross, PW-3 stated that
both the truck drivers were fighting while
they were inside their truck and no one
came down. The assailant driver (appellant)
tried to run away by moving his truck after
the incident but he was caught by the
public. The information of the incident was
given by the Gate-man to the police. The
suggestion that the deceased had sustained
injuries in an accident with the truck being
driven
by
the
appellant,
had
been
categorically denied by PW-3, who stated
that there was no apparent injury on the
head and face of the deceased and that he
did not see any other injury apart from one
on the neck of the deceased. The
information of the incident to the truck
owner was given by him and the report of
the incident was written by one person
present on the spot on their dictation of the
whole occurrence. PW-3 stated that they sat
on the truck near the crossing and only
rear-mirror of the truck was broken. The
suggestion that the broken mirrors/glass
caused injuries to the deceased resulting in
his death had been categorically denied by
PW-3. The suggestion of friendship of PW3 with the deceased was admitted but it was
denied that on account of the friendship,
false testimony had been given by him.

13. The appellant Kali Prasad, in his
statement under Section 313 Cr.P.C.,
admitted his presence on the spot by stating
that his truck was standing at about 10 to
15 paces away from the railway crossing
while his Khalasi went to bring the water,
who when came back, informed him that
one person was hanging on the truck and in
the meantime, the crowd came and started
questioning the Khalasi and caught hold of
him (the appellant) as the Khalasi ran away
in the meantime.

14. In light of above noted evidence,
the counsels for the appellant argued that
there are material contradictions in the
statements of PW-2 and PW-3 who were
present in the truck of the deceased at the
time of the accident. The truck owner
examined as PW-4 categorically stated that
PW-3 Ramesh Kumar Sharma was Khalasi
of the truck whereas for the reasons best
known to PW-3, he had denied the said
fact. The story created by PW-2 and PW-3
(eye-witnesses) that they were sitting at a
tea stall near the railway crossing and sat in
the truck immediately before the incident,
is unbelievable. It is not understandable as
to why these two persons would deny the
factum of travelling in the truck along with
the deceased. Moreover, they (PW-2 &
PW3) themselves stated that the murder
had been caused in a fit of rage during the
course of oral and physical altercation
between the appellant and the deceased. It,
therefore, cannot be a case of murder so as
to fall within the meaning of Section 302
IPC from any angle, even if, the entire case
56 INDIAN LAW REPORTS ALLAHABAD SERIES
of the defence is rejected. The trial court
has illegally convicted the appellant for the
offence under Section 302 IPC completely
ignoring the manner in which the incident
had occurred.

It is argued that only one blow of
knife that too muscle deep wound was
found on the person of the deceased but
there
is
no
recovery
of
alleged
weapon/knife. The doctor (PW-7), on the
other hand, stated in the examination-inchief that the death was caused due to
Coma on account of head injury which was
Subdural & Arachnoid Haemorrhage due to
broken bones on the left side of the head.
Neither it can be found in the statement of
the doctor nor it can be said that the injury
no. 3, the incised wound, muscle deep on
the neck below the lower jaw, was the
cause of the death.

15. For the aforesaid, the present case
does not fall beyond the scope of the
offence under Section 304 Part II, i.e. of
causing injuries with the knowledge that it
was likely to cause death but without any
intention to cause death. The contention is
that the conviction of the appellant under
Section
302
IPC
is
a
result
of
misappreciation of the evidence on record.
The appellant, at the worst, can be
convicted and punished for the offence
under Section 304 Part II, maximum
sentence for which is 10 years. The
appellant has already suffered incarceration
for a period of about 9 years as he was
lodged in jail in the year 2019 in execution
of a non-bailable warrant issued by this
Court vide order dated 3.12.2019 and
remained in jail uptill the year 1999 when
he was granted bail by this Court.

16. According to the learned counsels
for the appellant, the total period of
incarceration of the appellant is about 9
years. The judgment of the Apex Court in
State Tr. P.S. Lodhi Colony, New Delhi
vs. Sanjeev Nanda1 was relied to assert
that this case would fall within the meaning
of 'Death by negligent Act' and can only
fall under Section 304 Part II. The
sentencing policy approved and adopted by
the Courts that the punishment must be
appropriate and proportional to the gravity
of the offence committed must guide the
Court to determine that the offender should
be adequately punished for the crime. The
punishment of life imprisonment in the
facts and circumstances of the case is grave
and
disproportionate
to
the
offence
committed. The factors necessary to be
considered while imposing the sentence
such as; the nature and circumstance of the
offence; the need for the sentence imposed
to reflect the seriousness of the offence; to
afford adequate deterrence to the conduct
and to protect the public from such crime,
have been completely ignored by the trial
court while convicting the appellant under
Section 302 and awarding sentence of life
imprisonment.

17. Learned A.G.A., on the other
hand, defended the judgment of the trial
court with the assertion that with the
proven fact that the appellant was caught
red handed on the spot, it is established that
he had committed the murder with full
knowledge and intention as the blow of
knife was given by him to cause death of
the person who was attacked. There is
ample evidence against the appellant and
the prosecution has succeeded in proving
its case beyond reasonable doubt that the
appellant is the perpetrator of the crime. In
the light of the oral testimony of the
prosecution witnesses (PW-2 and PW-3)
and the promptness of the FIR, the arrest of
the accused appellant from the spot, there is
5 All. Kali Prasad Vs. State of U.P.
57
no scope of interference in the judgment of
conviction and sentence passed by the trial
court.

18. Having heard learned counsels for
the parties and perused the record, as
regards the place of occurrence of the
incident and the manner in which the
incident had occurred, they stand proved
with the statements of the prosecution
witnesses and other material circumstances
on record. The presence of the eyewitnesses (PW-2 and PW-3) on the spot
cannot be doubted as they both are
witnesses of the written report which was
promptly lodged by PW-5, the scribe of the
report. It is proved that PW-5 wrote the
report, narrating the occurrence, on the
dictation of the eye-witnesses (PW-2 and
PW-3), after the police reached the spot of
the occurrence. The first information of the
incident by a memo paper no. 17-Ka/7
(Exhibit Ka-7) was given by the porter
Vijay Bahadur of the Railway Station
Prayag, Northern Railway, at the GRP
Chauki Prayag, Allahabad entry of which
was made in the General Diary by PW-6 at
about 12:20 Hours on 29.6.1994. Whereas
after receipt of the written report, the first
information report under Section 154
Cr.P.C. was registered at about 13:30 hours
with the preparation of the Check report
which fact is proved.

It was proved by PW-8 that on receipt
of the memo Exhibit Ka-7, after its entry in
the General Diary, he moved to the place of
the incident carrying all relevant papers and
when he reached at the crossing, lots of
crowd was collected and the appellant was
handed over to him by the crowd. On
narration of the incident by the eyewitnesses, he directed them to write the
report. The scribe of the report PW-5
proved that though he wrote the report on
the instructions of the Investigating Officer
but at the time when the report was scribed
on the dictation of the eye-witnesses (PW-2
and PW-3), the Investigating Officer was
not present and denied the suggestion that
the report was prepared on the dictation of
the Investigating Officer. The occurrence of
the incident resulting in the homicidal
death of deceased Ram Aasre Bhartiya at
the railway crossing, inside the truck being
driven by him, is proved. It is also proved
that the appellant herein namely Kali
Prasad is the perpetrator of the crime and
the death was caused during an altercation
between the appellant and the deceased. All
the suggestions given by the defence that it
was an accident, are found without any
substance. The presence of the eyewitnesses on the spot cannot be doubted
and could not be disputed successfully by
the defence.

19. In the said situation, the question
is as to whether the act of the appellant in
causing death of the deceased would
amount to murder within the meaning of
Section 300 IPC or it is a case of culpable
homicide which will not amount to murder
attracting punishment under Section 304
IPC. Further question is as to in which part
of Section 304 IPC, the offence in question
would be punishable, in case, the Court
reaches at the conclusion that it was a case
of 'culpable homicide not amounting to
murder' and not 'murder'.

20. In order to ascertain the same, we
are required to go through the legal
principles
governing
the
distinction
between the provisions under Sections 300
and 302 of the Code on the one hand and
Section 304 Part I and Part II of the Code
on the other. Section 299 of the Code which
deals with the definition of culpable
homicide is also to be taken note of.
58 INDIAN LAW REPORTS ALLAHABAD SERIES

Sections 299 and 300 of the
Indian Penal Code deal with the definitions
of
'culpable
homicide'
and
'murder';
respectively. In terms of Section 299,
'culpable homicide' is described as an act of
causing death:- (i) with the intention of
causing death, or (ii) with the intention of
causing such bodily injury as is likely to
cause death, or (iii) with the knowledge
that such an act is likely to cause death. As
is clear from the reading of this provision,
the first part of it emphasises on the
expression ''intention' while the latter upon
''knowledge'. As has been noted in a catena
of decisions, both these words denote
positive mental attitudes of different
degrees. The mental element in ''culpable
homicide', i.e. the mental attitude towards
the consequences of conduct is one of
intention and knowledge. Once an offence
is caused in any of the above three stated
manners, it would be ''culpable homicide'.

Section 300, however, deals with
''murder'. Though
there
is
no
clear
definition of ''murder' in Section 300 of the
Code but as has been held by the Apex
Court and reiterated in Rampal Singh vs.
State
of
Uttar
Pradesh2,
''culpable
homicide' is the genus and ''murder' is its
species and all ''murders' are ''culpable
homicides' but all ''culpable homicides' are
not ''murders'.

21.

Another
classification
that
emerges from the Code is "culpable
homicide not amounting to murder",
punishable under Section 304 of the Code.
There are decisions which also deal with
the fine line of distinction between the
cases falling under Section 304, Part I and
Part II.

22. Dealing with a matter, wherein the
question for consideration was whether the
offence established by the prosecution
against the appellant therein was "murder"
or "culpable homicide not amounting to
murder", the Apex Court in Vineet Kumar
Chauhan vs. State of Uttar Pradesh3
considered its earlier decision in the State
of Andhra Pradesh Vs. Rayavarapu
Punnayya and Another4, wherein the then
Justice R.S. Sarkaria brought out the points
of distinction between the two offences
under Sections 299 and 300 IPC, reiterating
the law laid down in Virsa Singh Vs. State
of Punjab5 and Rajwant Singh Vs. State
of Kerala6. It was held therein that
whenever a Court is confronted with the
question whether the offence is "murder" or
"culpable homicide not amounting to
murder"; on the facts of a case, it will be
convenient for it to approach the problem
in three stages:- (i) the question to be
considered, at the first stage, would be
whether the accused has done an act by
doing which he has caused the death of
another; (ii) proof of such connection
between the act of the accused and the
death, leads to the second stage for
considering whether that act of the accused
amounts to "culpable homicide" as defined
in Section 299. If the answer to this
question is prima facie found in the
affirmative, the stage for considering the
operation of Section 300 IPC is reached;
(iii) the third stage is to determine whether
the facts proved by the prosecution bring
the case within the ambit of any of the four
clauses of the definition of "murder"
contained in Section 300. If the answer is in
the negative the offence would be "culpable
homicide not amounting to murder",
punishable under the first or the second part
of Section 304, depending, respectively, on
whether the second or the third clause of
Section 299 is applicable.

Further, if this question is found
in the positive, but the case comes within
5 All. Kali Prasad Vs. State of U.P.
59
any of the exceptions enumerated in
Section 300, the offence would still be
"culpable homicide not amounting to
murder", punishable under the first part of
Section 304 IPC. It was, however, clarified
therein that these were only the broad
guidelines to facilitate the task of the Court
and not cast iron imperative.

23. In Aradadi Ramudu alias
Aggiramudu vs. State through Inspector
of Police, Yanam7, the question was for
modification of sentence from Section 302
to Section 304 Part II. While answering the
same, the Apex Court had considered the
above noted decisions in Virsa Singh
(supra) as also other decisions in line
namely State of U.P. v. Indrajeet8; Satish
Narayan Sawant vs. State of Goa9 and
Arun Raj vs. Union of India10 to note
that for modification of sentence from
Section 302 to Section 304 Part II, not only
should there be an absence of the intention
to cause death, but also an absence of
intention to cause such bodily injury that in
the ordinary course of things was likely to
cause death. [Reference Paragraph 16]

Noticing
the
above
noted
decisions, in Rampal Singh (supra) the
Apex Court had considered the distinction
between the terms "murder" and "culpable
homicide not amounting to murder". The
observation in State of Andhra Pradesh
Vs. Rayavarapu Punnayya (supra) was
noted in paragraph '13' of Rampal Singh
(supra) as under:-

"13. In the case of State of A.P. v.
Rayavarapu Punnayya, this Court while
clarifying the distinction between these two
terms and their consequences, held as
under: -
"12. In the scheme of the
Penal Code, ''culpable homicide' is genus
and ''murder' its species. All ''murder' is
''culpable homicide' but not vice versa.
Speaking
generally,
.......''culpable
homicide not amounting to murder'. For the
purpose
of
fixing
punishment,
proportionate to the gravity of this generic
offence, the Code practically recognises
three degrees of culpable homicide. The
first is, what may be called ''culpable
homicide of the first degree'. This is the
greatest form of culpable homicide, which
is defined in Section 300 as ''murder'. The
second may be termed as ''culpable
homicide of the second degree'. This is
punishable under the first part of Section
304. Then, there is ''culpable homicide of
the third degree'. This is the lowest type of
culpable homicide and the punishment
provided for it is, also, the lowest among
the punishments provided for the three
grades. Culpable homicide of this degree is
punishable under the second part of
Section 304."

The guidelines laid down in its
earlier decision in Phulia Tudu vs. State of
Bihar11 had been noted therein to reiterate
that the safest way of approach to the
interpretation and application of these
provisions (Sections 299 and 300) is to
keep in focus the key words used in the
various clauses of these sections. In
paragraph '17', it was noted that :-

"17. Section 300 of the Code
states what kind of acts, when done with the
intention of causing death or bodily injury
as the offender knows to be likely to cause
death or causing bodily injury to any
person, which is sufficient in the ordinary
course of nature to cause death or the
person causing injury knows that it is so
imminently dangerous that it must in all
probability cause death, would amount to
"murder". It is also "murder" when such an
act is committed, without any excuse for
incurring the risk of causing death or such
bodily injury. The Section also prescribes
the exceptions to "culpable homicide
60 INDIAN LAW REPORTS ALLAHABAD SERIES
amounting to murder". The Explanations
spell out the elements which need to be
satisfied for application of such exceptions,
like an act done in the heat of passion and
without pre- mediation. Where the offender
whilst being deprived of the power of self-
control by grave and sudden provocation
causes the death of the person who has
caused the provocation or causes the death
of any other person by mistake or accident,
provided such provocation was not at the
behest of the offender himself, "culpable
homicide would not amount to murder".
This Exception itself has three limitations.
All these are questions of facts and would
have to be determined in the facts and
circumstances of a given case."

It was observed in paragraph '21'
in Rampal Singh (supra) that Sections 302
and 304 of the Code are primarily the
punitive provisions. An analysis of these
two Sections must be done having regard to
what is common to the offences and what is
special to each one of them. The offence of
culpable homicide is, thus, an offence
which may or may not be murder. If it is
murder, then it is culpable homicide
amounting
to
murder,
for
which
punishment is prescribed in Section 302 of
the Code. Section 304 deals with cases not
covered by Section 302 and it divides the
offence into two distinct classes, i.e. (a)
those in which the death is intentionally
caused; and (b) those in which the death is
caused unintentionally but knowingly. In
the
former
case
the
sentence
of
imprisonment is compulsory and the
maximum
sentence
admissible
is
imprisonment for life. In the latter case,
imprisonment is only optional and the
maximum
sentence
only
extends
to
imprisonment for 10 years. The first clause
of Section 304 includes only those cases in
which offence is really "murder", but
mitigated by the presence of circumstances
recognized in the Exceptions to Section
300 of the Code, the second clause deals
only with the cases in which the accused
has no intention of injuring anyone in
particular.

In paragraph '22' Rampal Singh
(supra), it was observed that where the act
is done with the clear intention to kill the
other person, it will be a murder within the
meaning of Section 300 of the Code and
punishable under Section 302 of the Code
but where the act is done on grave and
sudden provocation which is not sought or
voluntarily provoked by the offender
himself, the offence would fall under the
Exceptions to Section 300 of the Code and
is punishable under Section 304 of the
Code. Another fine tool which would help
in determining such matters is the extent of
brutality or cruelty with which such an
offence is committed. (emphasis added)

It was, thus, held therein that the
distinction between two parts of Section
304 (Part I and Part II) is evident from the
very language of this section. While Part I
is founded on the intention of causing the
act by which the death is caused, the other
is attracted when the act is done without
any intention but with the knowledge that
the act is likely to cause death.

It was further observed therein
that it is neither advisable nor possible to
state any straight-jacket formula that would
be universally applicable to all cases for
such determination. Every case essentially
must be decided on its own merit. The
Court has to perform the very delicate
function of applying the provisions of the
Code to the facts of the case with the clear
demarcation as to under what category of
cases,
the
case
at
hand
falls
and
accordingly, punish the accused.

24. Referring to an earlier decision in
Mohinder
Pal
Jolly
vs.
State
of
5 All. Kali Prasad Vs. State of U.P.
61
Punjab12, it was noted in Rampal Singh
(supra) that the distinction between two
parts of Section 304 has been stated with
some clarity therein which reads as under:-

"24. A Bench of this Court in the
case of Mohinder Pal Jolly v. State of
Punjab [1979 AIR SC 577], stating this
distinction with some clarity, held as under
:

"11. A question arises whether the
appellant was guilty under Part I of Section
304 or Part II. If the accused commits an
act while exceeding the right of private
defence by which the death is caused either
with the intention of causing death or with
the intention of causing such bodily injury
as was likely to cause death then he would
be guilty under Part I. On the other hand if
before the application of any of the
Exceptions of Section 300 it is found that
he was guilty of murder within the meaning
of clause "fourthly", then no question of
such
intention
arises
and
only
the
knowledge is to be fastened on him that he
did indulge in an act with the knowledge
that it was likely to cause death but without
any intention to cause it or without any
intention to cause such bodily injuries as
was likely to cause death. There does not
seem to be any escape from the position,
therefore, that the appellant could be
convicted only under Part II of Section 304
and not Part I."

As a guideline as to how the
classification of an offence into either Part
of Section 304 would be made, it was held
in paragraph '25' as under:-

"25.
......xxxxxxxxxxxx.......This
would have to be decided with reference to
the nature of the offence, intention of the
offender, weapon used, the place and
nature of the injuries, existence of premeditated mind, the persons participating
in the commission of the crime and to
some extent the motive for commission of
the crime.