# Km. Sandhya Singh & Ors. (In Jail) v. State of U.P

- **Citation:** (2023) 1 ILRA 958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-22
- **Case number:** Criminal Appeal No. 5125 of 2018
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-sandhya-singh-ors-in-jail-v-state-of-u-p-49174
- **Pages:** 8

## Headnote

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 60- Case of circumstantial
evidence-Evidence
of
'last-seen'-Extrajudicial confession-Evidence of PW1 is
hear-say evidence and is not admissible-
fact of 'last-seen' was disclosed by PW2
and PW4 after 25 days of the said
occurrence when the dead-body of the
child was recovered- PW4-Jai Karan also
did not disclose the fact of 'last-seen' to
anybody during this period of 25 days-
The testimony of PW2 and PW4 is not
reliable and it does not inspire confidence.
So the important link of the chain of
circumstances breaks here.

In a case of circumstantial evidence the
prosecution has to prove every link of the
circumstances and where the story of last seen
is rendered unbelievable and testimony of the
witness is based on hearsay, then the links in
the story of the prosecution break.

Indian Evidence Act, 1872- Section 3-
Section 8- In a case of circumstantial
evidence, motive carries a strong weightIt was incumbent upon prosecution to
prove the motive behind the crime yet
PW3, the mother of the deceased, has first
time disclosed the motive in her testimony
that appellant used to falsely allegate her
husband for molesting her. This motive
could not be proved by prosecution by
way of any evidence.

Motive is a relevant fact in a case based on
circumstantial evidence as the same forms one
of the links in the chain of circumstances and
where the prosecution fails to prove the motive
then the story of the prosecution is rendered
doubtful.

Indian Evidence Act, 1872- Section 24 -
Settled law with regard to extra-judicial
confession that it should be made before a
person, who is in position to save or help
the accused making confession. In this
case, the aunt of deceased-child was not
in a position to save or help the appellants
so there was no question for any of the
appellants to confess before PW5.

Where the extra-judicial confession is made to a
person who is not in a position to save or help
the accused then such extra-judicial confession
cannot be believed. (Para 17, 19, 20, 21, 22,
23)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

## Text

958 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2023) 1 ILRA 958
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 5125 of 2018

Km. Sandhya Singh & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Saroj Kumar Yadav, Sri Rahul Mishra,
Sri Vishwadeep Patel

Counsel for the Respondent:
G.A., Sri Birendra Singh

Criminal Law- Indian Evidence Act, 1872-
Sections 3 & 60- Case of circumstantial
evidence-Evidence
of
'last-seen'-Extrajudicial confession-Evidence of PW1 is
hear-say evidence and is not admissible-
fact of 'last-seen' was disclosed by PW2
and PW4 after 25 days of the said
occurrence when the dead-body of the
child was recovered- PW4-Jai Karan also
did not disclose the fact of 'last-seen' to
anybody during this period of 25 days-
The testimony of PW2 and PW4 is not
reliable and it does not inspire confidence.
So the important link of the chain of
circumstances breaks here.

In a case of circumstantial evidence the
prosecution has to prove every link of the
circumstances and where the story of last seen
is rendered unbelievable and testimony of the
witness is based on hearsay, then the links in
the story of the prosecution break.

Indian Evidence Act, 1872- Section 3-
Section 8- In a case of circumstantial
evidence, motive carries a strong weightIt was incumbent upon prosecution to
prove the motive behind the crime yet
PW3, the mother of the deceased, has first
time disclosed the motive in her testimony
that appellant used to falsely allegate her
husband for molesting her. This motive
could not be proved by prosecution by
way of any evidence.

Motive is a relevant fact in a case based on
circumstantial evidence as the same forms one
of the links in the chain of circumstances and
where the prosecution fails to prove the motive
then the story of the prosecution is rendered
doubtful.

Indian Evidence Act, 1872- Section 24 -
Settled law with regard to extra-judicial
confession that it should be made before a
person, who is in position to save or help
the accused making confession. In this
case, the aunt of deceased-child was not
in a position to save or help the appellants
so there was no question for any of the
appellants to confess before PW5.

Where the extra-judicial confession is made to a
person who is not in a position to save or help
the accused then such extra-judicial confession
cannot be believed. (Para 17, 19, 20, 21, 22,
23)

Criminal Appeal allowed. (E-3)

Case Law/ Judgements relied upon:-

1. Shivaji Chintappa Patil Vs St. of Maha. dated
2.3.2021 in Crl. Appeal No.1348 of 2013

2. Sharad Birdhichand Sarda Vs St. of Maha.,
(1984) 4 SCC 116

3. St. of U.P. Vs Kishanpal (2008) 16 SCC 73

4. Pannayar Vs St. of T.N, (2009) 9 SCC 152
(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred
against the judgment and order dated
6.8.2018, passed by the learned Additional
1 All. Km. Sandhya Singh & Ors. Vs. State of U.P.
959
District and Sessions Judge-V, Banda, in
Session Trail No.204 of 2010 (State of UP
vs. Km.Sandhya Singh and others) arising
out of Case Crime No.119 of 2010 under
Sections 364/34, 302/34, 201/34 IPC,
Police
Station-Baberu,
District-Banda,
whereby the appelants are convicted and
sentenced for the offences under Section
364/34, 302/34 and 201/34 IPC for life
imprisonment with a fine of Rs.5,000/- and
in defalut of payment of fine, further
imprisonemnt for one month.

2. Heard Shri Vishwadeep Patel,
learned counsel for the appellants, Shri
Birendra Singh, learned counsel for the
informant, Shri Patanjali Mishra, learned
AGA for the State and perused the record.

3. The brief facts of the case are that
son of the informant, Namely, Kishan aged
about 2-1/2 years went missing on
24.4.2010. Next day, on 25.4.2010 a
missing report was lodged by informant at
Police Station-Baberu, District-Banda. On
18.5.2010, the dead-body of the missing
son was found in the well situated in the
housing campus of accused-Prakashveer. In
the
meantime,
on
1.5.2010,
first
information report (Ex.ka1) was lodged by
informant with the averment that his son
Kishan was playing in front of the gate of
the house on 24.4.2010 at about 6:15 pm.
and
some
unknown
persons
have
kidnapped him.

4. After recovering the dead-body on
18.5.2010, another report (Ex.ka3) was
given at Police Station-Baberu, DistrictBanda in which it is averred by informant
that on 24.4.2010, his son Kishan went
missing
from
the
gate
of
accusedPrakashveer. On that date, he had gone to
the pond with his mother. On coming back,
he was following his mother and started
playing near the gate of Prakashveer. At
that time, Prakashveer, Sandhya (daughter
of Prakashveer), Mukut, Gulab and Rakesh
were present inside the house. At the same
time, Shankar and Jaikaran @ Fakku were
going towards the house of Shankar from
the shop of Mattu. They saw that Kishan
was playing inside the gate of the
Prakashveer and all the aforesaid persons
were standing inside the gate. He had belief
that aforesaid persons have murdered his
son and had thrown the body in the well
with the help of Dinesh and Deshraj.

5. During the course of investigation,
the Investigating Officer recorded the
statement of witnesses under Section 161
Cr.P.C. Search-memo was prepared. On
recovery
of
the
dead-body,
inquest
proceedings were conducted and the body
was sent for postmortem. Concerned doctor
conducted the postmortem on the body of
the deceased and prepared the postmortem
report. After completion of investigation,
the IO has submitted chargesheet against
the accused, namely, Kumari Sandhya,
Prakashveer @ Malkhan, Gulab and Mukut
under Section 364, 302 and 201 IPC.

6. The case, being triable exclusively
by the Court of Session, was committed by
Magistrate to the Court of Session. Learned
trial-court framed charges against the
appellants under Sections 364, 302 IPC
read with Section 34 IPC and Section 201
IPC. Accused-appellant denied the charges
and claimed to be tried.

7. Prosecution examined following
witnesses:

1
Virendra Singh PW1
2
Shankar
PW2
3
Pinki
@
Sandhya
PW3
960 INDIAN LAW REPORTS ALLAHABAD SERIES
4
Jai Karan
PW4
5
Sangita Devi
PW5
6
Dr.P.S. Sagar
PW6
7
Rakesh Kumar
Mishra
PW7
8
Ashok
Dhar
Pandey
PW8

8. Apart from aforesaid witnesses,
prosecution
submitted
following
documentary evidence, which was proved
by leading the evidence:

1
Written Report
Ex.ka1
2
Recovery memo
of body
Ex.ka2
3
Application
Ex.ka3
4
Search Memo of
Well and House
and Recovery of
Skull
Ex.ka4
5
Affidavit
of
Shankar Singh
Ex.ka5
6
Affidavit of Jai
Karan Singh
Ex.ka6
7
P.M. Report
Ex.ka8
8
Site
Plan
with
Index
Ex.ka9
9
Panchayatnama
Ex.ka10
10
Site
Plan
with
Index
Ex.ka16
11
Site
plan
with
Index
Ex.ka18
12
Charge-Sheet
(Mool)
Ex.ka19

9. After completion of prosecution
evidence, the statements of accused persons
were recorded under Section 313 Cr.P.C. in
which they told that they have been falsely
implicated in this case and false evidence is
led against them. They were implicated
only on the basis of enmity. Accused
persons have examined two witnesses in
their defence. Learned Trial Court after
hearing both the sides convicted all the
accused persons, namely, Km.Sandhya
Singh, Prakashveer @ Malkhan, Gulab
Singh and Mukut @ Tarun Singh for the
offences under Sections 364 read with
Section 34, Section 302 read with Section
34 and 201 read with Section 34 IPC and
sentenced them for life imprisonment and
fine. Hence, this appeal.

10. Learned counsel for the appellants
submitted this is a case of circumstantial
evidence because as per prosecution case
nobody has seen the ill-fate of the deceased
child. There is no eye-witness in this case.
Learned counsel submitted that detailed
first information report was lodged by the
informant after one week of the recovery of
the dead-body of the deceased, in which, he
has first of all, disclosed the names of the
appellants, that too, on the basis of
suspicion.

11. Further submission of learned
counsel for the appellants is that in case of
circumstantial evidence, motive assumes a
great importance while in this case, no
motive is established by the prosecution.
There is nothing on record as to why the
appellants
committed
murder
of
the
deceased-child.
The
mother
of
the
deceased-child, namely, Pinki @ Sandhya
had first time in her deposition disclosed
that accused Sandhya was falsely allegating
the informant that he had molestated her.
This is not such motive on the basis of
which a crime like murder of the child
could be committed.

12. Learned counsel for the appellants
further submitted that the prosecution has
developed the theory of 'last-seen' for
which Shankar-PW2, Jai Karan-PW4 were
examined. Both these witnesses have
1 All. Km. Sandhya Singh & Ors. Vs. State of U.P.
961
deposed that they had seen the deceasedchild in the company of appellants on
24.4.2010 and they were taking him
towards the well from which the dead-body
was recovered. Learned counsel strongly
contended that both the above witnesses
have disclosed this fact to the familymembers of the deceased-child after the
recovery of the dead-body, which is quite
unbelievable because if such type of
incident occurs in any village, nobody
would keep silent for a period of 25 days,
when the search of the missing-boy was on.
It shows that both PW2 and PW4 are
planted witnesses. Last-seen theory by
prosecution is not proved at all.

13. It is next submitted by learned
counsel for the appellants that there is
evidence of extra-judicial confession also
in this case, which is falsely created by the
prosecution. It is said that Sangita DeviPW5 is the bua of the deceased-child and
accused Km.Sandhya Singh had gone to
her and confessed that on 24.4.2010, she
allured the deceased-child Kishan and
taken him inside her house where all other
accused persons were present. They all
murdered Kishan and threw his body into
the well. It was also told that her family
was in pain because she was molested by
the father of the deceased. Learned counsel
submitted that this witness was also
planted. It was not possible for PW5 to
keep silent till the recovery of the deadbody
of
the
child
if
the
accused
Km.Sandhya Singh has confessed before
her because PW5 is bua of the deceasedchild.

14. Learned counsel for the appellants
also submitted that as per the statement of
I.O., somebody had given clue to I.O. that
the body would be found in the well of
Prakashveer, then the police recovered the
dead-body, but it is nowhere in the
prosecution evidence as to who had given
the clue. That important link is missing
because the dead-body was not recovered
at the behest of any of the appellants.
Learned counsel for the appellants relied on
the judgment of Apex Court in Shivaji
Chintappa Patil vs. State of Marashtra
delivered on 2.3.2021 in Criminal Appeal
No.1348 of 2013 and submitted that in the
aforesaid pronouncement, it is held by
Hon'ble Apex Court that if two views are
possible on the basis of prosecution
evidence, one favouring the accused and
other against the accused, the view
favouring the accused is to be adopted.
Hence, the learned trial court has fallen in
grave error by convicting the appellants
without any evidence against them and the
impugned judgment is liable to be set aside
and accused be set free.

15. Shri Birendra Singh, learned
counsel for the informant, submitted on
behalf of prosecution that the well from
which the dead-body of the deceased-child
was recovered is situated in the coumpound
of house of the appellants, which is
fortified by a boundary wall and the well in
question is not in access of general public.
It is also submitted that this crime appears
to be a crime of sacrifice where the
deceased child was sacrificed by the
appellants for some superstitious rituals.
With regard to the fact of last-seen
evidence, learned counsel submits that
PW2 and PW4 might not have told the fact
of last-seen of the child with the appellants
so that they may not create enmity with the
appellants. It is next submitted that extrajudicial confession is made by appellant,
Km.Sandhya Singh before PW5-Sangita
and she also might not have told this fact to
the family members of the child due to fear
of enmity with the appellants.
962 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Learned AGA opposed the
submissions made by learned counsel for the
appellants and contended that all the
circumstances in this case clearly indicate
towards the appellants and proved that the
offence is committed by the appellants only.
It is submitted that if the informant wanted to
implicate the appellants falsely then in that
case, he should have lodged FIR against them
on the same day when his son went missing,
but he did not do so and lodged a missing
report in police station in which nobody was
named. Learned AGA next submitted that
PW2-Shankar,
PW4-Jai
Karan
are
independent witnesses, who have deposed
that they had seen the deceased-boy in the
company of the appellants inside their house
and thereafter the deceased-boy was never
seen alive with anybody else. There is no
contradiction in their statements. With regard
to the testimony of PW5-Sangita Devi,
learned AGA submitted that she is the lady
before whom the accused-Km.Sandhya Singh
has confessed. PW5 did not disclose the
aforesaid facts before anybody as she was in
faith with accused Sandhya Singh, but after
recovery of dead-body of the deceased-child,
she could not stop herself and disclosed the
extra-judicial confession was made by
accused Sandhya Singh before her. This is
not unusual. Moreover, Investigating Officer
has also proved the fact of recovery of the
dead-body from the well, which is situated in
the housing campus of the appellants. This
well was not in the approach of any other
persons. This circumstance also indicates
towards the guilt of the appellants. Hence,
prosecution case is well proved beyond
reasonable
doubt
on
the
basis
of
circumstantial evidence and there is no
illegality in the impugned judgment, which
calls for any interference by this Court.

17. This is a case of circumstantial
evidence as nobody has seen the murder of
the deceased-child. Prosecution has mainly
based its case on the basis of evidence of
'last-seen' by PW2, PW4 and on the basis
of extra-judicial confession made by one of
the appellants, namely, Km.Sandhya Singh
before PW5.

18.

Regarding
the
law
of
circumstantial evidence, Hon'ble Apex
Court in the case of Sharad Birdhichand
Sarda vs. State of Maharashtra, (1984) 4
SCC 116 has held as under:

153. A clost analysis of this
decision would show that the following
conditions must be fulfilled before a case
against an accused can be said to be fully
established:

(1) the circumstance from which
the conclusion of guilt is to be drawn
should be fully established.

It may be noted here that this
Court indicated that the circumstances
concerned 'must or should' and not 'may
be' established. There is n ot only a
grammatical
but
a
legal
distinction
between 'may be proved' and 'must be or
should be proved' as was held by this Court
in Shivaji Sahabrao Bobade vs. State of
Maharashtra (1973) 2 SCC 793 where the
observations were made: [SCC para 19,
p.807 : SCC (Cri) p.1047]

"19. ...Certainly, it is primary
principle that the accused must be and not
merely may be guilty before a court can
convict and the mental distance between
'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."

(2) the facts so established should
be consistent only with hypothesis of the
guilt of the accused, that is to say, they
should not be explainable on any other
hypothesis except that the accused is guilty,

(3) the circumstnaces should be
of a conclusive nature and tendency,
1 All. Km. Sandhya Singh & Ors. Vs. State of U.P.
963

(4) they should excluse every
possible hypothesis except the one to be
proved, and

(5) there must be a chain of
evidence so complete as not to leave any
reasonable ground for the conclusion
consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by
the accused.

154. These five golden principles,
if we may say so, consitute the panchsheel
of the proof of a case based on
circumstantial evidence."

19.

Prosecution
has
examined
informant-Virendra Singh as PW1, who has
formally proved the missing report and first
information report. The deposition with
regard to the facts, leading to the death of
the child, are narrated by PW1 in his
evidence, but it was only hear-say. He has
deposed that appellants had taken his son
Kishan towards the well and they threw
him into the well after murder. This witness
has specifically deposed that this aforesaid
fact was told to him by Shankar and Jai
Karan after recovery of dead-body. Hence,
the evidence of PW1 is hear-say evidence
and is not admissible.

20. Prosecution has examined PW2Shankar and PW4-Jai Karan as witnesses
of 'last-seen'. They both have deposed that
on 24.4.2010, they had seen that the
deceased-boy was playing inside the gate
of appellants where all other appellants
were present. They all took away the boy
towards the well. PW4-Shankar has gone
further and said that he saw that accused
Km.Sandhya Singh came out with biscuit
in her hand and took the boy inside her
house by showing the biscuit where all
other appellants were sitting on the cot. It is
admitted fact of position that this fact of
'last-seen' was disclosed by PW2 and PW4
after 25 days of the said occurrence when
the dead-body of the child was recovered.
PW2-Shankar
has
admitted
in
cross
examination that he did not tell to I.O the
fact that appellant-Km. Sandhya Singh had
enticed away the child by showing the
biscuit. Hence, this is the improvement in
his evidence made by PW2. Further in his
cross-examination, PW2 has admitted that
since 24.4.2010 till the recovery of deadbody
of
the
deceased-Kishan,
he
continuously remained in the village and
used to met the family members of the
deceased. In such a situation, it is very
stange why PW2 did not disclose the fact
of 'last-seen', as narrated above. No such
explanation is given by the witness in his
testimony as to why he kept silent for a
period of 25 days, if he had seen the
deceased-child
in
the
company
of
appellants on 24.4.2010. The same goes
with PW4-Jai Karan. He also did not
disclose the fact of 'last-seen' to anybody
during this period of 25 days. He also
spoke out after dead-body was recovered.
He has admitted in his testimony that he
did not tell anybody that accused Sandhya
had taken away the deceased-Kishan and
no explanation is given by this witness as
to why he also kept silent for 25 days and
disclosed the fact of last seen for the very
first time after recovery of the dead-body.
Hence, in our considered view, the
testimony of PW2 and PW4 is not reliable
and it does not inspire confidence. So the
important
link
of
the
chain
of
circumstances breaks here.

21. In a case of circumstantial
evidence, motive carries a strong weight.
The Apex Court in State of UP vs.
Kishanpal (2008) 16 SCC 73, has observed
that the motive is a thing which is primarily
known to the accused themselves and it is
964 INDIAN LAW REPORTS ALLAHABAD SERIES
not possible for the prosecution to explain
what actually promoted or excited them to
commit the particular crime. The motive
may be considered as a circumstance which
is relevant for assessing the evidence but if
the evidence is clear and unambiguous and
the circumstances prove the guilt of the
accused, the same is not weakened even if
the motive is not a very strong one. It is
also settled law that the motive loses all its
importance in a case where direct evidence
of eyewitnesses is available, because even
if there may be a very strong motive for the
accused persons to commit a particular
crime, they cannot be convicted if the
evidence of eyewitnesses is not convincing.
In the same way, even if there may not be
an apparent motive but if the evidence of
the eyewitnesses is clear and reliable, the
absence or inadequacy of motive cannot
stand in the way of conviction. It is further
held in Pannayar vs. State of Tamilnadu,
(2009) 9 SCC 152 that the absence of
motive
in
a
case
depending
on
circumstantial evidence is a factor that
weighs in favour of the accused.

22. In the case in hand, the testimony
of PW2 and PW4, who are said to be
witnesses of last-seen, is not found reliable
by us. Hence, it was incumbent upon
prosecution to prove the motive behind the
crime.
Although,
the
FIR
is
not
encyclopedia becuase motive is not told by
informant yet PW3, the mother of the
deceased, has first time disclosed the
motive in her testimony that appellantKm.Sandhya Singh used to falsely allegate
her husband for molesting her. This motive
could not be proved by prosecution by way
of any evidence. Moreover, in our opinion,
this is not a strong motive, which prompted
the appellants to commit the murder of
small
child
and
the
argument
of
prosecution cannot be accepted that it
appears a case of sacrifice because no
evidence in this regard i s on record and
nobody has said it. Hence, another link of
chain of circumstances breaks.

23. The testimony of PW5-Sangita
Devi also cannot be relied by us. She has
deposed that appellant-Km.Sandhya Singh
made extra-judicial confession before her.
We cannot believe her testimony for the
reason because if it was so it was not
expected from her to remain silent till the
recovery of dead-body of the boy because
she was his aunt (bua). Moreover, this is
settled law with regard to extra-judicial
confession that it should be made before a
person, who is in position to save or help
the accused making confession. In this
case, the aunt of deceased-child was not in
a position to save or help the appellants so
there was no question for any of the
appellants to confess before PW5.

24. In the case in hand, prosecution
has measurably failed to prove the motive
behind the crime as well as the fact of 'lastseen' evidence. The testimony of PW5Sangita
Devi does not
also
inspire
confidence with regard to the fact of extrajudicial confession. Hence, the prosecution
has failed to prove the circumstances of the
case. There is no circumstantial evidence in
this case, which can exclude every possible
hypothesis and can prove that the offence is
committed only by appellants and none
else. Hence, the chain of circumstantial
evidence is not complete so as to point out
that these are the appellants only who have
committed the offence. Hence, the evidence
produced by prosecution cannot be used as
a link to complete the chain, because the
chain of evidence is broken on the point of
motive, theory of last-seen and extrajudicial confession. Moreover, it is settled
law that if two views are possible on the
1 All. Jamshed Vs. State of U.P.
965
evidence adduced by the prosecution in the
case; one pointing to the guilt of the
accused and the other to his innocence, the
view favouring the accused should be
adopted. This principle has become more
relevant where the prosecution seeks to
establish the guilt of the accused by
circumstantial evidence.

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

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

BEFORE

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

Criminal Appeal No. 6649 of 2006

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

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

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

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

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

Criminal Appeal partly allowed. (E-3)

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

1. This Criminal Appeal under
Section 374 (2) Cr.P.C. has been preferred
by appellant/accused, Jamshed, against the
judgment and order dated 26.10.2006,
passed by Additional Session Judge, (Fast
Track Court), Chandauli, in Session Trial
No. 29 of 2022 (State vs. Jamshed)
whereby, he has been convicted and
sentenced, under Section 302 I.P.C. to