# Mahanta Bhar (In Jail) v. State

- **Citation:** (2019) 1 ILRA 571
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-27
- **Bench:** Bachchoo Lal, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahanta-bhar-in-jail-v-state-44526
- **Pages:** 13

## Headnote

Code
sections
302,299,300,304
-
recognizes
three
degrees of culpable homicide namely, (1)
culpable homicide of the first degree, a
gravest form of culpable homicide which
is defined under section 300 as murder,
(2) culpable homicide of the second
degree, a lower or lessor form of
homicide not amounting to murder as
defined in section 299, punishable under
the first part of section 304 and (3)
culpable homicide of the third degree,a
lowest
type
of
culpable
homicide,
punishable under the second part of
section 304. (Para35)
B. Distinction between section 299 and
section 300 - Distinction has been based
on the the degree of probability of the
consequence of the criminal act. Where
death is the most probable result and is
caused with intention to cause death,
the offence is murder, and where it is
probable result, it is culpable homicide.

Murder may become culpable homicide not
amounting to murder if circumstances exist to
bring the murder within any of the five
exceptions to section 300 IPC. Academically,
the distinction appears to be easy, but, when
comes to factual matrix and is required to be
determined
on
the
basis
of
objective
assessment of fact and evidence, the task is
hard and a lot depends upon the sixth sense
572 INDIAN LAW REPORTS ALLAHABAD SERIES
of the presiding judge who has been asked to
give a decision. (Para-28)

Held:- The above classification is based on factors
such as the degree of intention, surrounding
circumstances in which death was caused,
weapon used, influence of apprehension from
severe beating from which the accused wanted to
escape, causing injury exceeding the right of
private defence, presence of premeditation and
the like. A person has a right to defend himself
and his own person and for that purpose he can
use and cause injury as much as it is necessary.
But if he exceeds his right and causes more injury
than necessary and if death of such person
results, the same is culpable homicide not
amounting to murder (Para-36)

C. Section 102 IPC - Provides for
commencement
and
continuance
of
private defence of the body 'as soon as a
reasonable apprehension of danger to
the body arises from an attempt or
threat' and it continues 'as long as
apprehension of danger to the body
continues. (Para 44)

CHRONOLOGICAL LIST OF CASES CITED: -

1: - AIR 1977 SC 45, State of AP vs
Rayavarapu Punnayya

2: - (2006) 7 SCC 391, Pappu vs State of MP

3: - (2009) 14 SCC 771, Jagriti Devi vs State of
HP

4: - (2013) 12 SCC 10, Chenda alias Chanda
Ram vs State of Chhatisgarh

5: - (2018) 4 SCC 329, Lavghanbha Devjibhai
Vasava vs State of Gujarat

6: - AIR 2019 SC 2120, Govind singh vs State
of Chhattisgarh

7: - AIR 2019 SC 2264, Rambir vs State of
NCT

8: - AIR 1951 Punjab& Haryana 137, Kirpal
Singh vs State
9: - (1973) 1 SCC 347, Deo Narain vs State of
UP (E-7)

## Text

_Characters 0–39,923 of 42,554. This is a partial read: ask again with offset=39923 for what follows._

1 All. Mahanta Bhar Vs. State
571
same village rather of the village
Jhanjhana, Bareilly and was falsely
implicated. Submission is not acceptable
as the identity of Rajendra was already
known to the eye-witnesses. Moreover he
was also identified in the court.

19. The argument that as the weapon
of assault and empty cartridges have not
been recovered and serological report not
obtained by the prosecution, suffice to
mention that recoveries and the serologist
report would have further strengthen the
prosecution case. No doubt there are lapses
in the investigation but it cannot be a
ground to reject the entire prosecution
case.

20. The testimonies of ocular
witnesses are reliable and trustworthy
corroborated by medical evidence. We do
not find any material contradictions or
discrepancies in their evidence which raises
any doubt. The Learned trial court rightly
convicted the appellants. The appeal is bereft
of merit and is liable to be dismissed.

21. The appeal is dismissed. Appellants
are on bail. Their bail bonds are cancelled,
they be taken into custody forthwith to serve
out the remaining sentence.

22. The office is directed to transmit
back lower court records with a copy of
judgment and order of this Court for
immediate
compliance
under
the
intimation to this court within 2 months.
--------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.08.2019

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 89 OF 1994

Mahanta Bhar ...Appellant (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellant:
Sri Shiv Shankar Pandey, Sri Kamal
Krishna, Sri Pradeep Kumar Rai, Sri Vinay
Saran.

Counsel for the Opposite Party:
A.G.A.
A.
Indian
Penal
Code
sections
302,299,300,304
-
recognizes
three
degrees of culpable homicide namely, (1)
culpable homicide of the first degree, a
gravest form of culpable homicide which
is defined under section 300 as murder,
(2) culpable homicide of the second
degree, a lower or lessor form of
homicide not amounting to murder as
defined in section 299, punishable under
the first part of section 304 and (3)
culpable homicide of the third degree,a
lowest
type
of
culpable
homicide,
punishable under the second part of
section 304. (Para35)
B. Distinction between section 299 and
section 300 - Distinction has been based
on the the degree of probability of the
consequence of the criminal act. Where
death is the most probable result and is
caused with intention to cause death,
the offence is murder, and where it is
probable result, it is culpable homicide.

Murder may become culpable homicide not
amounting to murder if circumstances exist to
bring the murder within any of the five
exceptions to section 300 IPC. Academically,
the distinction appears to be easy, but, when
comes to factual matrix and is required to be
determined
on
the
basis
of
objective
assessment of fact and evidence, the task is
hard and a lot depends upon the sixth sense
572 INDIAN LAW REPORTS ALLAHABAD SERIES
of the presiding judge who has been asked to
give a decision. (Para-28)

Held:- The above classification is based on factors
such as the degree of intention, surrounding
circumstances in which death was caused,
weapon used, influence of apprehension from
severe beating from which the accused wanted to
escape, causing injury exceeding the right of
private defence, presence of premeditation and
the like. A person has a right to defend himself
and his own person and for that purpose he can
use and cause injury as much as it is necessary.
But if he exceeds his right and causes more injury
than necessary and if death of such person
results, the same is culpable homicide not
amounting to murder (Para-36)

C. Section 102 IPC - Provides for
commencement
and
continuance
of
private defence of the body 'as soon as a
reasonable apprehension of danger to
the body arises from an attempt or
threat' and it continues 'as long as
apprehension of danger to the body
continues. (Para 44)

CHRONOLOGICAL LIST OF CASES CITED: -

1: - AIR 1977 SC 45, State of AP vs
Rayavarapu Punnayya

2: - (2006) 7 SCC 391, Pappu vs State of MP

3: - (2009) 14 SCC 771, Jagriti Devi vs State of
HP

4: - (2013) 12 SCC 10, Chenda alias Chanda
Ram vs State of Chhatisgarh

5: - (2018) 4 SCC 329, Lavghanbha Devjibhai
Vasava vs State of Gujarat

6: - AIR 2019 SC 2120, Govind singh vs State
of Chhattisgarh

7: - AIR 2019 SC 2264, Rambir vs State of
NCT

8: - AIR 1951 Punjab& Haryana 137, Kirpal
Singh vs State
9: - (1973) 1 SCC 347, Deo Narain vs State of
UP (E-7)

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated 22.11.1993 passed by Ist Additional
Sessions Judge, Ballia in Sessions Trial
No. 157 of 1992, State Vs. Mahanta Bhar,
arising out of crime no. 252 of 1992,
under section 302 IPC, PS Sikandarpur,
District Ballia convicting and awarding
the appellant life imprisonment under
Section 302 IPC.

2. Brief facts of the case are that the
informant Bijuli Yadav lodged an FIR in
respect of incident dated 23.4.1992 stating
that his elder brother Interdeo Yadav has
a daughter namely Chinta who had illicit
relationship with accused Mahantha Bhar
of the same village for the last some time.
The informant and his family asked
Chinta and the accused several times to
stop this relationship and scolded both of
them. This fact was known to all the
villagers. On the date of incident
informant and other family members were
cutting sugarcane crop in the field and
about 12.00 AM in the noon while they
were returning home with Chandradeo
Yadav, nephew Ramawadh, Hari Mohan
Yadav and Jagdhari and they reached at
'Soti' locating towards north of their
village, they saw Chinta and accused
Mahantha Bhar in the sugarcane field of
Punchdeo Mishra talking to each other. At
this sight all of them reached inside the
field and deceased Chandradeo caught
hold of accused Mahantha Bhar who took
out a knife and stabbed him with intention
to kill on the chest and stomach of
Chandradeo
two
or
three
times.
1 All. Mahanta Bhar Vs. State
573
Consequently, Chandradeo fell down on
the spot. Attempt was made to apprehend
and arrest the accused Mahantha Bhar,
but he ran away towards north. Accused
was chased for a distance but could not be
apprehended and escaped. Soon after the
incident, Chandradeo was being taken to
Sikandarpur
hospital
in
an
injured
condition but on the way he died.

3. The First Information Report was
got scribed by one Ashok Rai, and the same
was delivered by the informant and eye
witness Bijuli Yadav at police station
Bansdih on 23.4.1992 at 2 PM, on the basis
of which Case Crime No. 252 of 1992 under
Section 302 IPC was registered. The dead
body was taken into possession by police and
inquest report was prepared. Postmortem
was conducted on the next day. The
Investigating Officer investigated into the
offence, prepared site map and recorded the
statement of witnesses and submitted charge
sheet against the accused for the offence
under Section 302 IPC.

4. The learned Sessions Judge
framed charge against the accused under
Section 302 IPC, who denied the charge
and claimed trial.

5. The prosecution examined 8
witnesses in support. PW-1 Chinta (eye
witness), PW-2 Bijuli Yadav (informant
and eye witness), PW-3 Jagdhari Yadav
(eye witness) and PW-4 Hari Mohan
Yadav (eye witness) have stated about the
incident. PW-5 Dr. G. Kumaria has
proved the postmortem report. PW-6
Ashok Rai is scriber of written report.
PW-7 Constable Mansukh Yadav is the
witness of inquest inquest report. PW-8 SI
Suresh Chandra Shukla is IO of this case
and who has proved site map and charge
sheet.

6. The witnesses have proved the
prosecution documents which are written
report Ext. Ka-1 postmortem report, Ext.
Ka-2 inquest report, Ext. Ka-3 sample
seal, Ext Ka-4 sample seal, photo nash
Ext. Ka-5, Ext. Ka-7 police form no. 13,
and Ext. Ka-6 letter to SP for postmortem,
report by police to District Hospital Ext.
Ka-8, letter for postmortem examination
Ext. Ka-9 and Ext. Ka-10, site plan Ext.
Ka-11, memo of blood stained and plain
earth Ext. Ka-12, charge sheet Ext. Ka-13,
Chick FIR Ext. Ka-14, GD Ext. Ka-15
and report of Serologist Ext. Ka-16.

7. The statement of accused was
recorded under Section 313, Criminal
Procedure Code who has refused illicit
relationship with Chinta and has denied
that he was ever scolded by his family
members for the same. He has further
stated that he was not on spot nor he
inflicted any injury to the deceased by
knife and caused his death. He has also
stated he has been falsely implicated as he
belongs to labour class and did not give
his service to complainant side. He has
not adduced any evidence in defence.

8. After hearing learned counsel for
the parties, the learned trial court found
the accused-appellant guilty for the
offence under Section 302 IPC and passed
the impugned judgment convicting and
sentencing him for life imprisonment.

9. Aggrieved by the said order, the
accused-appellant has filed the present
criminal appeal and has challenged the
impugned judgment on the ground that
the same is against the evidence on record
and is not sustainable under law. The
learned trial court did not take into
consideration the circumstances which
falsify the prosecution story. The appellant
574 INDIAN LAW REPORTS ALLAHABAD SERIES
was a boy aged about 17 years and was alone,
therefore, under the circumstance, the appellant
could not inflict the injury to the deceased. It was
not possible for the accused-appellant to take
Chinta to sugarcane field forcibly in presence of
complainant and his family members who were
present in nearby field. He was falsely
implicated in this case. The sentence awarded is
too severe and not sustainable. The same is liable
to be set aside and the accused-appellant is
entitled for acquittal.

10. Heard Sri Vinay Saran, Senior
Advocate, appointed as Amicus Curiae,
assisted by Sri Pradeep Kumar, learned
counsel for the appellant, Sri L.D.
Rajbhar, learned A.G.A. for the State and
perused the record.

11. PW-2 Bijuli Yadav (informant
and eye witness) has stated on oath about
illicit relationship between accused and
PW-1 Chinta for which both were scolded
by him and family members. He has
further stated that on the date and time of
incident, he along with Chandradeo
Yadav, Hari Mohan Yadav and Jagdhari
were present on the spot when they saw
both accused and Chinta talking to each
other in sugarcane field. When they
reached there, the accused stabbed and
caused injuries by his knife on the chest
and abdomen of the deceased. While
Chandradeo was being taken to the
hospital, he died on the way. He and other
witnesses tried to apprehend the accused
after he caused injury to Chandraeo, but
he succeeded in running away from the
place. He got the written report scribed by
one Ashok Rai and the same was
delivered at the police station on the same
day.

13. PW-1 Chinta, has admitted the
fact of relationship with the accused and
has
stated
that
because
of
this
relationship, the family members were
having bitter feelings for her and the
accused. She has also admitted that on the
date and time of incident, she was with
the accused in the sugarcane field and
Chandradeo Yadav, Hari Mohan Yadav,
Jagdhari and Bijuli Yadav came there.
Chandradeo Yadav caught hold of the
accused whereupon he gave him twothree blows by his knife on his chest and
stomach. He sustained injuries and fell
down and the accused ran away from the
place.

14.

PW-3
Jagdhari
Yadav
(independent witness) who was present on
the
spot,
has
also
supported
the
prosecution version that at the time of
incident, he was there and he saw the
accused and Chinta in the sugarcane field
and when they reached there, accused
caused injury to Chandradeo Yadav on his
chest and stomach by his knife because of
which he died while taking to the hospital.

15. PW-4 Hari Mohan Yadav is
another eye witness who has also
supported the prosecution version and has
said that he was present on the spot and
they found Chinta and accused in the
sugarcane
field
alone
and
when
Chadradeo Yadav caught hold of the
accused, the accused inflicted injury by
his knife and because of the injuries
sustained, Chandradeo Yadav died.

16. P.W. 5- Dr. G. Kumaria, who
had conducted postmortem on 24.4.1992
at about 3 PM, found followin ante
mortem injuries on the dead body of the
deceased:

(I) Incised penetrating wound
not opened 1.5 c.m. X 1 c.m. Cavity deep
1 All. Mahanta Bhar Vs. State
575
on left side chest, doliquily placed 14 c.m.
From mid line chest and 16 c.m. From left
clavical bone. Edge of wound clean cut.
Clotted blood present around wound.
Outer angle of wound is sharp and inner
angle towards mid line is slightly curved.

(II) Incised penetrating wound
1.5 c.m. X 1 c.m. Abdominal cavity deep,
on left side upper abdomen, obliquely
placed, 8 c.m. From mid line abdomen
and 29 c.m. From left clavicle edge of
wound situated clean cut. Clotted blood
present around wound. Outer angle of
wound is sharp and inner angle of mid
line is slightly curved. The cause of death
was due to shock and hemorrhage.

Internal Examination

Below injury no 1 on chest,
internal mussel between 6 and 7 ribs
incised and 7th rib on left side incised
below injury no 1. Left pleura was incised
below injury no 1 and left lung was
punctured below injury no 1, in the left
side of chest, blood clots found with 750
ml fluid. Walls in the left side of abdomen
was incised below injury no 2 and spleen
was punctured. The cause of death was
shock and hemorrhage due to ante
mortem injuries. According to doctor,
injuries might have been caused by knife
and the injuries were sufficient to cause
death in ordinary course. The death was
possible on 23.4.1992 at about 1 PM.
Nothing
has
come
in
the
crossexamination in favour of defence.

17. PW-6 Ashok Rai, who is
inscriber of written report has proved that
he inscribed the written report about the
incident.

18. PW-7 Constable Mansukh
Yadav has proved the chick FIR and GD
Report.

19. PW-8 SI Suresh Chnadra Shukla
narrated the process of investigation and
has proved the site map and the charge
sheet.

20. The learned counsel Sri Vinay
Saran, Senior Advocate, appointed as
Amicus Curiae has submitted that even if
the fact witnesses are totally believed, the
case does not come in the purview of the
offence of murder and the maximum
offence for which the appellant could be
convicted
was
for
simple
culpable
homicide or culpable homicide not
amounting to murder. Learned AGA has
submitted that accused-appellant was
having knife with him and that shows his
intention to cause death and by knife he
stabbed on the chest and abdomen of the
deceased which are vital part of the body
and consequently while he was taken to
the hospital, he died. He has further
submitted that death of deceased has
occurred because of injuries caused by the
accused-appellant.

21. In the backdrop of rival
arguments, the evidence leveled on record
needs to be analyzed in order to determine
whether the offence was committed by the
accused and whether the offence which
was committed by the accused-appellant
was culpable homicide or murder.

22. From the perusal of record, it is
clear that the incident took place on
23.4.1992 at 12 PM and on the same day
at 2 PM, FIR was lodged by informant by
giving a written report in police station by
Bijuli who is real brother of deceased and
an eye-witness. The police station is 4 km
away
from
place
of
occurrence.
Considering the fact that the deceased was
injured and died on the way while being
taken to hospital and the FIR was lodged
576 INDIAN LAW REPORTS ALLAHABAD SERIES
in two hours on the same day from the
time of incident, the learned Sessions
Judge correctly concluded that there was
no delay in lodging FIR.

23. The dead body was taken into
possession by police and inquest report
was duly prepared after appointing five
witnesses to the inquest proceeding.
Thereafter, the dead body was duly sealed
and, along with necessary papers, was
taken to DistrictHospital for postmortem
where postmortem was conducted by the
doctor who has proved the report as
prosecution witness. The postmortem
report shows that the deceased died due to
two incised wound, one on chest and
other on abdomen of the deceased and
according to doctor the death of deceased
must have occurred on 23.4.1992 at about
1 PM because of injuries caused by knife
which were sufficient to cause death in
ordinary course.

24. Three prosecution witnesses
have stated that the incident took place in
their presence in the sugarcane field of
one Panchdev Misra. IO prepared site
map during investigation and the place of
occurrence has been shown in that
sugarcane field. All the eye witnesses
have affirmed on oath that the accusedappellant caused the injuries to the
deceased by knife which he was having at
the time of incident. The witnesses were
cross-examined, but the defence has not
been able to bring out anything adverse to
prosecution or favourable to the defence.
Clearly, the prosecution succeeded in
bringing home the charge leveled against
the accused and it has been fully
established that the accused on the date,
time and place caused injuries to the
deceased by knife and consequently he
died.

25. Submission of learned counsel
for the accused-appellant is that there was
no intention of accused-appellant to cause
death of the deceased and from the fact
and evidence available on record, it
appears that he was caught with Chinta in
the sugarcane field and finding himself
suddenly surrounded by the witnesses and
also because the deceased caught hold of
him, the accused-appellant having knife
stabbed the deceased and because of that
injuries, he died. He has also submitted
that this case does not come within the
purview of murder and the fact shows that
it comes within the purview of culpable
homicide and culpable homicide not
amount to murder.

26. Section 299 of the Indian Penal
Code defines culpable homicide as
follows:

"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.

Explanation 1.-A person who
causes bodily injury to another who is
labouring under a disorder, disease or
bodily infirmity, and thereby accelerates
the death of that other, shall be deemed to
have caused his death.

Explanation 2.-Where death is
caused by bodily injury, the person who
causes such bodily injury shall be deemed
to have caused the death, although by
resorting to proper remedies and skilful
treatment the death might have been
prevented.

Explanation 3.-The causing of
the death of child in the mother's womb is
1 All. Mahanta Bhar Vs. State
577
not homicide. But it may amount to
culpable homicide to cause the death of a
living child, if any part of that child has
been brought forth, though the child may
not have breathed or been completely
born."

27. Section 300 of the Indian Penal
Code
defines
murder
and
culpable
homicide not amounting to murder as
follows:

"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-

2ndly. - 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

3rdly. - 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-

4thly. - 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 selfcontrol 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.

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, 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.

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."
578 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Several times the courts in India
has outlined the distinction between the
two offences and the thrust of the
distinction has been based on the the
degree of probability of the consequence
of the criminal act. Where death is the
most probable result and is caused with
intention to cause death, the offence is
murder, and where it is probable result, it
is culpable homicide. The murder may
become culpable homicide not amounting
to murder if circumstances exist to bring
the murder within any of the five
exceptions
to
section
300
IPC.
Academically, the distinction appears to
be easy, but, when comes to factual
matrix and is required to be determined
on the basis of objective assessment of
fact and evidence, the task is hard and a
lot depends upon the sixth sense of the
presiding judge who has been asked to
give a decision.

29. In State of AP vs Rayavarapu
Punnayya, AIR 1977 SC 45, the
Supreme
Court
made
following
observation:

" .... 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. 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. Proof of such causal
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, Penal Code is
reached. This is the stage at which the
court should determine whether the facts
proved by the prosecution brings the case
within the ambit of any of the four clauses
of the definition of "murder"contained in
section 300. If the answer to this question
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.
If this question is found in the positive,
but the case comes within 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, Penal
Code."

30. The above observation has been
referred in subsequent decisions and the
same holds the field as a guideline in order to
appreciate and understand the distinguishing
features of the offence of 'murder,' 'culpable
homicide' and 'culpable homicide not
amounting to murder.' In every murder there
is culpable homicide and on existence of
certain facts as mentioned in five exceptions
to section 300 IPC, a murder may become
culpable homicide not amounting to murder,
and the difference between the two is the
degree of probability and certainty. Where
death is the likely result, it is culpable
homicide and where it is most obvious and
certain result, the offence is murder and if
such murder is covered by any of the
exceptions to section 300, the same is
punishable under section 304 and not under
section 302 of the Indian Penal Code.

31. In Pappu vs State of MP,
(2006) 7 SCC 391, the Supreme Court
almost
exhaustively
dealt
with
the
1 All. Mahanta Bhar Vs. State
579
parameters of Exception 4 to section 300
and held that the same can be invoked if
death is caused 1. without premeditation;
2. in a sudden fight; 3. without the
offender having taken undue advantage or
acting in a cruel or unusual manner; and
4. the fight must have been with the
person killed. It was remarked,

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

31. In Jagriti Devi vs State of HP,
(2009) 14 SCC 771, it was held that the
expression 'intention' and 'knowledge'
postulate the existence of a positive mental
attitude. It was further held that when and
if there is intent and knowledge, then the
same would be a case under first part of
section 304 and if it is only a case of
knowledge and not intention to cause death
by bodily injury, then the same would be a
case of second part of section 304.

32. In Chenda alias Chanda Ram
vs State of Chhatisgarh, (2013) 12 SCC
10, pointing out that 'culpability depends
on the knowledge, motive and the manner
of the act of the accused,' the Supreme
Court
referring
to
Rayavarapu
Punnayya
(supra),
converted
the
conviction of accused from section 302
IPC to section 304 IPC taking into
consideration
the
following
circumstances:

"There
is
no
evidence
or
previous enmity. The incident has taken
place on the spur of the moment. There is
no evidence regarding the intention
behind the fatal consequence of the blow.
There was only one blow. The accused is
young. There was no premeditation. The
evolution of the incident would show that
it was in the midst of a sudden fight.
There is no criminal background or
adverse history of the appellant. It was a
trivial quarrel among the villagers on
account of a simple issue. The fatal blow
was in the course of a scuffle between two
persons. There has been no other act of
cruelty or unusual conduct on the part of
the appellant. The deceased was involved
in the scuffle in the presence of his wife
and he had been actually been called
upon by her to the spot.... ."

33. In Lavghanbha Devjibhai
Vasava vs State of Gujarat, (2018) 4
SCC 329, the Supreme Court summarized
the
parameters
to
be
taken
into
consideration while deciding the question
as to whether a case falls under section
302 or section 304 IPC as follows:

"(a) the circumstance in which
the incident took place; (b) the nature of
weapon used; (c) whether the weapon was
carried or taken from spot; (d) whether
the assault was aimed on vital part of
body; (e) the amount of the force used; (f)
whether the deceased participated in the
sudden fight; (g) whether there was any
previous enmity; (h) whether there was
any sudden provocation; (I) whether the
attack was in the heat of passion; and
(whether the person inflicting injury took
any undue advantage or acted in the cruel
or unusual manner.)"

34. In Govind singh vs State of
Chhattisgarh, AIR 2019 SC 2120 and
Rambir vs State of NCT, Delhi, AIR
2019 SC 2264, where the appellant was
convicted for the offence under section
580 INDIAN LAW REPORTS ALLAHABAD SERIES
302 IPC, the Supreme Court, finding that
there was no premeditation on the part of
the accused and the incident took place in
sudden quarrel, modified the offence into
that of section 304 IPC and reduced the
sentence was accordingly.

35. On the basis of above
discussion, to put it in simple terms, as
outlined
in
Rayavarapu
Punnayya
(supra), it is clear that the Indian Penal
Code recognizes three degrees of culpable
homicide namely, (1) culpable homicide
of the first degree, a gravest form of
culpable homicide which is defined under
section 300 as murder, (2) culpable
homicide of the second degree, a lower or
lessor form of homicide not amounting to
murder as defined in section 299,
punishable under the first part of section
304 and (3) culpable homicide of the third
degree, a lowest type of culpable
homicide, punishable under the second
part of section 304.

36. It is held that the above classification
is based on factors such as the degree of
intention, surrounding circumstances in which
death was caused, weapon used, influence of
apprehension from severe beating from which
the accused wanted to escape, causing injury
exceeding the right of private defence, presence
of premeditation and the like. A person has a
right to defend himself and his own person and
for that purpose he can use and cause injury as
much as it is necessary. But if he exceeds his
right and causes more injury than necessary
and if death of such person results, the same is
culpable homicide not amounting to murder.

37. Now coming to the facts of
present case where the accused was
having affairs and sexual relation with a
daughter of complainant family for which
both were scolded by family members but
it did not create any impact on them.
Naturally, as per evidence on record, the
whole family must have bitterness for
accused and have been annoyed with him,
as both had no intention to withdraw from
each other's company and they continued
in relationship. On the date of incident
both were seen and found alone in the
sugarcane field by deceased and other
family members.

38. The daughter of the deceased has
been examined as PW-1 who has admitted
in her statement before court about her
relationship with the accused and that she
was with the accused on the date of
incident in the sugarcane field where the
incident took place. She has also admitted
that before they were seen by family
members, both had sex and soon after that
the family members reached there. She
has stated that the deceased caught hold
of the accused by one hand and gave
beating to her by other hand. The accused
was surrounded by Jagdhari, Bijuli,
Dharmdeo,
Indradeo,
Chandradeo,
Ramawadh and Harimohan, all carrying
lathi (bamboo) in their hands. She has
also stated that her mother, father, uncles
and all family members used to prevent
her from meeting and having any sort of
relationship
with
accused,
but
she
continued meeting with him. She has said
that prior to incident, the family members
did not see her in physical relationship
with the accused. The deceased raised his
hand to hit the accused and then the
accused stabbed him by his knife.

39. PW-2 Bijuli has stated that while
coming back from their field, near the
sugarcane field of Panchdeo Misra, they
heard voice of both Chinta and accused.
Chandradeo entered in the field first and
behind him they all rushed in the
1 All. Mahanta Bhar Vs. State
581
sugarcane field. They all rushed into the
field together. They gave two to four slaps
to Chinta. PW-3 Jagdhari has stated that
they entered silently into the sugarcane
field where both Chinta and accused were
present and thereafter made noise. Both
were trying to keep there wearings in
order and then Chandradeo caught hold of
the accused. PW-4 Harimohan has stated
that they all rushed into the field and
Chandradeo caught hold of accused and
scolded him for spoiling their reputation.

40. Thus, from the statement of all
the four witnesses, it is clear that both
Chinta and accused were caught red
handed in the sugarcane field if not
during, immediately after they had sex
with each other. Chinta was slapped and
deceased Chandradeo caught hold of
accused and tried to slap him. All were
carrying lathi and rushed into the field
together. All were family members and
naturally in that situation they all must
have been enough furious causing alarm
in the mind of the accused that he has
been caught red handed with a daughter
of family and he would be given good
beat by them.

41. Since the accused had sex with
her love-mate soon before they were
caught, the passionate impact thereof
must have been present in him and before
him she was being slapped and he was
likely to be beaten. Both the factors if
taken together must have influenced the
mind of the accused to a great deal. That
his love-mate was being slapped before
him certainly has a provoking impact
whereas the fact that he was surrounded
by the family members with lathi in their
hands and they were shouting and
scolding must have created a natural
apprehension in his mind that he has been
caught red handed by family members
with the daughter of the family in
objectionable condition and they will not
leave him easily and they will cause
bodily
harm
in
terms
of
injuries.
Therefore, his endeavor must have been
to get rid of situation anyhow. He was
having a knife and therefore he caused
injuries to Chandradeo who had caught
hold of him and had raised his hand to hit
him and he was enough close in terms of
distance to accused. Thereafter, he did not
stay to see the result and escaped away so
quickly that despite the complainant side
was 6 in numbers, they could not get him.

42. In Kirpal Singh vs State, AIR
1951 Punjab & Haryana 137, it has been
observed:

"To constitute a premeditated
killing, it is necessary that the accused
should have reflected with a view to
determine whether he would kill or not;
and that he should have determined to kill
as the result of that reflection; that is to
say, the killing should be a premeditated
killing upon consideration and not a
sudden
killing
under
the
sudden
excitement and under impulse of passion
upon provocation given at the time or so
recently before as not to allow time for
reflection. Such premeditation may be
established by direct or circumstantial
evidence, such as previous threats,
expression
of
ill
feelings,
acts
of
preparation to kill; such as procuring a
deadly weapon or selecting a dangerous
weapon in preference to one less
dangerous, and by the manner in which
the killing was committed. For example,
repeated shots, blows or other acts of
violence
are
sufficient
evidence
of
premeditation.
Premeditation
is
not
proved from the mere fact of a killing by
the use of a deadly weapon but must be
582 INDIAN LAW REPORTS ALLAHABAD SERIES
shown by the manner of the killing and
the circumstances, under which it was
done or from the other facts in evidence."

43. It is pertinent to mention that it was
not a case of that kind that after being beaten,
the accused came prepared with knife and
caused injuries. There is no evidence on
record to show that the accused ever gave
any threatening on earlier occasion to the
complainant side to cause any harm to them.
Thus, there appears to be no premeditation
on the part of accused. Death has not been
caused in unusual or cruel manner. There
appears to be no enmity on the part of
accused, whereas, for the complainant side,
there appears to be every possibility to catch
him red handed and to give him good lesson
for the misdeed of having relationship with
the daughter of the family.

43. There appears to be no criminal
back ground of the accused and at the
time of incident he was enough young, a
boy of 17 to 18 years in age as alleged in
the memo of appeal. The facts and
circumstances of the case reveals that the
murder was caused without premeditation
and at the spur of the moment without any
criminal
intent
to
commit
murder.
Moreover, in the circumstances where the
accused was surrounded by 6 family
members of complainant side, each
carrying lathi in hand, naturally angry
finding the accused in the sugarcane field
in objectionable condition and prepared to
give lesson to accused. In such situation, a
right of private defence also accrued to
the accused against the possible bodily
harm which was likely to be caused to
him by the complainant side.

44. Section 102 IPC provides for
commencement and continuance of private
defence of the body 'as soon as a reasonable
apprehension of danger to the body arises
from an attempt or threat' and it continues
'as long as apprehension of danger to the
body continues.' At the cost of repetition, it is
mentioned that the accused was alone
surrounded by six persons and deceased had
caught hold of him and has raised his hands
to hit him after slapping his love mate before
him. Therefore, a reasonable apprehension of
bodily harm to accused was existing. It
cannot be countered by saying that no such
harm was caused to him. It has been
remarked by the Supreme Court in Deo
Narain vs State of UP, (1973) 1 SCC 347
that 'to say that a person can only claim the
right to use force after he has sustained a
serious injury by an aggressive wrongful
assault is a complete misunderstanding of
the law embodied in section 102, IPC.'

45. On the basis of above discussion,
we are of the view that on facts, the present
case was covered under the Exceptions 1, 2
and 4 to section 300, IPC as the death was
caused by accused under grave and sudden
provocation, in excess of the right of private
defence of his person without premeditation
and in the heat of passion upon a sudden
quarrel and without the accused taking undue
advantage or acting in a cruel or unusual
manner without premeditation. As such the
learned trial court committed illegality in
convicting the accused for the offence of
murder under section 302, IPC instead of
convicting him for the offence of culpable
homicide not amounting to murder under
Part I of section 304, IPC.

46. In view of the above, we convert
the conviction from section 302, IPC to
section 304, IPC part I and accordingly
modify the sentence awarded to the
accused-appellan Mhantat Dhar from
life imprisonment to a sentence of
rigorous imprisonment of 12 years and
1 All. Moti Vs. State
583
fine of Rs. 25000/- and in default, for an
additional imprisonment of six months.

47. With the above modification,
this criminal appeal is finally disposed of.

48.