# Mahesh & Ors v. State of U.P

- **Citation:** (2022) 9 ILRA 1439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-06
- **Case number:** Criminal Appeal No. 296 of 1990
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahesh-ors-v-state-of-u-p-49018
- **Pages:** 12

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code,1860 - Sections 34, 300, 300(4),
302, 304 & 307 - Arms Act, 1959 -
Sections 25 & 27 - Appeal against conviction
and Sentence - complaint - FIR - offence of
murder - appellant taken plea that they have
been falsely implicated due to enmity and
further trial court disbelieved about recovery of
weapons of offence - Appreciation of evidence -
evidence on record established that feud ensued
over the alleged damage to the boundary of the
field
and
after
exchange
of
abuses,
convict/appellants went to the house and came
back
with
planning,
armed
with
firearm
weapons, fired upon the complainant's side
wherein moth of complainant died - court, held
that, where there is direct evidence of crime is
exist and same were also corroborated by the
medical evidence - the plea of appellants has no
merits - appeal deserve to be dismissed. (Para
22, 24)

Appeal dismissed. (E-11)

List of Cases cited:

## Text

9 All. Mahesh & Ors. Vs. State of U.P.
1439
remain unanswered, as has been noticed
above.

38. Anomaly in the prosecution version
with regard to the time when police was
informed of the offence; inconsistency in the
statement of prosecution witnesses about the
time of lodging of FIR; the source of
knowledge to PW-2 about murder of
deceased and throwing his body in a plastic
sack in the field of Shyam Narayan Pandit
early in the morning; who had seen/spotted
the dead body and when; conduct of accused
appellant in accompanying PW-1 and PW-2
to police station for lodging the report
knowing well that his guilt is known to them;
inconsistency in the stand of PW-1 and PW-2
about the time when dead body was found
etc. etc. remains unanswered. Possibility of
existence of an alternative hypothesis thus
cannot be ruled out and it cannot be said that
chain of events lead only to hypothesis of
guilt on part of accused appellant.

39. Trial court while holding the
prosecution to have proved the guilt of
accused appellant beyond reasonable doubt
has not noticed the anomalies, referred to
above, in the prosecution story. Rather, the
trial court has brushed aside such issues by
observing that the prosecution version is not
rendered unreliable on such grounds.

40. In view of the aforesaid discussions
we find ourselves unable to accept the view
taken by the trial court that the prosecution
has succeeded in proving the guilt of accused
appellant beyond reasonable doubt on the
basis of circumstantial evidence placed on
record by the prosecution and that the chain
of events leads only to hypothesis of guilt of
accused appellant. It is, otherwise, settled that
mere suspicion, howsoever strong, cannot be
a ground for convicting the accused in the
absence of cogent evidence pointing to the
guilt of accused appellant beyond reasonable
doubt.

41. We, therefore, have no hesitation in
coming to the conclusion that prosecution has
failed to prove the guilt of accused appellant
beyond reasonable doubt. The accused
appellant is thus held entitled to the benefit of
doubt and consequently, this appeal succeeds.

42. Accordingly, this appeal succeeds
and is allowed. Conviction and sentence of
the appellant Suresh Viyar, vide impugned
judgment and order dated 09.09.2002, passed
by the Special Judge, S.C./S.T. Act, Mirzapur
in Session Trial No.276 of 2001, under
Sections 302, 201 IPC arising out Case Crime
No.13 of 2001, Police Station Ahraura,
District Mirzapur is hereby set aside.
Appellant is acquitted of the charges noticed
above. Since the appellant has been enlarged
on bail on 25.10.2016 as such his sureties and
bonds shall stand discharged.

43. Learned Amicus Curiae has ably
assisted the Court in deciding the appeal and
we fix a sum of Rs.15,000/- as remuneration
payable to him by the High court Legal
Service Authority.
----------
(2022) 9 ILRA 1439
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 296 of 1990

Mahesh & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
1440 INDIAN LAW REPORTS ALLAHABAD SERIES
Mr. Brij Mohan Sahai

Counsel for the Opposite Party:
Mr. Chandra Shekhar Pandey, A.G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 313 - Indian Penal
Code,1860 - Sections 34, 300, 300(4),
302, 304 & 307 - Arms Act, 1959 -
Sections 25 & 27 - Appeal against conviction
and Sentence - complaint - FIR - offence of
murder - appellant taken plea that they have
been falsely implicated due to enmity and
further trial court disbelieved about recovery of
weapons of offence - Appreciation of evidence -
evidence on record established that feud ensued
over the alleged damage to the boundary of the
field
and
after
exchange
of
abuses,
convict/appellants went to the house and came
back
with
planning,
armed
with
firearm
weapons, fired upon the complainant's side
wherein moth of complainant died - court, held
that, where there is direct evidence of crime is
exist and same were also corroborated by the
medical evidence - the plea of appellants has no
merits - appeal deserve to be dismissed. (Para
22, 24)

Appeal dismissed. (E-11)

List of Cases cited:

1. St. of Uttarakhand Vs Sachendra Singh
Rawat, (2022) 4 SCC 227,

2. Jangaliya & ors. Vs St. of U.P., 2022 SCC
OnLine All 356.

(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This criminal appeal has been
preferred by the appellants against the
judgment and order dated 03.05.1990
passed by Special Judge, Unnao in Sessions
Trial No.602 of 1985 (State vs. Mahesh and
Others) arising out of Case Crime No.183
of 1985, under Sections 302/34, 307/34 of
the Indian Penal Code, (in short I.P.C.),
Police Station Fatehpur Chaurasi, District
Unnao and Sessions Trial No.67 of 1985
(State vs. Santosh) arising out of Case
Crime No.184 of 1985, under Sections
25/27 of Arms Act, Police Station Fatehpur
Chaurasi, District Unnao.

2. The appellant No.1 Mahesh died
during the pendency of the appeal and his
appeal was abated vide order dated
04.04.2022, now this appeal survives only
for the appellants Santosh and Ashok.

3. Shorn of unnecessary details, the
facts necessary for disposal of this appeal
are as under:-

A First Information Report (in
short F.I.R.) was registered at Case Crime
No.183 of 1985 on 03.11.1985 at 22:30
hours at Police Station Fatehpur Chaurasi,
District Unnao on the basis of written
report submitted by the complainant Ganga
Ram. It was stated in the written report that
on 03.11.1985 at about 3 O'Clock during
the day, the complainant and his uncle
Dayal were standing at front door of their
house. His uncle Dayal came back after
ploughing his field. Mahesh, Santosh and
Ashok came there and said to Dayal that he
(Dayal) had ploughed the boundary of their
field. On this his uncle Dayal replied that
he did not plough over their boundary and
if they had any doubt then they can get it
measured. Adjoining to the field of the
complainant there is a field of Devi Charan
and these people (accused persons) were
ploughing the field of Devi Charan and
they were complaining about the boundary
of the same field. Thereafter these persons
asked to accompany them to the field. On
this the complainant and his uncle Dayal
accompanied these persons to the field and
all were inspecting the boundary. At the
same time, these people started hurling
abuses, and the complainant and people of
9 All. Mahesh & Ors. Vs. State of U.P.
1441
his side also hurled abuses as a retort. Then
Mahesh, Ashok and Santosh left the place
challenging them (complainant' side) to
wait and they (accused) would come back
and see them. Saying this they started
running
towards
their
village.
After
sometime, at about 4 O'Clock Mahesh,
Ashok and Santosh armed with country
made short-guns came there and all the
three persons fired upon them (complainant
and his uncle). The pellets of those fires hit
the complainant and wife of one Bihari
who was working in her field nearby. His
uncle Dayal lied down in the field and
when they raised alarm and the villagers
heard the sound of firing, then to save them
the mother of the complainant Sukhrani,
Bahadur, Jiya Lal, Lallu Mallah, Shyam Lal
Gadariya and nephew of the complainant
namely Rakesh, aged about 6 years, rushed
to the spot. As soon as they all reached near
the complainant the accused persons fired
upon them also 6-7 times with the intention
to kill them. They all suffered pelletinjuries. Many persons came there raising
noise on which the accused persons ran
away. The condition of the mother of the
complainant was serious so he was carrying
her and also other injured persons on two
bullock-carts for treatment but his mother
died on the way. He reached the police
station with the dead body and other
injured persons for lodging the F.I.R.

4. After investigation, charge sheet
was submitted against Mahesh, Santosh
and Ashok. The Magistrate concerned
took cognizance and committed the case
for trial to the Sessions Court. The
Sessions
Court
framed
the
charges
against all the three accused persons
under Sections 302/34 and 307/34 of
I.P.C. All the accused persons denied the
charges and claimed to be tried.

5. In order to prove its case, the
prosecution examined 15 witnesses which
are as under:-

(i) P.W.1- Ganga Ram;

(ii) P.W.2- Shyam Lal;

(iii) P.W.3- Jiya Lal;

(iv) P.W.4- Dr. R.K. Sachan;

(v) P.W.5- Head Constable Ram
Asre Tiwari;

(vi) P.W.6- Dr. J.D. Jain;

(vii) P.W.7- Kailash;

(viii) P.W.8- SO Mr. Purshottam
Narayan Chaturvedi;

(ix) P.W.9- S.I. Ms. Komal Singh;

(x)
P.W.10-
Dr.
(Mr.)
S.K.
Saxena;

(xi) P.W.11- CP Mr. Tegaram
Yadav;

(xii) P.W.12- Omprakash Mani
Tripathi;

(xiii) P.W.13- Head Constable Mr.
Pratap Narain Singh;

(xiv) P.W.14- CP Mr. Mata Prasad
Awasthi and

(xv)
P.W.15-
CP
Mr.
Raghunandan Prasad.

6. Apart from above oral evidence
relevant documents were also proved as
exhibits which are as under:-
1442 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) Exhibit Ka-1- Written report;

(ii) Exhibit Ka-2- X-ray report of
Ganga Ram;

(iii) Exhibit Ka-3- X-ray report of
Smt. Sitala;

(iv) Exhibit Ka-4- X-ray report of
Shyam Lal;

(v) Exhibit Ka-5- X-ray report of
Lallu;

(vi) Exhibit Ka-6- X-ray report of
Bahadur;

(vii) Exhibit Ka-7- X-ray report
of Jiya Lal;

(viii) Exhibit Ka-8 X-ray report
of Rakesh;

(ix) Exhibit Ka-9 Chick F.I.R.;

(x) Exhibit Ka-10- Nakal Rapat
G.D. No.42, 22:30 hours dated 03.11.1985;

(xi)
Exhibit
Ka-11-
Nakal
Rapat G.D. No.4, 05:00 hours dated
04.11.1985;

(xii) Exhibit Ka-12- Letter for
medical examination of injured Lallu;

(xiii) Exhibit Ka-13- Letter for
medical examination of injured Ganga
Ram;

(xiv) Exhibit Ka-14- Letter for
medical examination of injured Bahadur;

(xv) Exhibit Ka-15- Letter for
medical examination of Jiya Lal;

(xvi) Exhibit Ka-16- Post mortem
examination
report
of
the
deceased
Sukhrani;

(xvii) Exhibit Ka-17- Inquest of
Sukhrani;

(xviii) Exhibit Ka-18- Photo
Laash (Police form No.379);

(xix) Exhibit Ka-19- Police form
No.13;

(xx) Exhibit Ka-20- Letter to
Reserve
Inspector
for
post
mortem
examination;

(xxi) Exhibit Ka-21- Letter to
Chief Medical Officer for conducting the
post mortem examination;

(xxii) Exhibit Ka-22- Recovery
memo;

(xxiii) Exhibit Ka-23- Site plan of
the place of occurrence;

(xxiv) Exhibit Ka-24- Recovery
memo of blood soaked in plain soil from
the place of occurrence;

(xxv) Exhibit Ka-25- Recovery
memo of two empty cartridges;

(xxvi) Exhibit Ka-26- Recovery
memo of arrest and recovery of weapon of
offence;

(xxvii) Exhibit Ka-27- Carbon
copy of G.D. No.35, 20:25 hours dated
04.11.1985;

(xxviii) Exhibit Ka-28- Charge
sheet;
9 All. Mahesh & Ors. Vs. State of U.P.
1443

(xxix) Exhibit Ka-29- Site plan
relating to recovery of weapons;

(xxx) Exhibit Ka-30- Prosecution
Sanction;

(xxxi) Exhibit Ka-31- Charge
sheet in Crime No.184 of 1985;

(xxxii) Exhibit Ka-32- Injury
report of Smt. Sitala;

(xxxiii) Exhibit Ka-33- Injury
report of Shyam Lal;

(xxxiv) Exhibit Ka-34- Injury
report of Rakesh;

(xxxv) Exhibit Ka-35- Injury
report of Ganga Ram;

(xxxvi) Exhibit Ka-36- Injury
report of Lallu;

(xxxvii) Exhibit Ka-37- Injury
report of Bahadur;

(xxxviii) Exhibit Ka-38- Injury
report of Jiya Lal;

(xxxix) Exhibit Ka-39- Ballistic
expert report;

(xxxx) Exhibit Ka-40- Chick
F.I.R. of Case Crime No.184 of 1985, under
Sections 25/27 of Arms Act and

(xxxxi)
Report
of
Forensic
Science Laboratory, Taj Road, Agra.

7. After completion of the prosecution
evidence, the statements of the accused
persons were recorded under Section 313
of The Code of Criminal Procedure, 1973
(in short Cr.P.C.) wherein all the three
accused persons denied the crime and
stated that witnesses have deposed falsely.
The police has submitted the charge sheet
wrongly. The case was registered due to
enmity and also stated that a dacoity took
place in the house of Ganga Ram and
therein all the injured persons suffered
injuries and they (accused persons) have
been falsely implicated due to enmity. The
accused persons did not produce any
witnesses in defence though opportunity
was given by the trial court, however, the
accused persons filed some documents in
their defence. These documents are mainly
related to the Court pleadings, judgments,
orders etc. and have been filed to show
previous enmity between the parties.

8. After hearing arguments of both the
sides the learned trial court on the basis of
evidence available on record found the
witnesses of facts reliable. The weapon of
offence was recovered on the pointing out
of the accused persons. The empty
cartridges recovered from the place of
occurrence were found fired from the
weapons recovered, in the ballistic test
report. The learned trial court came to the
conclusion that the accused persons fired
upon Sukhrani as a result she died and
assaulted other injured persons with the
intention to kill them and found them
(accused persons) guilty under Sections
302/34 and 307/34 of I.P.C. sentencing
them under Section 302/34 I.P.C. with
imprisonment for life coupled with a fine of
Rs.500/- each and in default of payment of
fine additional imprisonment of 3 months
each. The learned trial court sentenced the
accused persons under Sections 307/34
I.P.C. with rigorous imprisonment of 5
years coupled with a fine of Rs.300 each
and in default of payment of fine further
imprisonment of 3 months each. Being
aggrieved of the above conviction and
sentence, this appeal has been preferred.
1444 INDIAN LAW REPORTS ALLAHABAD SERIES

9. Heard Shri Brij Mohan Sahai,
learned counsel for the appellants and Shri
Chandra
Shekhar
Pandey,
learned
Additional Government Advocate for the
State-respondent.

10. Learned counsel for the appellants
argued that the appellants have falsely been
implicated in the crime due to enmity and
they are innocent. There was no motive to
commit the crime. The evidence of
witnesses of facts is not trustworthy as
there are contradictions in their evidence.
The injuries suffered by the deceased were
not of serious nature nor fatal. According to
post mortem examination report the injuries
were sustained before 12 hours of post
mortem examination. The firearm injury is
of pellets. Verbal abuses took place from
both the sides and the incident occurred in
a heat of passion. Therefore, the offence is
attributable only under Section 304 of
I.P.C. The learned counsel also argued that
all the three accused persons also sustained
injuries in the incident but their report was
not registered. The learned counsel drew
attention of the Court towards the General
Diary wherein the entry of there injuries
was
made.
Learned
counsel
further
submitted
that
the
trial
court
has
disbelieved the recovery of weapon of
offence and acquitted the accused of the
charges under Sections 25/27 of Arms Act
but convicted and sentence the appellants
under Sections 302/34 and 307/34 of I.P.C.
which is erroneous and liable to be set
aside.

11. Contrary to it, learned A.G.A.
submitted that in the incident, the mother of
the complainant died and seven persons
were injured. The death of Sukhrani and the
injuries suffered by the injured persons
have been proved. The complainant also
suffered injuries. The injured persons have
proved the incident, their presence at the
spot cannot be doubted as they are injured
witnesses. No major contradiction in the
statements of witnesses of facts has been
found.
The
learned
trial
court
has
considered and analyzed the evidence of
witnesses in a right perspective and
punished the accused persons accordingly.
The prosecution has proved its case beyond
all reasonable doubt. Hence the appeal
deserves to be dismissed.

12. Considered the arguments of both
the sides and perused the original record of
trial court as well as the record of appeal.

13. In the present matter, the
complainant Ganga Ram who also brought
persons injured in the incident, to lodge the
report, has lodged the report wherein he
stated that on 03.11.1985 at about 3
O'Clock in the day, the complainant and his
uncle Dayal were standing at the front door
of their house. His uncle Dayal came back
after ploughing his field. Mahesh, Santosh
and Ashok came there and said to Dayal
that he ploughed the boundary of their
field. His uncle Dayal denied any such act
and suggested the appellants that if there
was any doubt then the field could be
measured, then all the three appellants and
the complainant and his uncle went to the
field to inspect the boundary of the field.
On the spot, the appellants started hurling
abuses on the complainant's side, as a retort
the
complainant
also
hurled
abuses.
Thereafter, the appellants left the place
having told the complainant's side to wait at
the spot, they were coming and would
teach them a lesson. Thereafter at about 4
O'Clock all the three appellants, armed with
country made short-guns, reached there and
started firing upon the complainant and his
uncle. The pellets of those fires hit the
complainant and Sitala, the wife of Bihari.
9 All. Mahesh & Ors. Vs. State of U.P.
1445
His uncle lied down in the field to save
himself. The complainant raised alarm.
Hearing the sound of firing, the mother of
the
complainant,
namely
Sukhrani,
Bahadur, Jiya Lal, Lallu, Shyam Lal
Gadariya
and
the
nephew
of
the
complainant, namely Rakesh, aged about 6
years, came there running. When they all
reached
near
the
complainant,
the
appellants fired upon them also, 6-7 times
with the intention to kill them. They all
suffered injuries. Thereafter, many persons
reached at the spot hearing the noise and
the accused persons fled away. The mother
of the complainant got seriously injured.
The complainant arranged two bullockcarts and carried his mother and other
injured persons for treatment by the
bullock-carts but his mother Sukhrani died
while on way to the hospital.

14. In this incident one Sukhrani died,
Smt. Sitala, Shyam Lal, Rakesh (nephew of
the complainant aged about 6 years), Ganga
Ram, Lallu, Shri Bahadur, Jiya Lal, in total
7 persons sustained injuries. This is a day
light incident and the injured persons have
deposed in the Court to prove the incident.
The complainant has been examined as
P.W.1, he has narrated the incident step by
step before the trial court. A lengthy crossexamination has been made but nothing
adverse could be brought by the defence
counsel. In his (complainant) examinationin-chief he has proved all the facts written
in his First Information Report about the
incident. P.W.2- Shyam Lal was also
injured in the incident. He reached at the
spot after hearing the sound of firing and
noises. He has stated in the Court that when
he heard the sound of fire and noise then he
rushed
towards
the
field
of
Dayal.
Sukhrani, Lallu, Bahadur and Jiya Lal also
reached there with him and he saw that
Mahesh, Santosh and Ashok, who were
present in the court, were standing with
short-guns in their hands and Ganga Ram
and Sitala were lying on the ground, in
pain.

15. In the case in hand, one person
died and 7 sustained firearm injuries. The
feud ensued on the alleged damage caused
to a boundary of field, which was in
possession of/ploughed by the miscreants.
The incident has very well been proved by
the witnesses of facts i.e. P.W.1, P.W.2 and
P.W.3 who sustained injuries in the
incident, corroborated by the medical
evidence. The eye witnesses have sustained
firearm injuries in the incident, hence their
presence on the spot cannot be doubted.
The complainant has been examined as
P.W.1, who also sustained injuries in the
incident along with the others, has narrated
the incident before the trial court step by
step i.e. how the feud ensued and
culminated into death of Sukhrani (the
mother of the complainant) and injuries to
7 others. Lengthy cross-examinations have
been made of the witnesses produced to
prove the fact but no major contradictions
could
be
brought
in
their
crossexaminations.

16. The learned counsel for the
appellants argued that the incident occurred
in
a
heat
of
passion
without
any
premeditation, due to sudden provocation
as the complainant himself has stated in his
written report that the complainant's side
also hurled abuses on the accused persons.
Thus the incident occurred in the spur of
moment in a heat of passion, in such
situation the offence can travel at the most
to the offence punishable under Section 304
I.P.C. and not under Section 302 I.P.C.

This argument of learned counsel
for the appellants has been countered by the
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
learned A.G.A. by submitting that the
incident did not take place at the spur of
moment in a heat of passion. The appellants
after exchange of abuses went to there
houses and returned at the place of
occurrence with the intention to kill them
(complainant's side). Dayal lied down in
the field in order to save himself but the
complainant and one Sitala who was
working in her field nearby, sustained
injuries. When Sukhrani the mother of the
complainant and others rushed at the spot
after hearing the sounds of firing, the
appellants also fired upon them. One of the
fires hit Sukhrani (the deceased) and she
died, while other sustained injuries. Hence
this offence cannot be constrained to the
offence punishable under Section 304 I.P.C.
It is a clear case of murder i.e. offence
punishable under Section 302 I.P.C. and of
offence punishable under Section 307 I.P.C.
read with Section 34 of I.P.C.

17. In this regard it will be proper to
have a look at Exception 4 to Section 300
of I.P.C. This runs as under:-

"Exception 4.- Culpable homicide
is not murder if it is committed without
premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and
without the offender having taken undue
advantage or acted in a cruel or unusual
manner.

Explanation.- It is immaterial in
such
cases
which
party
offers
the
provocation or commits the first assault."

The perusal of this exception
shows that for getting the benefit of this
exception
four
essentials
must
be
established which are as under:-

(i) A Sudden fight;

(ii)
The
fight
was
without
premeditation;

(iii) the act was done in a heat of
passion and

(iv) the person who committed
the act had not taken any undue advantage
or acted in a cruel manner.

All the above requisites must coexist. If these conditions are established
then the cause of quarrel is immaterial. It is
also not relevant who gave provocation or
who started feud or assaulted first. The
incident must have occurred in heat of
passion and in unpremeditated manner or to
say the offender should have acted in a fit
of wrath. In a heat of passion a person
looses power of thinking reasonably as
faculty of reasons is clouded by extreme
anger and he or she acts in a manner he/she
would not act otherwise. In other words the
wrong act is committed during intense
emotional stage induced by displeasure or
loss of self control as a result of an act not
liked by the person.

19. The Hon'ble Apex Court recently
in the case State of Uttarakhand vs.
Sachendra Singh Rawat (2022) 4 SCC
227 has explained the relevant provision
quoting as follows:-

"9. In Dhirajbhai Gorakhbhai
Nayak [Dhirajbhai Gorakhbhai Nayak v.
State of Gujarat, (2003) 9 SCC 322 : 2003
SCC (Cri) 1809] , on applicability of
Exception 4 to Section 300 IPC, it was
observed and held in para 11 as under :
(SCC pp. 327-28)

"11. The Fourth Exception of
Section 300 IPC covers acts done in a
sudden fight. The said Exception deals with
9 All. Mahesh & Ors. Vs. State of U.P.
1447
a case of prosecution (sic provocation) not
covered by the first exception, after which
its
place
would
have
been
more
appropriate. The Exception is founded
upon the same principle, for in both there is
absence of premeditation. But, while in the
case of Exception 1 there is total
deprivation of self-control, in case of
Exception 4, there is only that heat of
passion which clouds men's sober reason
and urges them to deeds which they would
not otherwise do. There is provocation in
Exception 4 as in Exception 1, but the
injury done is not the direct consequence of
that provocation. In fact, Exception 4 deals
with cases in which notwithstanding that a
blow may have been struck, or some
provocation given in the origin of the
dispute or in whatever way the quarrel may
have originated, yet the subsequent conduct
of both parties puts them in respect of guilt
upon an equal footing. A "sudden fight"
implies mutual provocation and blows on
each side. The homicide committed is then
clearly
not
traceable
to
unilateral
provocation, nor could in such cases the
whole blame be placed on one side. For if
it
were
so,
the
Exception
more
appropriately
applicable
would
be
Exception
1.
There
is
no
previous
deliberation or determination to fight. A
fight suddenly takes place, for which both
parties are more or less to be blamed. It
may be that one of them starts it, but if the
other had not aggravated it by his own
conduct it would not have taken the serious
turn
it
did.
There
is
then
mutual
provocation and aggravation, and it is
difficult to apportion the share of blame
which attaches to each fighter. The help of
Exception 4 can be invoked if death is
caused : (a) without premeditation, (b) in a
sudden fight, (c) without the offenders
having taken undue advantage or acted in a
cruel or unusual manner, and (d) the fight
must have been with the person killed. To
bring a case within Exception 4 all the
ingredients mentioned in it must be found.
It is to be noted that the "fight" occurring
in Exception 4 to Section 300 IPC is not
defined in IPC. It takes two to make a fight.
Heat of passion requires that there must be
no time for the passions to cool down and
in this case, the parties had worked
themselves into a fury on account of the
verbal altercation in the beginning. A fight
is a combat between two and more persons
whether with or without weapons. It is not
possible to enunciate any general rule as to
what shall be deemed to be a sudden
quarrel. It is a question of fact and whether
a quarrel is sudden or not must necessarily
depend upon the proved facts of each case.
For the application of Exception 4, it is not
sufficient to show that there was a sudden
quarrel and there was no premeditation. It
must further be shown that the offender has
not taken undue advantage or acted in a
cruel or unusual manner. The expression
"undue advantage" as used in the provision
means "unfair advantage"."

10. In Pulicherla Nagaraju
[Pulicherla Nagaraju v. State of A.P.,
(2006) 11 SCC 444 : (2007) 1 SCC (Cri)
500] , this Court had an occasion to
consider the case of culpable homicide
not amounting to murder and the
intention to cause death. It was observed
and held by this Court that the intention
to cause death can be gathered generally
from a combination of a few or several of
the
following,
among
other,
circumstances:

(i) nature of the weapon used;

(ii) whether the weapon was
carried by the accused or was picked up
from the spot;
1448 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) whether the blow is aimed at
a vital part of the body;

(iv) the amount of force employed
in causing injury;

(v) whether the act was in the
course of sudden quarrel or sudden fight or
free-for-all fight;

(vi) whether the incident occurs
by chance or whether there was any
premeditation;

(vii) whether there was any prior
enmity or whether the deceased was a
stranger;

(viii) whether there was any
grave and sudden provocation, and if so,
the cause for such provocation;

(ix) whether it was in the heat of
passion;

(x) whether the person inflicting
the injury has taken undue advantage or
has acted in a cruel and unusual manner;

(xi) whether the accused dealt a
single blow or several blows."

20. In Jangaliya and Others vs.
State of U.P. 2022 SCC OnLine All 356,
the Hon'ble Allahabad High Court has also
observed as under:-

"42. Now, we shall examine the
applicability
of
Exception
4.
The
ingredients for applicability of Exception 4
are : (i) there must be a sudden fight; (ii)
there was no pre-meditation; (iii) the act
was committed in heat of passion; and (iv)
the assailant had not taken any undue
advantage or acted in a cruel manner. If the
said ingredients are present, the cause of
quarrel would not be material as to who
offered the provocation or started the fight.
Although the term fight has not been
defined in IPC but the consistent view is
that it implies mutual assault by use of
criminal force and not mere verbal duel. In
Bhagwan Munjaji Pawade v. State of
Maharashtra, (1978) 3 SCC 330 (Para 6),
it was observed that where the accused is
armed and the deceased is unarmed,
Exception 2 can have no application and
Exception 4 to Section 300 would not apply
if there is sudden quarrel but no sudden
fight between the deceased and the
accused. It was held that "Fight' postulates
a bilateral transaction in which blows are
exchanged."

21. Now we have to examine the
present case in this light. In the present case,
the feud ensued for the reason of alleged
damage to the boundary of the field of the
accused. At that time both the parties hurled
abuses on each other as is clear from the
written report itself. Thereafter, the appellants
left the spot and went to their house
challenging the complainant and his uncle
Dayal to wait at the place and they would
come back. After some time i.e. at 4 O'Clock
they (accused persons) again reached at the
spot armed with deadly weapons and
assaulted
the
complainant's
side
with
firearms. This act of the appellants cannot be
termed as the act committed in a heat of
passion or fit of anger. These appellants
reached the spot armed with deadly weapons
together, which means they came with a
planning to kill the complainant and his uncle
Dayal but the mother of the complainant
along with other reached at the spot. The
appellants also fired upon her with intention
to kill her and she died of that injury and any
other person who came ahead got injured. All
these facts and circumstances make it crystal
clear that the incident was not committed in a
9 All. Mahesh & Ors. Vs. State of U.P.
1449
sudden fight in a heat of passion and without
premeditation. Hence this argument of the
learned counsel for the appellants has no
force.

22. The post-mortem examination
report of the deceased Sukhrani shows that
following ante-mortem injuries were found
on her person:-

"1. Multiple firearm injuries over
the front part of chest, ... left thigh upper
1/3 also on lateral side and front part of Rt
thigh ...;

2. Firearm injuries (Two) on
medial side of Rt elbow joint;

3. One Firearm injury on Lt side
of chest at the ... of 6th intercostal space in
mid axillary line;

4. One Firearm injury on lower
border of Rt eye socket.

Laceration of intercostal muscle
of Rt 3rd, 4th & 6th Lt 3rd, 4th & 8th was
found. Lungs (both) were found ruptured
and semi clotted blood was present in both
chest cavities. The amount was 300 ml.
Small intestine loops, liver, spleen were
found lacerated and semi clotted blood was
present in abdominal cavity. The amount
was 400 ml.

The cause of death as noted in the
post-mortem examination report is "shock
and haemorrhage as a result of antemortem injuries.""

The
injury-reports
of
others
including a 6 year old child show that they
all sustained firearm injuries. The facts and
evidences available on record very well
establish beyond reasonable doubt that this
incident was not committed in a sudden
fight, in a heat of passion and without
premeditation. The evidence on record
establishes that the feud ensued over the
alleged damage to the boundary of the field
and after exchange of abuses, the appellants
went to their house and came back with
planning, armed with firearm weapons, and
fired upon the persons of complainant's
side with the intention to kill them wherein
Sukhrani the mother of the complainant
died and 7 others persons got injured.

23. The learned counsel for the
appellants also argued that the appellants
also suffered injuries in the incident and
that was noted in the General Diary Entry
No.27. Hence it should be considered that
they caused the injuries to the other side
while defending themselves.

This argument of learned counsel
for the appellants is also not sustainable
because no such question has been put to
any witness nor has been stated in the
statement recorded under Section 313
Cr.P.C. In the statement recorded under
Section 313 of Cr.P.C. the appellants have
taken the defence that some dacoity
occurred in the house of Ganga Ram and
there the injured persons suffered injuries.
Further more they have not put any
question to the witnesses examined as to
give them the opportunity to explain the
injuries on the person of the appellants.

24. Learned counsel for the appellants
further argued that the recovery of weapon
of offence has been disbelieved by the
learned trial court but the conviction has
been made for the offence under Sections
302 and 307 I.P.C. read with Section 34 of
I.P.C. He further submitted that once the
recovery of weapon has been disbelieved
then the offence itself cannot be deemed
proved.
1450 INDIAN LAW REPORTS ALLAHABAD SERIES

This argument of the counsel for
the appellants is also not acceptable
because where there is direct evidence of
the offence then recovery of the weapon of
offence is not necessary. In the present
matter there is direct evidence of the crime,
the witnesses have sustained injuries in the
incident which is corroborated by the
medical evidence. Hence this appeal has no
merits and deserves to be dismissed.

25. Accordingly, the present criminal
appeal is hereby dismissed. The impugned
judgment and order dated 03.05.1990 is
confirmed.

26. The appellants are on bail. Their
bail bonds are canceled and sureties
discharged. They are ordered to surrender
before the trial court within two weeks
from today to serve out the sentence
awarded by the trial court failing which the
trial court is directed to get them arrested
and sent to jail.

27. Office is directed to send a copy
of this order along with lower court record
to the trial court concerned for necessary
information and compliance forthwith.
----------
(2022) 9 ILRA 1450
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.09.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 435 of 2016
With
Criminal Appeal No. 407 of 2016

Deepak Kumar Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajesh Kumar Dwivedi

Counsel for the Opposite Party:
A.G.A., Mr. Umesh Chand Verma

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 313 & 437(a) -
Indian Penal Code, 1860 - Sections 34,
201, 302 & 363 - Evidence Act, 1872 -
Section 27 - Appeal against conviction and
Sentence - complaint about missing - unnamed
FIR was registered after seven days - offence of
murder - evaluation of evidence - during
investigation angle of love affair between the
deceased and a girl but there is no evidence on
record to established the same - dead body was
recovered after ten days in rotten St. - the
identity of the body is not proved beyond
reasonable doubt , even though DNA sample
was preserved but no DNA test was conducted -
no motive has been disclosed - Chain of
circumstances is not complete - hence, it
cannot be said that the prosecution has proved
the case beyond reasonable doubt - accused
appellant deserve the 'benefit of doubt' -
impugned order is set aside - direction issued in
favour of appellants accordingly subject to
compliance of section 437-A of Cr.P.C. (Para 29,
30, 31)

Criminal Appeals are allowed. (E-11)

List of Cases cited:

1. Sharad Birdhichand Sarda Vs St. of Mah., AIR
1984 SC 1622 : 1984 SCC (Cri) 487,

2. Ganpat Singh Vs St. of M.P., (2018) 2 SCC
(Cri) 159 : (2017) 16 SCC 353,

3. Anil Kumar Singh Vs St. of Bihar, 2004 SCC
(Cri) 1167,

4. Padala Veera Reddy Vs St. of Andhra Pradesh,
AIR 1990 SC 79 : 1990 ACC 32 (SC),

5. Gargi Vs St. of Har., (2019) 9 SCC 738,

6. Hanumant Govind Nargundkar Vs St. of M.P.,
AIR 1952 SC 343,