# Manoj Kumar Sharma (In Jail) v. State of U.P

- **Citation:** (2022) 6 ILRA 805
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-31
- **Case number:** Criminal Appeal No.4319 of 2012
- **Bench:** Mrs. Sunita Agarwal, Mrs. Sadhna Rani (Thakur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-sharma-in-jail-v-state-of-u-p-48861
- **Pages:** 20

## Headnote

Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 300,302 - murder , Section 304 -
culpable homicide.

Appellant went to tube-well for watering his
field - deceased argued to first water his field -
did not allow appellant to take water from
tube-well - fought and deceased sustained
firearm injuries - first informant (brother of
deceased) reached at his tube-well - saw his
brother deceased lying blood soaked on a cot -
injured told first informant that appellant shot
two fires on him through his gun - shot injured
by his licensee gun . (Para -3,4 )

(B) Criminal Law - Indian Penal Code,
1860 - Section 304 - culpable homicide
not amounting to murder - held - incident
occurred in a sudden fight - without any
premeditation in the state of anger - offence
806 INDIAN LAW REPORTS ALLAHABAD SERIES
committed by the appellant - fall within the
meaning of "culpable homicide not amounting to
murder" under section 304 of the code . (Para
-69)

(C) Criminal Law - Indian Penal Code,
1860 - Distinction between two parts of
Section 304 (Part I and Part II) - Part I is
founded on the intention of causing the
act by which the death is caused - Part II
- attracted when the act is done without
any intention but with the knowledge that
the act is likely to cause death - intent
required should not be linked with the
seriousness of the injury - held - appellant
was overpowered by an uncontrollable fit of
anger so much so that he was deprived of his
power of self control - being drawn in a web of
action reflexes, he fired at the deceased - Fact
do not commend to conclude that appellant had
intention to eliminate his brother though he had
the knowledge of the likely fatal consequence
thereof .(Para -54,68,72,73)

HELD:-Intention probably was to merely cause
bodily injury - conviction of the appellant ought
to be moderated to one under Section 304 Part
I
of
the
Code,
"Culpable
homicide
not
amounting to murder", punishable in the first
part (Part I) of Section 304 of the Code.

Appellant guilty of offence under Section 304
Part I, altered the offence from that of Section
302 IPC to one under Section 304 Part I of the
Indian Penal Code. (Para -74,76 )

Criminal Appeal partly allowed.(E-7)

List of Cases cited:-

## Text

_Characters 0–39,999 of 68,603. This is a partial read: ask again with offset=39999 for what follows._

6 All. Manoj Kumar Sharma Vs. State of U.P.
805
murder unless the prosecution by adducing
cogent evidence discharges the burden of
proving their guilt beyond reasonable
doubt.

35. The trial court on the basis of
above evidence appears to have drawn its
finding of guilt against the appellants
wholly on assumptions. Even in the
absence of any evidence of affair between
the deceased and PW-5 or the deceased
having been brought by PW-5 etc., it
proceeded to hold that the charge of
murdering the deceased on account of
honour killing has been proved. We cannot
approve of the conclusions drawn by trial
court
after
minutely
examining
the
evidence on record. We find that none of
the ingredients of proving the charge by
way of circumstantial evidence existed and,
therefore, the findings of guilt returned by
the trial court will have to be held as based
only on assumptions. Doubt or suspicion
howsoever strong against the accused
cannot be a substitute for the charge to be
proved against the accused in a criminal
trial.

36. In such circumstances, we are of
the considered opinion that the judgment
and order dated 12.8.2013, passed by the
Additional District and Sessions Judge,
Court No.6, Moradabad, in Sessions Trial
No.439 of 2011 (State Vs. Mustqeem &
Khursheeda) arising out of Case Crime
No.538 of 2010, under Section 302/34 IPC,
Police Station Asmauli, District Moradabad
cannot be sustained and is liable to be set
aside. The prosecution has failed to prove
the charge of murder against the appellants
beyond reasonable doubt and, therefore, the
sentence
and
conviction
of
accused
appellants is set aside. The appellants are
acquitted from the charges of offence under
section 302 read with 34 IPC and they shall
be set at liberty forthwith, if they are not
wanted in any other case.

37. The appeals are, accordingly,
allowed. No order is passed as to costs.
----------
(2022)06ILR A805
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.05.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE MRS. SADHNA RANI
(THAKUR), J.

Criminal Appeal No.4319 of 2012

Manoj Kumar Sharma ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri C.K. Bhardwaj, Sri Amit Daga, Sri Abhishek
Kumar Jaiswal, Sri Shyam Babu Vaish

Counsel for the Respondent:
G.A., Sri Ram Jee Saxena

(A)
Criminal
Law
-
Appeal
against
conviction - Indian Penal Code, 1860 -
Section 300,302 - murder , Section 304 -
culpable homicide.

Appellant went to tube-well for watering his
field - deceased argued to first water his field -
did not allow appellant to take water from
tube-well - fought and deceased sustained
firearm injuries - first informant (brother of
deceased) reached at his tube-well - saw his
brother deceased lying blood soaked on a cot -
injured told first informant that appellant shot
two fires on him through his gun - shot injured
by his licensee gun . (Para -3,4 )

(B) Criminal Law - Indian Penal Code,
1860 - Section 304 - culpable homicide
not amounting to murder - held - incident
occurred in a sudden fight - without any
premeditation in the state of anger - offence
806 INDIAN LAW REPORTS ALLAHABAD SERIES
committed by the appellant - fall within the
meaning of "culpable homicide not amounting to
murder" under section 304 of the code . (Para
-69)

(C) Criminal Law - Indian Penal Code,
1860 - Distinction between two parts of
Section 304 (Part I and Part II) - Part I is
founded on the intention of causing the
act by which the death is caused - Part II
- attracted when the act is done without
any intention but with the knowledge that
the act is likely to cause death - intent
required should not be linked with the
seriousness of the injury - held - appellant
was overpowered by an uncontrollable fit of
anger so much so that he was deprived of his
power of self control - being drawn in a web of
action reflexes, he fired at the deceased - Fact
do not commend to conclude that appellant had
intention to eliminate his brother though he had
the knowledge of the likely fatal consequence
thereof .(Para -54,68,72,73)

HELD:-Intention probably was to merely cause
bodily injury - conviction of the appellant ought
to be moderated to one under Section 304 Part
I
of
the
Code,
"Culpable
homicide
not
amounting to murder", punishable in the first
part (Part I) of Section 304 of the Code.

Appellant guilty of offence under Section 304
Part I, altered the offence from that of Section
302 IPC to one under Section 304 Part I of the
Indian Penal Code. (Para -74,76 )

Criminal Appeal partly allowed.(E-7)

List of Cases cited:-

1. Pardeshiram Vs St. of M.P. , 2021 (3) SCC
238

2. Khuman Singh Vs St. of M.P., 2020 (18) SCC
763

3. Udiya Vs St. of M.P., 2019 (15) SCC 65

4. Atul Thakur Vs St. of H.P.& ors., 2018 (20)
SCC 496

5. Surain Singh Vs St. of Punj., 2017 (5) SCC
796

6. Ravindra Shalik Naik & ors. Vs St. of Mah.,
2009 (12) SCC 257

7. Vineed Kumar Chauhan Vs St. of U.P., 2007
(14) SCC 660

8. Sridhar Bhuyan Vs St. of Orissa, 2004 (11)
SCC 395

9. Parkash Chand Vs St. of H.P. B, 2004 (11)
SCC 381

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

11. St. of A. P. Vs Rayavarapu Punnayya &
Anr.,1976 (4) SCC 382

12. Virsa Singh Vs St. of Punj., 1958 SC 465

13. Rajwant Singh Vs St. of Kerala, AIR 1966
SC 1874

14. Aradadi Ramudu @ Aggiramudu Vs St.
through Inspector of Police, Yanam, 2012 (5)
SCC 134

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

16. Satish Narayan Sawant Vs St. of Goa, 2009
(17) SCC 724

17. Arun Raj Vs U.O.I., 2010 (6) SCC 457

18. Rampal Singh Vs St. of U.P., 2012 (8) SCC
289

19. Phulia Tudu Vs St. of Bihar, 2007 (14) SCC
588

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

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

1. Heard Sri Amit Daga learned
Advocate for the appellant and Sri Patanjail
Mishra
learned
AGA
for
the
State
respondent.
6 All. Manoj Kumar Sharma Vs. State of U.P.
807

2. This appeal is directed against the
judgement and order dated 24.09.2012
passed by the Additional Sessions Judge,
Court No.8, Bulandshahar in S.T. No.221
of 2010, arising out of Case Crime No.348
of 2009, under Section 302 IPC, P.S. B.B.
Nagar, District Bulandshahar, whereby the
appellant Manoj Kumar Sharma son of Ved
Prakash
Sharma,
resident
of
village
Dhakoli, Police Station B.B. Nagar, has
been convicted for the offence under
Section 302 IPC and sentenced for life
imprisonment.

3. The first information report of the
incident occurred on 11.12.2009 at about
02.00 PM, was lodged by Vikas Sharma
son of Ved Prakash Sharma, brother of the
accused-appellant Manoj Kumar Sharma. It
may also be noted herein that deceased
Rajeev Kumar Sharma was brother of the
first informant as also the accusedappellant herein. It was stated in the report
that on 11.12.2009 at about 02.00 PM, the
informant received a call on his mobile
from Smt. Savita wife of Manoj, the
appellant-herein. She told that the appellant
went to the tube-well for watering his field
but deceased Rajeev Kumar was arguing by
stating that he would first water his field
and did not allow the appellant to take
water from the tube-well. On the said issue,
they fought and Rajeev sustained firearm
injuries. Savita asked the first informant to
take the injured Rajeev to the hospital.

4. On getting this information, the
first informant reached at his tube-well at
Kharkali Jungle and saw his brother Rajeev
Kumar Sharma lying blood soaked on a
cot. The injured told the first informant that
Manoj Kumar Sharma (the appellant
herein) shot two fires on him through his
gun. One Sri Bhagwan @ Kallu and other
passerby tried to save him and intercepted
Manoj but he did not listen to anyone and
shot the injured by his licensee gun. The
injured begged him to take to the hospital.
The
first
informant
alongwith
other
villagers took the deceased to B.B. Nagar
Community Hospital but he succumbed to
his injuries on the way. While keeping the
dead body at the Government Hospital, the
first informant went to lodge the report.

5. The check FIR based on the written
report lodged on 11.12.2009 was proved by
PW-4, the Constable Clerk posted in the
police station B.B. Nagar, being in his
handwriting and signature as Exhibit Ka-2.
The G.D. entry report No.31 at 15.45 hrs of
the said report was proved by bringing the
original G.D. in the Court and filing the
certified carbon copy of the same, by PW4, being in his handwriting and signature as
Exhibit Ka-3.

6. In cross, PW-4 stated that he could
not tell the time of sending the special
report to the senior officials. However, the
special report was received on 14.12.2009
by the concerned court but the date of
sending of the same from the police station
was not noted. On further confrontation, he
stated that no memo or information of the
incident was received from the hospital.

7. The inquest of the dead body was
conducted at the Community Health
Center, B.B. Nagar which is evident from
the inquest report proved by PW-7 as
Exhibit Ka-12. The related papers to the
inquest prepared for sending the dead body
for the postmortem had been proved as
Exhibit Ka-13 to Exhibit Ka-19. The
postmortem report was proved by the
doctor entered in the witness box as PW-5.
He stated that he conducted the postmortem
on 12.12.2009 at about 11.30 AM. The
body was received in the sealed state. On
808 INDIAN LAW REPORTS ALLAHABAD SERIES
external
examination,
the
deceased
appeared to be aged about 32 years, a
strong built male. The rigor mortis was
present over the entire body. The injury
found on the person of the deceased as
indicated in the postmortem report are:-

"Firearm wound of entry size 5.0
cm x 3.0 cm x chest cavity deep left side
back of chest just lateral to inferior angle of
left scapula. Margins inverted and black.

Firearm would of entry size 3.0
cm x 2.5 cm x chest cavity deep on left side
back of chest 3.0 cm above from injury
No.1. Margins inverted and black. No
tattooing present. On exploration, 4, 5 and
6 ribs of left side of back were found
fractured, Left lung, pleura, heart and
pericardium were lacerated. 800 ML blood
was found in the left chest cavity. 2 wed
pieces and 10 small metallic pellets from
left lung and left side chest cavity."

8. As noted above, on internal
examination, 4th 5th 6th left ribs were
found fractured. Left lung, pleura, heart and
pericardium were lacerated. 800 ML blood
was found in left chest cavity. 2 wed pieces
and 10 small metallic pellets from left lung
and left side chest cavity. There was 200
ML fluid in the stomach. Small intestine
and large intestine were filled with gases
and water.

9. The cause of death had been stated
as
hemorrhage
and
shock
due
to
antemortem injuries. PW-5 stated that the
death was caused by the firearm injuries
sustained by the deceased. The postmortem
report was proved being in his handwriting
and signature by PW-5 as Exhibit Ka-4.
The proximate time of death as stated
therein is 02.00 PM on 11.12.2009. It was
further stated by PW-5 that two gun shot
injuries sustained by the deceased were
sufficient to cause his death. The wed
pieces, pellets and clothes were sealed and
handed over to the Constable who brought
the dead body. PW-5 was cross-examined
by the defence on the issue that looking to
the nature of injuries, there was possibility
of immediate death. The doctor, on
contradiction, stated that two gun shot
injuries could not occur by one bullet. A
suggestion was also given to PW-5 that the
deceased was shot while lying on his left
side.

10. The Investigating Officer had
entered in the witness box as PW-6 and
stated that as soon the case was registered,
he received the investigation, recorded the
statement of the first informant, went to the
Community Health Centre, B.B. Nagar
where the body of deceased Rajeev Kumar
Sharma was found lying on a cot. The
inquest was conducted by PW-7 on his
instruction. After completion of the inquest,
he went to the spot of the incident
alongwith the first informant and prepared
the site plan on his pointing out, which was
proved as Exhibit Ka-5 in his handwriting.
PW-6 stated that he again went to the
Community Hospital to ensure that the
dead body was sent for the postmortem and
then went to the site of the incident
wherefrom he made recoveries of two
empty cartridges 12 bore and the blood
soaked rope of the cot from the spot of the
incident. The blood stained and plain earth
were also collected and all the said
recovery memos were proved as Exhibit
Ka-6, Ka-7, Ka-8 and Ka-9, being in the
handwriting and signature of PW-6.

11. The statement of Smt. Akhilesh,
PW-3 (wife of the deceased) was recorded
on 13.12.2009. On 15.12.2009, on the
report of the informer, the accused was
6 All. Manoj Kumar Sharma Vs. State of U.P.
809
arrested at about 12.40 PM. One SBBL gun
license No.47954 was recovered from the
possession of appellant Manoj and the safe
custody receiver receipt of the gun store
was also seized. The recovery memo was
prepared and signed by the accused and the
witnesses, proved as Exhibit Ka-10. The
statement of the accused-appellant had then
been
recorded.
On
18.12.2009
the
statement of another witness Shri Bhagwan
@ Kalu (PW-2) was recorded. After
recording the statement of other witnesses
on 21.12.2009, the incriminating articles
recovered from the spot were sent to FSL
on 24.12.2009. On completion of the
investigation,
the
charge
sheet
was
submitted and proved as Exhibit Ka-11.

12. The Investigating Officer (PW-6)
was confronted on the issue as to whether
he recorded statement of Savita, wife of the
appellants, on whose information, the first
informant went to the spot of the incident.
He was further confronted as to whether he
ascertained that the deceased was in a
position to speak after receiving injuries.
PW-6 was further confronted with the
injuries shown in the postmortem report to
further assert that looking to the nature of
injuries, it was not possible for the injured
to speak. A suggestion was given that the
FIR was based on a concocted story to
which he replied by saying that whatever
was written by the first informant, it was
noted by the Constable Clerk.

13. PW-6 was then confronted with
the statement of the first informant
recorded in the site plan wherein it was
noted that blood was found below the cot
wherein deceased was lying when the first
informant met him. PW-6 replied that
blood was found at one spot only at the site
of the incident and not at any other place
and denied the suggestion that the deceased
was hit while lying on the cot. PW-6 was
further confronted on the delay in recording
the statement of the witnesses namely
Akhilesh and Sri Bhagwan @ Kalu and that
the copy of the first information report was
not sent with the body sent for the
postmortem and also that the special report
was not sent by him. It is stated by PW-6
that the special report of the occurrence
was sent to the CJM through proper
channel and the delay in noticing the same
might be because of the concerned
engagement of the officer in some other
work.

14. On the arrest of the accused and
recovery of gun, PW-7, the officer who
prepared the recovery memo was crossed
who stated that the recovery memo of gun
as Exhibit Ka-10 was prepared on the spot
and denied the suggestion that the accused
Manoj had surrendered in the police station
and the gun was recovered from Choudhary
Gun House, Hapur. The suggestion that no
license or cartridges were recovered from
the accused Manoj was also denied. PW-7
denied the suggestion that the entire
recovery proceeding was forged.
15. The ballistic report Exhibit Ka-20
shows that two empty cartridges recovered
from the spot were tallied with the SBBL
gun seized by the police. The clothes of the
deceased were found blood stained. Human
blood was found on the clothes of the
deceased, pieces of rope of cot, pellet and
wed pieces found from inside the dead
body. The blood stains on earth were
disintegrated.

16. The prosecution had produced
three witnesses of fact, the first informant
as PW-1, an eye witness of the occurrence
namely Shri Bhagwan @ Kalu as PW-2;
another eye witness Smt. Akhilesh Sharma
wife of the deceased as PW-3.
810 INDIAN LAW REPORTS ALLAHABAD SERIES

17. PW-1 , the first informant, in the
examination-in-chief, reiterated the version
of the written report submitted by him. He
then stated that his tube-well was existing
in the jungle of Kharkali Gaon and when he
reached at the tube-well, his brother was
lying blood soaked on a cot who told him
that appellant Manoj shot him from his
licensee gun. The injured Rajeev was taken
to the Community Hospital in a 'Jugaad'
and he succumbed to his injuries on the
way. The written report was scribed by him
and submitted in the P.S., B.B. Nagar,
proved as Exhibit Ka-1.

18. In cross, PW-1 described the
distance of the place of the incident with
his village as 700 meter and location of the
tube-well in the field. He also described the
topography of the place of the incident with
the location of his agricultural field and that
of his brothers, Rajeev Sharma (deceased)
and Manoj (appellant). It was stated by
PW-1 that there was a room wherein tubewell was installed and there were trees near
the tube-well. He then stated that they were
four brother and total 44 bighas of land of
the joint family had been partitioned
between them. The land of accused Manoj
was at the east of the tube-well whereas
chak of Rajeev (deceased) was at the north
abetting the main road. PW-1 then
described the vocation of himself and his
three brothers and stated that he was a
teacher in a primary institution situated at a
distance of 3 km from his village and the
school timing was 10.00 AM to 04.00 PM
at the time of the incident. Being a
Coordinator
of
Nyay
Panchayat,
on
temporary basis, alongwith teaching work
he was doing inspection of the primary
institutions. On the day of the incident, he
left his home at about 09.30 AM and went
to three primary institutions to make
inspection. The suggestion that he was not
in the village at the time of the incident had
been repelled by him. PW-1 then described
as to how he had proceeded after the
incident, i.e. that he firstly went to the
Hospital and then to the police station. PW1 stated that no information of the death
was sent from the Hospital and he wrote
the first information report in the Hospital.
The suggestion that he reached the Hospital
at around 04.00 PM was categorically
denied.

19. About relationship of brothers,
PW-1 stated that the brothers had normal
relationship and there was no enmity
between deceased Rajeev and accused
Manoj. No fight had occurred between
them prior to the incident and all brothers
used to address each other as 'Bhaiya' and
they never abused each other. The
suggestion that he reached at the place of
the incident after about 1 hour of death of
his brother Rajeev had been categorically
denied by PW-1. He then categorically
admitted that he did not mention anything
told to him by witnesses Akhilesh and Sri
Bhagwan in the first information report. A
suggestion of enmity of PW-1 with accused
Manoj about a compassionate appointment
after death of their father was denied by
PW-1. It was admitted by PW-1 that
witnesses Bhagwan and Akhilesh were
related to each other and he denied that the
wife of the deceased Akhilesh never went
to the field and she and Bhagwan were
falsely projected as a witness at his
instance.

20. PW-1 further stated that he went
to the spot of the incident alongwith the
police after lodging of the first information
report, got the site plan prepared and
recovery of the empty cartridges, blood
stained earth was made by the police in his
presence.
6 All. Manoj Kumar Sharma Vs. State of U.P.
811

21. PW-2, Sri Bhagwan @ Kalu was
acquaintance of the family. He stated that
while he was going to his village via
Kharkali on a bicycle, when he reached at
the Pakka road near the tube-well of
deceased Rajeev at around 02.00 PM, he
saw an oral altercation between Rajeev and
Manoj. They were arguing on the issue of
watering their fields. The wife of Rajeev
namely Akhilesh was present. The oral
altercation turned into physical and they
both got entangled. He and Akhilesh tried
to intervene and then Manoj shot two fires
from his gun at Rajeev and fled from the
spot. Rajeev was crying to take him to the
Hospital but since he (PW-2) was afraid he
left the place to go to his home. After two
days, he came to know that Rajeev had
died.

22. In cross, PW-2 stated that he left
his house at around 01.00 PM and went to
Dhakoli for taking tractor trolley on rent.
However, he could not get it and, therefore,
was going back to his village Bhasauli via
Kharkali. The distance between Dhakauli
and Kharkali was stated by PW-2 as 2-21/2 KM. He stated that the Investigating
Officer recorded his statement and on
confrontation with the same, PW-2 stated
that wrong reason for going to Kharkali
was narrated by the Investigating Officer
and he did not know as to why that was
written. The relationship of Smt. Akhilesh
with this witness (PW-2) was admitted but
he stated that Akhilesh was not her real bua
(Aunt). He described as to how the incident
had occurred and stated that when Manoj
fired the shot, Rajeev was at a distance of 2
paces and it was so instant that he could not
warn Rajeev. Both the gun shots hit at the
back of the injured.

23. On further confrontation, PW-2
stated that he went away from the place of
the incident by telling Akhilesh that she
should call her family members and he did
not have any phone. Savita and Manoj were
living in B.B. Nagar and Savita was not
present on the spot. He then stated that he
was so shaken by the incident that he did
not intimate the police. After reaching his
home, he told about the incident to his
family members who went to B.B. Nagar
but he did not go there.

24. The suggestion that he was not
present on the spot was denied by PW-2.
He admitted that he left Rajeev on the field
and did not know as to who took him and
PW-1, Vikas Sharma, was not at the spot,
by the time he left the place.

25. PW-3 Smt. Akhilesh is the wife of
the deceased. She admitted relationship of
the accused with the deceased and stated
that
the
appellant
was
quarrelsome
(झिड़ िू) by nature and, therefore, he had
separated about 11-12 years ago and was
living separately. She then described as to
how the incident had occurred and in her
statement, it has come that the altercation
between the deceased and the appellant
occurred on the issue of watering their
fields from the tube-well. She then stated
that after the deceased was hit at the back
he fell down and her brother-in-law (Vikas)
namely PW-1 and other villagers took the
injured to B.B. Nagar in a 'Jugaad', her
husband died on the way.

26. In cross, PW-3 admitted that after
the incident they all were living together
i.e. the first informant, deceased and her
son who was studying in the school.
Deceased Rajeev was an agriculturist and
used to go to his field daily and she used to
carry his food if he would go without
having it. PW-3 stated that she also used to
go to the field around 10.00-11.00 AM or
812 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter, or sometime with the deceased
depending upon the work. She did not
remember that on the date of the incident
whether her husband (deceased) ate his
food. PW-3 then stated that only the
agricultural land of Manoj (the appellant)
had been separated and all other lands were
in partnership and her husband Rajeev used
to take care of the entire field with one
help. She also used to go to the field with
Rajeev to help. The topography of the place
of the incident, the location of the tube-well
was narrated by PW-3. PW-3, during cross,
was shown certain photographs of their
chak which she identified and proved as
Material Exhibit Kha-2 & Kha-3.

27. She stated that PW-3 Sri Bhagwan
was not his real nephew but was related to
her.
The
suggestion
that PW-2 Sri
Bhagwan was not present on the spot was
denied by PW-3. She stated that the police
had recorded her statement and then stated
that no-one came on the tube-well to save
her husband rather they were crying from
the distance. After PW-2, Sri Bhagwan fled
away from the spot other people came in
from the road and she did not know
anyone. Some villagers lifted her husband,
put him on the cot lying there at a distance
of 2 to 4 paces from the place where Rajeev
was standing and when he was put on the
cot, lot of blood was oozing out from his
wound. She could not tell the time when
the first informant had reached at the spot
and denied the suggestion that she took her
husband to the B.B. Nagar Hospital with
villagers named as Dharampal and Jogpal.
PW-3 stated that she was shaken by the
incident but she spoke and she did not
know as to whether Rajeev was carrying
mobile. The suggestion that she was not
present on the spot and was making
statement at the instance of PW-1, the first
informant was categorically denied by PW3. She also denied the suggestion that PW2 Shri Bhagwan was not present at the spot
and was making deposition at their
instance.

28. Placing the oral testimony of the
prosecution witnesses and the documentary
evidences on record, it is argued by Sri
Amit Daga learned counsel for the
appellant that both the eye witnesses of the
incident are not reliable. The first informant
PW-1 is not an eye witness. He though
stated that telephonic information of the
incident was given by Savita wife of the
appellant but the prosecution had not
disclosed as to how the factum of the
incident came to the knowledge of Savita,
who according to the own case of the
prosecution witness (Investigating Officer)
was not present on the spot. The statement
of PW-1, the first informant, that the
deceased told him that accused Manoj had
killed him by opening gun shots is
improbable, looking to the gravity of the
injuries sustained by the deceased where
heart, pericardium and lungs were found
lacerated as bullet had reached straight-way
into the heart cavity. The only probability
which can be inferred that the deceased had
died on the spot.

29. As regards PW-3, wife of the
deceased, it is stated that her presence on
the spot was not natural as she admitted
during the course of the examination that
she would not go to the agricultural field
regularly. In her statement it has come that
she used to go to the field only to bring
food of the deceased and when questioned,
she stated that she did not remember as to
whether her husband ate food on that day.
Looking to the status of the family of the
deceased, it is improbable that PW-3, his
wife would go to the field to help in the
agricultural work. Even otherwise, the
6 All. Manoj Kumar Sharma Vs. State of U.P.
813
statement of PW-3 under Section 161 was
recorded on 13.12.2009, after two days of
the incident.

30. It is argued that the prosecution
had introduced one more witness projecting
him as an eye witness who is PW-2,
nephew of PW-3, wife of the deceased. As
per own testimony of PW-2, he was
crossing the road besides the field of
Rajeev (deceased) by chance and at around
02.00 PM when he reached on the road
near the tube-well, he heard oral altercation
between Rajeev and Manoj. According to
PW-2, he went on the spot, tried to
intercept and the incident of firing occurred
in his presence. The conduct of this witness
is to be noticed to assess the truthfulness of
his testimony of witnessing the incident.
Admittedly, this witness did not go the
house of the deceased to inform about the
incident nor he took the deceased to the
hospital and left his Aunt, Akhilesh (PW-3)
and his injured uncle Rajeev at the place of
the incident. The statement of PW-2 that he
fled the scene of the occurrence because of
the fear is not acceptable and shakes his
presence on the spot.

31. Moreover PW-3, another eye
witnesses stated, in cross, that other people
who were near the place of the incident did
not come to the tube-well and they were
shouting to save the deceased from the
place where they were standing. They only
came when PW-2, Sri Bhagwan @ Kallu
had fled away from the spot. For the fact
that PW-2 was related to the wife of the
deceased (PW-3), there is a strong
possibility of introducing him as an eye
witness at the instance of PW-1 & PW-3.

32. It is argued that even otherwise,
PW-2 can only be kept in the category of a
chance witness as his presence on the spot
was not natural. In this scenario, his
testimony would require corroboration
from the other material circumstances of
the case and can be relied upon only if it
inspires confidence of the Court on
appreciation with due circumspection and
adequate corroboration. The recoveries
made by the Investigating Officer are also
challenged on various grounds.

33. Lastly, it is argued that as per own
case of the prosecution, there was no
preanimosity
between
the
accusedappellant and the deceased. It is the case of
the prosecution that the incident had
occurred during a sudden quarrel between
two brothers over a trivial issue of watering
their fields from the common tube-well.
Both the alleged eye witnesses stated that
the appellant and deceased were engaged in
oral altercation and they were shouting at
each other, which later turned into physical
and while they were entangled, two fires
were shot by the appellant from his single
barrel licensee gun. The seat of both the
injuries are at the left side back of the chest
and both the injuries are at a short distance
of 3 cm, which further show that there was
no intention of the accused-appellant to kill
the deceased. Moreover, the incident had
occurred in the heat of passion when the
appellant being elder brother lost his cool
as his younger brother started arguing with
him and then became physical. It has come
in the evidence of PW-3, the alleged eye
witness that when the appellant went to the
field he told the deceased to allow him to
water his field from the common tube-well
but the deceased did not agree to that by
saying that he was already watering his
field and let him finish it first and that the
appellant should wait.

34. The contention is that for the
above sequence of events proved from the
814 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution evidence, the present case does
not fall beyond the scope of the offence
under Section 304 Part-II; i.e. of causing
injuries with the knowledge that it was
likely to cause death but without any
intention to cause death or to cause bodily
injury as is likely to cause death. The
contention is that the conviction of the
appellant under Section 302 IPC is a result
of misappropriation of the evidence and
misapplication of law. The appellant, at the
worst, can be convicted and punished for
the offence 304 Part-II, maximum sentence
for which is 10 years. In the alternative, it
is submitted that in any case, the offence
committed by the appellant cannot travel
beyond Section 304 Part-I. The appellant
has already suffered incarceration for a
period of 12 years as he is lodged in jail
since the date of the arrest i.e. 15.12.2009.
The prayer is that the Court may sustain the
conviction but reduce the sentence to the
period already undergone.

35. To substantiate the above
submissions, reliance is placed on the
decisions
of
the
Apex
Court
in
Pardeshiram Vs. State of Mahdya
Pradesh1, Khuman Singh Vs. State of
Madhya Pradesh2, Udiya Vs. State of
Madhya Pradesh3, Atul Thakur Vs.
State of Himachal Pradesh & others4
Surain Singh Vs. State of Punjab5,
Ravindra Shalik Naik & others Vs. State
of
Maharashtra6,
Vineed
Kumar
Chauhan Vs. State of Uttar Pradesh7,
Sridhar Bhuyan vs. State of Orissa8,
Parkash Chand vs. State of H.P. B9.

36. Learned AGA, on the other hand,
defended the judgement of the trial court
with the assertion that it is established that
the appellant had committed the murder
with full knowledge and intention by the
single barrel licensee gun which he was
carrying at the place of the incident and he
had opened two fires, one after the other.
There is ample evidence against the
appellant
and
the
prosecution
has
succeeded in proving its case beyond
reasonable doubt that the appellant is the
perpetrator of the crime. In light of the oral
testimony of the prosecution witnesses
(PW-2 and PW-3) and the promptness of
the FIR, there is no scope of interference in
the judgement of conviction and sentence
passed by the trial court. It was a day light
murder committed by elder brother on a
trivial dispute with regard to watering of
his field.

37. It is argued that the injuries
inflicted by the appellant were sufficient to
cause death in the ordinary course of nature
and in this circumstances, the appellant
cannot argue that he is not guilty of murder.
A person who inflicts injuries like the
present case, cannot seek shelter of law by
saying that the injuries were accidental or
otherwise unintentional. No such inference
can
be
drawn
from
the
facts
and
circumstances of the present case. The
argument of the learned counsel for the
appellant that the offence committed by the
appellant would fall within the meaning of
Section 304 Part-A or Part II is without any
substance.
There
is
no
question
of
reduction of sentence as the circumstances
of the present case clearly proves that the
appellant had committed murder of his
brother with full knowledge and intention
that the gun shot opened by him would
cause death to his brother. The ingredients
of Section 300 IPC are attracted and the
punishment under Section 302 IPC for
causing murder has rightly been inflicted
by the trial court.

38. On merits, it is argued that both
the eye witnesses are consistent about the
6 All. Manoj Kumar Sharma Vs. State of U.P.
815
manner of occurrence and that the deceased
was killed by the appellant by opening two
gun shots on a trivial issue. The first
information report is a prompt report of the
incident and the first informant also proved
that the deceased had fixed the appellant
being the only perpetrator of the crime. The
contention is that in any case, no leniency
can be shown to the appellant and the
appeal deserves dismissal.

39. Having heard learned counsel for
the parties and perused the record, we may
note that as regards the place of occurrence
of the incident and the manner in which the
incident had occurred, they stand proved
with the statements of the prosecution
witnesses and other material circumstances
on record. The presence of PW-3, wife of
the deceased at the spot cannot be doubted,
in as much as, the incident had occurred
around 02.00 PM when normally wives of
agriculturists would go to the field to bring
their food. PW-3, in a natural manner stated
that she would normally go to the field at
around 10.00-11.00 AM after finishing her
household work and would bring the food
of her husband, if he had not taken food at
home. She also stated that she normally
used to help her husband in agricultural
work like cutting of the weed and spraying
of manure. It has also come in the evidence
that out of four brothers, the agricultural
land was divided and the share of appellant
Manoj
was
separated.
Amongst
the
remaining three brothers, deceased Rajeev
was an agriculturist whereas other two
brother were engaged in their jobs. Their
fields as such were being looked after by
deceased Rajeev. From the statement of
PW-3, it is evident that the deceased was
looking after about 33 bighas of land which
came in the share of three brothers as 11
bighas was separated for the appellant
Manoj. Looking to the enormous nature of
work being done by the deceased Rajeev,
the statement of PW-3 that she was helping
her husband in agricultural work cannot be
discarded.

40. Even otherwise, it has been
proved by the prosecution evidence that
PW-1, the first informant took the deceased
to the hospital with the help of other
villagers through a vehicle known as
'Jugaad' and the inquest of the dead body
was conducted in the Community Health
Centre, B.B. Nagar. As per the inquest
report, the body was kept on a cot in the
Community Health Centre. The first
information report of the incident was
lodged within 1 hour 45 minutes of the
occurrence
after
the
deceased
had
succumbed
to
his
injuries.
The
Investigating Officer went to the spot and
prepared the documentary evidences of the
occurrence after making inspection of the
site. Two empty cartridges were recovered
from the spot which did tally with the
SBBL gun seized from the possession of
the appellant. As per the statement of the
doctor, the injuries caused to the deceased
were sufficient to cause his death. Nothing
contrary could be culled out from the cross
examination of the witnesses (PW-2 &
PW-3) to demolish their presence on the
spot or doubt the prosecution story in any
manner. The occurrence of the incident
resulting in the homicidal death of the
deceased Rajeev at his field near the tubewell at around 02.00 PM stands proved.

41. It is also proved that the appellant
herein namely Manoj Kumar Sharma is the
perpetrator of the crime and the death was
caused during an altercation between the
appellant and the deceased. The suggestion
given by the defence to the witness to
establish that it was an accident are found
without any substance. The presence of the
816 INDIAN LAW REPORTS ALLAHABAD SERIES
eye witnesses on the spot cannot be
doubted and could not be disputed
successfully by the defence. In the said
scenario, the argument raised by the
learned counsel for the appellant that the
crime committed by the appellant would
not fall within the meaning of Section 300
IPC and can only be said to be an offence
of "culpable homicide not amounting to
murder"
attracting
punishment
under
Section 304 IPC, is to be examined.

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

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

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

45. Section 300, however, deals with
''murder'.