# Manoj Kumar Yadav v. State

- **Citation:** (2022) 10 ILRA 674
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-12
- **Case number:** Jail Appeal No. 6645 of 2017
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-yadav-v-state-47774
- **Pages:** 10

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 304modification
of
sentence-accused
murdered his mother in the heat of
passion upon sudden quarrel between him
and his mother(deceased)-accused did not
run away from the crime scene instead he
was crying near the bathroom with
disgrace as per statement of PW-2, PW-3
and
PW-5-there
existed
no
premeditation,
it
was
a
sudden
fightAccording to prosecution witnesses at the
time of incident the accused was not well
and his treatment was going on but the
defence could not produce any medical
evidence about the unsound mind of the
accused-Hence, the conviction of accused
u/s 304 IPC is sustained but the sentence
is modified to the period of incarceration
already undergone by the appellant.(Para
1 to 34)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

674 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that he left his wife at the railway
station for catching train to Bareilly. Her
alleged dead body has been located in a
mysterious manner after about two months
from a public place. The presumption in
law on part of the accused appellant of
explaining the whereabouts of deceased
cannot be pressed so as to obviate the
prosecution of its responsibility to prove
the guilt of the accused appellant by
adducing
cogent
evidence.
Such
presumption could only have been pressed
as corroborative piece of evidence and not
as a substantive piece of evidence. We,
moreover, find that no incriminating
material has been put to the accused
appellant by the prosecution under section
313 Cr.P.C. with regard to presumption in
law on part of accused appellant of
explaining the whereabouts of his wife and,
therefore, this aspect also cannot be pressed
against the appellant.

26. For the reasons recorded above,
we are of the view that the prosecution has
failed to establish the guilt of the accused
appellant beyond reasonable doubt and,
therefore, he is entitled to benefit of doubt
in the matter. The judgement and order of
conviction and sentence dated 25.04.2006
in Session Trial No.122 of 2001 is, thus, set
aside. Since the accused appellant is in jail
for the last 22 years, he shall be released
forthwith, subject to compliance of section
437A of Criminal Procedure Code.

27. We record our appreciation for the
assistance rendered to the Court by Amicus
Curiae Sri Abhishek Sharma in deciding
the appeal and he shall be paid his fee by
the High court Legal Services Authority.
----------
(2022) 10 ILRA 674
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.10.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Jail Appeal No. 6645 of 2017

Manoj Kumar Yadav ...Appellant
Versus
State ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Sita Ram Sharma (A.C.)

Counsel for the Opposite Party:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2)/383 -
Indian Penal Code, 1860-Sections 304modification
of
sentence-accused
murdered his mother in the heat of
passion upon sudden quarrel between him
and his mother(deceased)-accused did not
run away from the crime scene instead he
was crying near the bathroom with
disgrace as per statement of PW-2, PW-3
and
PW-5-there
existed
no
premeditation,
it
was
a
sudden
fightAccording to prosecution witnesses at the
time of incident the accused was not well
and his treatment was going on but the
defence could not produce any medical
evidence about the unsound mind of the
accused-Hence, the conviction of accused
u/s 304 IPC is sustained but the sentence
is modified to the period of incarceration
already undergone by the appellant.(Para
1 to 34)

The appeal is allowed. (E-6)

List of Cases cited:
1. Dahyabhai Chhaganbhai Thakkar Vs St. of
Guj. (1964) AIR SC 1563

2. Pulicherla Nagaraju @ Nagaraja Reddy Vs St.
of A.P. (2006) 11 SCC 444
10 All. Manoj Kumar Yadav Vs. State
675
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. This jail appeal has been preferred
by the appellant-Manoj Kumar Yadav
challenging the judgment and order dated
10th April, 2015 passed by the Additional
District & Sessions Judge, Court No.4,
Kannauj in Sessions Trial No. 262 of 2011
(State Vs. Manoj Kumar Yadav), arising
out of Crime No. 210 of 2011, under
Section 304 I.P.C., Police Station-Tirva,
District Kannauj, whereby the accusedappellant has been convicted and sentenced
to undergo life imprisonment under Section
304 I.P.C. with fine of Rs. 5,000/-, in
default thereof, he has to further undergo
three months additional imprisonment.

2. We have heard Sri Sita Ram,
learned Amicus curiae for the appellant in
the present jail appeal and Ms. Archana
Singh, learned A.G.A. for the State as also
perused the material available on record.

3. Records of the present jail appeal
reveal that on the written report (Exhibitka/1) dated 3rd July, 2011 of the informantP.W.-1, namely, Mishri Lal, which was
scribed by one Harinath Singh, a first
information report was registered under
Section 304 I.P.C. as Chik No. 154/11, on
3rd July, 2011 at 11:00 a.m. alleging
therein that Ramkali wife of the informant
along with her son i.e. accused appellant
herein, went to in-laws' place of her
daughter,
namely,
Sidhashi
wife
of
Raghvendra situated at village-Vilandapur,
Police Station-Tirva, District Kannauj for
treatment of the accused-appellant 10 to 12
days before. On 3rd July, 2022, at around
12.30 a.m. (00:30 hours) at night, during a
fight, the accused-appellant hit a wooden
stick on his mother i.e. wife of the
informant as a result of which she died. As
the dead body was lying on the spot, the
informant came to the Police Station for
giving information about the offence.

4. After lodging of the said first
information report, the panchayatnama
(Exhibit-Ka/2)
of
the
deceased
was
conducted on 3rd July, 2011 at 12:00 p.m.
(noon) after starting the process at 11:00
a.m. In the opinion of the Panch (Inquest)
witnesses, the death of the deceased was
homicidal on account of injuries caused to
the deceased on her head. Thereafter the
dead body of the deceased was sealed and
sent to Mortuary for post-mortem.

5. Dr. S.K. Singh (P.W.-4) conducted
the post-mortem of the dead body on 4th
July, 2022 at 02:30 p.m. and his report is
on record as Exhibit-Ka-3 as per which the
deceased was nearly 60 years of age and
had died due to shock and hemorrhage as a
result of following ante-mortem injuries:

"Lacerated wound left temporal
region 5 cm. X 1 cm. underlying bone
fractured and depressed;

(ii) Contusion right side forehead
7 x 2 cm. just above right eyebrow;

(iii) fractured ribs 4th, 5th and
6th left side chest.

6. Investigation proceeded and P.W.-
5/Investigating
Officer,
namely,
SubInspector Parshuram Nirala has recorded
the statements of the informant, scriber of
the written report and other witnesses. The
Investigation Officer went to the spot and
prepared the chalan lash, photo lash. He
also prepared site plan and collected plain
earth, blood stained earth, blood stain from
the cot and the stick containing blood,
whereafter upon conclusion of statutory
676 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation under Chapter XII Cr.P.C.,
charge-sheet came to be submitted against
the accused appellant by the Investigating
Officer on 15th July, 2011 (Exhibit-Ka/11).

7. On submission of charge-sheet, the
concerned Magistrate took cognizance in
the matter and committed the case to the
Court of Sessions by whom the case was to
be tried. On 14th November, 2011, the
concerned Court framed following two
charges against the accused-appellant:

"मैं
िन्द्रपाल
चवशेि
न्यायाधीश
ए 0 ी0ए 0टी0 एक्ट. कन्नौज में अचियुक्त मिोज
कुमार यादव को चिम्न आरोप े आरोचपर् करर्ा हुँ।

यह चक चद- 2/3-7-11 को मय करीब
राचत्र 12.30 बजे स्थाि ग्राम चबलन्दापुर मकाि रावेन्द्र
च िंह यादव थािा चर्रवा चजला कन्नौज के क्षेत्राचधकार में
आपिे वादी चमश्रीलाल की पत्नी रामकली के च र में
िण्डा मार चदया चज े उ की मृत्यु हो गयी है। इ
प्रकार आपिे हत्या की कोचट में आिे वाले आपराचधक
मािववध का अपराध काररर् चकया। इ प्रकार
आपिे िा0द0 0 की धारा 304 के अधीि दण्डिीय
अपराध काररर् चकया जो न्यायालय के प्र िंज्ञाि में है।

......."

The charges were read out to the
accused-appellant,
who
denied
the
accusation and demanded trial.

8. The prosecution in order to
establish the charges levelled against the
accused-appellant
has
relied
upon
following documentary evidence, which
were duly proved and consequently marked
as Exhibits:

"the
written
report
of
the
informant/P.W.-1 scribed by one Harinath
Singh dated 3rd July, 2011 has been
marked as Exhibit-Ka/1; the chik first
information report dated 3rd July, 2011 has
been
marked
as
Exhibit-Ka/12;
panchayatnama (inquest report) dated 3rd
July, 2011 has been marked as ExhibitKa/2; recovery memo of blood stained &
plain earth dated 3rd July, 2011 has been
marked as Exhibit-Ka/8; the recovery
memo of stained ''Ban' of cot dated 3rd
July, 2011 has been marked as ExhibitKa/9; recovery memo of wooden stick
dated 3rd July, 2011 has been marked as
Exhibit-Ka/10; site plan dated 3rd July,
2011 has been marked as Exhibit-Ka/7,
post-mortem of the deceased dated 4th
July, 2011 has been marked as ExhibitKa/3; and the original charge-sheet dated
15th July, 2011 has been marked as
Exhibit-Ka/11"

9. The prosecution has also adduced
oral testimony of following witnesses:-

"P.W.-1/informant,
namely,
Mishri Lal, husband of the deceased and
father of the accused-appellant; P.W.-2,
namely, Siddhashi who is married daughter
of the deceased and informant and eyewitness of the incident; P.W.-3, namely,
Ravendra Singh son-in-law of the deceased
and informant; P.W.-4, Dr. S.K. Singh,
who conducted the post-mortem of the
deceased; P.W. -5, namely, Parshuram
Nirala retired Sub-Inspector, who was
investigation officer; and P.W.-6, namely,
Constable-2785 Omprakash, who prepared
the Chik fist information report."

10. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused for recording his
statement under section 313 Cr.PC. In his
statement recorded U/s 313 Cr.P.C. the
accused-appellant denied his involvement
in the crime. Accused appellant specifically
10 All. Manoj Kumar Yadav Vs. State
677
stated before the trial court that he has been
falsely implicated in this case. The defence
did not examine any witness from its side.

11. On the basis of above evidence
adduced during the course of trial, the court
below has found the accused-appellant
guilty of murdering the deceased beyond
reasonable doubt after recording following
finding:

"i). the prosecution case that after
an altercation, the accused hit the deceased
with a stick, due to which she sustained
injuries and resultantly died has fully
corroborated with the post-mortem and the
statement of P.W.4, who conducted the
post-mortem;

ii). plea of the defence that at the
time of incident the mental condition of the
accused-appellant was not good cannot be
accepted on the ground that no medical
certificate or evidence in that regard has
been produced during the course of trial as
also on the ground that as per the postmortem report, it is established that the
death of the deceased is due to the injuries
sustained on her body before her death and
the accused-appellant hit her repeatedly till
she died.

iii). The plea taken by the defence
that no one has seen the incident with
his/her own eyes cannot be accepted on the
ground that P.W.-2 has specifically stated
in her examination-in-chief as well as in
her cross-examination that the accusedappellant has committed the said offence
by hitting her with the help of a wooden
stick. There is no inconsistency or
contradiction in the statement of P.W.-2,
either in her examination-in-chief or crossexamination, even the accused-appellant
had moved towards P.W.-2 with the stick
from which it is established that the
accused-appellant wanted to kill P.W.2
also;

iv). In this way the prosecution
statement is proved on the basis of the
statements of the witnesses and the medical
report shows the criminality of the accused.
Resultantly, the guilt is proved against the
accused-appellant
beyond
reasonable
doubt.

12. Being aggrieved with the
impugned
judgment
and
order
of
conviction passed by the trial court, the
accused-appellant has preferred the present
jail appeal.

13. The submission of the learned
Amicus Curiae appearing for the accusedappellant is that the accused-appellant is
innocent and has been falsely implicated.
Next submission is that the accusedappellant is of unsound mind and has not
committed the said offence and as the
altercation took place between the deceased
the accused-appellant, at the spur of the
moment
the
said
offence
has
been
committed. Further submission is that the
accused-appellant has no motive to kill his
own mother i.e. the deceased. The
argument is that the accused-appellant has
no previous or any subsequent criminal
antecedents to his credit except the present
one. Next submission is that looking to the
oral as well as documentary evidence
brought on record, the sentence awarded to
the accused-appellant under Section 304
I.P.C., is highly excessive. The maximum
punishment which could be imposed upon
the accused-appellant is 10 years under
Section 304 Part II I.P.C. The learned
Amicus Curiae appearing for the accusedappellant lastly submits that since the
incident in question occurred on a spur of
678 INDIAN LAW REPORTS ALLAHABAD SERIES
moment and in the heat of passion upon
sudden quarrel, the same would be covered
under the 4th Exception to Section 300
I.P.C., which reads 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."

On the cumulative strength of the
aforesaid,
learned
Amicus
Curiae,
appearing for the appellant submits that the
sentence is excessive and ought not be
sustained and the order of sentence must be
modified taking lenient view in the matter.

14. Per contra, Mrs. Archana Singh,
learned A.G.A. for the State, supporting the
judgment and order of conviction, submits
that the impugned judgment and order of
conviction does not suffer from any
illegality and infirmity so as to warrant any
interference by this Court. As such the
present jail appeal filed by the accused
appellant who committed heinous crime by
murdering the deceased is liable to be
dismissed.

15.

We
have
considered
the
submissions made by the learned counsel
for the parties and have carefully examined
the original records of the case as well as
the impugned judgment and order of
conviction challenged before us.

16. It is in the context of above
submissions and materials placed on record
before the Court that this Court is required
to consider as to whether the prosecution
has established the guilt of accusedappellants on the basis of above evidence
beyond reasonable doubt?. For examining
the same, it is important for us to record
statements of the prosecution witnesses in
brief.

17. P. W. 1/Informant, namely,
Mishri Lal in his examination has stated
that his wife's name was Ramkali (since
deceased). He has a daughter, namely,
Siddhashi. whose marriage was solemnized
with Ravendra of village Vilandapur.
Accused-appellant is his son and his mental
balance was disturbed. He has further
stated that about three years ago, he had
gone to his daughter in-laws' house for the
treatment of the accused-appellant with the
deceased. After staying there for three
days, he came to his village leaving the
deceased and the accused-appellant. P.W.-1
has further stated that at the time when the
accused-appellant and the deceased went to
the place of his daughter at Vilindapur, the
mental condition of the accused-appellant
was not good. He had gone to Vilindapur
for the treatment of the accused-appellant.

18. In the cross-examination, P.W.-1
has stated that he came to know about the
accused-appellant thrashing the deceased.
He had not seen anything with his own
eyes. The accused-appellant was also sad
and crying because of his mother's death.
He has also stated that he brought the
accused-appellant to his daughter's place
after getting treatment from Kanpur, Agra
and Lucknow. The mental balance of the
accused-appellant was going bad for 10-11
years. After the incident, he had seen the
accused-appellant in the police station.

19. P.W.-2, namely, Siddhashi, who is
according to the prosecution an eye witness
of the incident, has stated that the accusedappellant is her younger brother. He used to
have poor mental balance. About three and
10 All. Manoj Kumar Yadav Vs. State
679
a half years ago, her parents i.e. the
deceased and P.W.-1/informant came to her
house to get treatment for the accusedappellant. P.W.-1 went back to his village
after leaving the deceased and the accusedappellant and they were living with her.
She has further stated that on the night of
02/03 July 2011, the deceased and the
accused-appellant were sleeping in the
verandah of the house, while she was
sleeping in the room with her kids. Since
her husband i.e. P.W.3 works in a mill, he
went on duty. When she came out of the
room after hearing scream of the deceased
at around 12.30 in the night, she saw that
the accused-appellant was standing near the
door with a stick. When he walked towards
her, she ran for her life inside the room.
She made a noise. The accused-appellant
had hit the deceased with a stick due to
which she died. She has further stated that
her husband i.e. P.W.-3 had come back
from duty in the morning. P.W.-1 was
informed about the entire incident. She has
then stated that the accused-appellant had
killed the deceased by hitting her with a
stick. She has stated that the accusedappellant's mental balance was not good.
Due to his lack of mental balance, he used
to do strange things. He had poor mental
balance even on the night of the incident.
The deceased and P.W.-1 had brought the
accused appellant to her place for treatment
and exorcism. In her cross examination,
P.W.-2
has
stated
that
when
the
Investigating Officer inquired her about the
incident she has narrated the same by
stating that the accused-appellant had hit
the deceased. P.W.-2 has further stated that
her husband was doing duty in the mill on
the day of the incident. The deceased and
the accused-appellant were lying down in
the verandah at the time of incident . The
deceased was dead when she came down
through stairs. On the spot, it was she and
her children. When she came to the
deceased, the accused-appellant walked
towards her with a stick.

20. P.W.-3, namely, Ravendra Singh,
husband of P.W.-2 and son-in-law of the
deceased and informant, has stated that the
accused-appellant is his brother-in-law.
Since the accused-appellant was ill, the
deceased and P.W.-1/informant came to his
house for his treatment about three and half
years ago. P.W.-1, leaving the deceased
and the accused-appellant at his house,
went back to his village Bangaramau. He
has further stated that since he works as a
Guard in Uttar Pradesh Setu Department
Corporation, on 02.07.11 he left his house
for duty. He did his duty overnight and
reached home on 03.07.11 at around 07.00
in the morning after completing his duty,
he saw that the deceased had died in the
verandah outside the house, the accusedappellant was sitting silently near the
bathroom. His wife i.e. P.W.1 was crying
and she told him that at around 12 to 01
a.m./p.m. the accused-appellant has killed
the deceased by hitting her with a wooden
stick. She also told him that the accusedappellant had killed the deceased by hitting
her with a stick in front of her. After that,
P.W.1 was called. In the cross-examination,
P.W.-3 has stated that on the date when
P.W.-1, the deceased and the accusedappellant came to his house, the accusedappellant was mentally unsound. They had
brought him for treatment and exorcism.
The accused-appellant's mental balance
was not good even on the day of the
incident. He was not aware that the
accused-apellant had beaten his mother
before this incident.

21. P.W. 4. namely, Dr. S.K. Singh,
in his examination has stated that he has
conducted the post mortem of the deceased
680 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramkali aged about 60 years. He has
further stated that in his opinion the death
of the deceased, was due to excessive
bleeding and shock from pre-death injuries.
He has further stated that injury number 1
can also come from the bar. Injury number
01 and 02 is possible to come from the
same object. No wound was visible from
outside in injury number 03. He has further
stated that the temporal bone was broken
under the head injury. The temporal bone
was broken on several sides.

22. P.W.-5, namely, Parshuram
Nirala, retired from the post of SubInspector,
who
has
conducted
the
investigation, has stated in his examination
that after taking over the investigation, he
reached the spot for panchyatnama. After
filling the Panchayatnama of the dead
body, he prepared other papers. The dead
body was sealed and sent to the Mortuary
for post-moretem in the presence of P.W.-
5. He has also prepared the site plan and
From the spot, plain soil ,blood-stained
soil, blood-stained cot and a wooden stick
with blood were taken in the possession of
P.W.-5. On the basis of the evidence
against the accused, under the charge under
section 304 IPC, the charge sheet was
submitted by P.W.-5. He has further stated
that he saw the wounds of the deceased.

23. P.W.-6, namey, Constable 2785
Omprakash has prepared the chik first
information report on the basis of written
report of the informant and also proved the
same.

24. So far as the plea of mental
unsoundness of the accused-appellant taken
on behalf of the appellant before this Court
as well as before the trial court is
concerned, we may record that the said plea
has been rejected by the trial court on the
ground that the defence has failed to
produce any medical evidence certifying
that at the time of incident, the accused was
of unsound mind. It is no doubt true that
the defence has not been able to produce
any medical evidence about the unsound
mind of the accused at the time of incident,
but from perusal of the first information
report and the statements of the prosecution
witnesses nos. 1 to 3, it is crystal clear that
at the time of incident, the accusedappellant was not well and his treatment
was going on and for the said purpose, the
deceased went to in-laws' place of her
daughter along with the accused-appellant,
where the incident happened.

25. For arriving at a logical
conclusion, it would be worthwhile to
reproduce the judgment of the Apex Court
in the case of Dahyabhai Chhaganbhai
Thakkar Vs. State of Gujrat, reported in
AIR 1964 S.C. 1563, wherein the Apex
Court held "when a plea of legal insanity is
set up, the Court has to consider whether at
the time of commission of the offence the
accused, by reason of unsoundness of
mind, was incapable of knowing the nature
of the act or that he was doing what was
either wrong or contrary to law. The crucial
point of time for ascertaining the state of
mind of the accused is the time when the
offence was committed. Whether the
accused was in such a state of mind as to be
entitled to the benefit of Section 84 of the
Indian Penal Code can only be established
from the circumstances which preceded,
attended and followed the crime." The
Apex Court, however, considered the
relevant circumstances and found that the
appellant did not murder his wife in a fit of
insanity and dismissed the appeal.

26. For ascertaining the aforesaid plea
of legal insanity, the Apex Court has made
10 All. Manoj Kumar Yadav Vs. State
681
following observations in the case of
Dahyabhai
Chhaganbhai
Thakkar
(Supra):

"There is no conflict between the
general burden to prove the guilt beyond
reasonable doubt, which is always on the
prosecution and which never shifts, and the
special burden that rests on the accused to
make out his defence of insanity. (ii) The
doctrine of burden of proof in the context of
the plea of insanity may be stated in the
following propositions:(1).The prosecution
must prove beyond reasonable doubt that the
accused had committed the offence with the
requisite, mensrea; and the burden of proving
that always rests on the prosecution from the
beginning to the end of the trial. (2) There is a
rebuttable presumption that the accused was
not insane, when he committed the crime, in
the sense laid down by Section 84 of the
Indian Penal Code: the accused may rebut it
by placing before the court all the relevant
evidence-oral, documentary or circumstantial,
but the burden of proof upon him is no higher
than that which rests upon a party to civil
proceedings. (3) Even if the accused was
not able to establish conclusively that he
was insane at the time he committed the
offence, the evidence placed before the
court by the accused or by the prosecution
may raise a reasonable doubt in the mind
of the court as regards one or more of the
ingredients of the offence, including mens
rea of the accused and in that case the
court would be entitled to acquit the
accused on the ground that the general
burden of proof resting on the prosecution
was not discharged."

27. From perusal of the entire
evidence brought on record specially the
statement of P.W.-2, who is none other
than the married daughter of the deceased
and sister of the accused-appellant as the
post-mortem report of the deceased, it is
apparently clear that on the date of
incident, there was an altercation between
the deceased and the accused-appellant and
suddenly in a fit of anger, he attacked his
mother with a stick due to which she
sustained injuries and died. Therefore, it is
discernable that it is the accused-appellant
who has committed the offence but he had
no motive or intention to do the same
specifically with his mother, who was
making all efforts for his treatment.

28. In Pulicherla Nagaraju @
Nagaraja Reddy Vs. State of Andhara
Pradesh reported in (2006) 11 SCC 444 in
paragraph-29, the Apex Court has opined
that the court should proceed to decide the
pivotal question of intention, with care and
caution, as that will decide whether the case
falls under Section 302 or 304 Part 1 or 304
Part II. In many petty or insignificant matters,
plucking of a fruit, straying of cattle, quarrel
of children, utterance of a rude word or even
an
objectionable
glance,may
lead
to
altercations and group clashes culminating in
deaths. Usual motives like revenge, greed
jealously or suspicion may be totally absent
in such cases. There may be no intention.
There may be no premeditation. In fact, there
may not even be criminality. At the other end
of the spectrum, there may be cases of
murder where the accused attempts to avoid
the penalty for murder by attempting to put
forth a case that there was no intention to
cause death. It is for the courts to ensure that
the cases of murder punishable under Section
302, are not covered into offences punishable
under Section 304 Part-I/II, or cases of
culpable homicide not amounting to murder,
are treated as murder punishable under
Section 302.

29. On going through the entire
evidence on record, we find that the
682 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary
ingredients
to
attract
4th
Exception to section 300 IPC are clearly
present in the facts of the present case
inasmuch as death is caused; there existed
no pre-meditation; it was a sudden fight;
the offender has not taken undue advantage
or acted in a cruel or unusual manner,
therefore, the case in hand clearly falls
under fourth exception to section 300 IPC.

30. The issue relating to quantum of
sentence under Section 304 I.P.C. depends
on
background
facts
of
the
case,
antecedents of the accused, whether the
assault was premeditated and pre-planned
or not, etc. There are no straight jacket
formulae for the determination of the same
in law.

31. In view of the above discussions
and deliberations, we are of the considered
opinion
that
although
the
accusedappellant/defence has not been able to
establish
the
plea
of
his
mental
unsoundness at the time he has committed
the said offence by not producing any
medical evidence in support of the said plea
during the course of trial but it is to kept in
mind by us that the accused-appellant had
no motive or intention to commit the said
offence. The said offence has been
committed by the accused-appellant on a
spur of moment and in the heat of passion
upon sudden quarrel between him and his
mother (deceased), as is evident from the
statement of P.W.-2. It is also not in dispute
that the accused-appellant was not entirely
well and was under treatment, as is clearly
discernable from the statements of the
prosecution witnesses. It is also to be kept
in mind that after committing the said
crime, the accused-appellant had not run
away from the crime scene like other
notorious criminals. When the accusedappellant's anger subsided, he felt a lot of
disgrace and remorse and was crying near
the bathroom of the house in question, as is
evident from the statement of P.W.-2,
P.W.-3 and P.W.-5. Seeing the aforesaid
circumstances we are of the view that the
quantum of sentence to life imprisonment
under Section 304 I.P.C. as awarded under
the impugned order of sentence is too harsh
in the facts of the present case.

32. Attention of the Court has been
invited to the statement of Investigating
Officer as per which the appellant was
arrested on 05.07.2011 and even at the time
of pronouncement of judgment by the court
below, the appellant was in jail. He has
been enlarged on bail by this Court on
23.08.2022. The appellant therefore has
undergone incarceration without remission
of more than 11 years. With remission the
period of incarceration would be more than
13 years.

33. Accordingly, we modify the
impugned
judgment
and
order
of
conviction passed by the trial court by
holding that the conviction of accused
appellant under Section 304 IPC is
sustained but the sentenced is modified to
the
period
of
incarceration
already
undergone by the appellant.

34. Accordingly, the present appeal
succeeds in part.

35. Since the accused-appellant is
reported to be on bail, he needs not be
surrender subject to compliance of Section
437-A Cr.P.C., unless he is wanted in any
other case.

36. Learned Amicus Curiae, for the
appellant shall be entitled to his fee from
the High Court Legal Services Authority,
as per the rules.
10 All. Minor 'X' Through His Natural Guardian Father 'Y' Vs. State of U.P. & Anr.
683

37. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Kannauj, henceforth, for doing the needful
in terms of this judgment.
----------
(2022) 10 ILRA 683
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Criminal Revision No. 71 of 2022

Minor 'X' Through His Natural Guardian
Father 'Y' ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Sri Pramod Kumar Srivastava

Counsel for the Opposite Parties:
G.A., Sri Akhilesh Bharti, Sri Narendra
Singh

Criminal Law - Juvenile Justice (Care and
Protection of Child) Act, 2015 - Sections
12, 12(1) & 102 - Protection of Children
From Sexual Offences Act,2012 - Sections
3 & 4 - Indian Penal Code,1860 - Sections
376
&
506,
-
Criminal
Procedure
Code,1973 - Section - 161, - Scheduled
Castes and Scheduled Tribes Prevention of
Atrocities Act, 1989 - Section- 3(2)(5) :-
Criminal Revision - against rejection of Bail
Application & appeal - FIR - offence of rape &
threat to a 8 years of girl child - while rejecting
the Bail of accused (minor) revisionist the
Juvenile board observed that, the provisions of
Juvenile Justice Act do not mean that once the
person is adjudged juvenile, he is entitled to
bail, irrespective of all other factors - court firm
that, when considering the bail, the matter is to
be assessed from the angle of the - (i) principle
of best interest of the juvenile, (ii) angle of the
demand of justice of both sides and (iii) also
concern of the society at large - the law needs
constant U.P.dation of meaning to achieve the
goals set in the St.ment of objects and reasons
at the time of enactment - thus, release shall
defeat the ends of justice - impugned orders
cannot be faulted and the revision is liable to be
dismissed. (Para - 13, 14, 15)

Criminal Revision dismissed. (E-11)

List of Cases cited:

1. Amit kUmar Vs St. of U.P., Criminal Revision
No. 2732/2010 - decided on 14.09.2010

2. Kanchan Sonkar Vs St. of U.P. - Criminal
Revision No. 1266 of 2020 decided on
01.12.2020

3. Amit Vs St. of U.P., Criminal Revision No.
1852 of 2015, decided on 16.03.2016

4. Prakash Vs St. of Rajj. - 2006 Crl. L.J. 1373,

5. Vijendra Kumar Mali Vs St. of U.P. - 2003 (1)
JIC 103,

6. Om Prakash Vs St. of Raj. & anr., (2012) 5
SCC 201,

7. Mangesh Rajbhar Vs St. of U.P. & anr., 2018
(2) ACR 1941.

(Delivered by Hon'ble Mrs. Jyotsna
Sharma, J.)

1. It appears that name of the
revisionist-juvenile has been disclosed in
the memo of revision. This fault from the
side of revisionist escaped detection by the
Registry. The concerned Officer of the
Registry is directed to delete the name of
the revisionist-minor from the title of the
revision as fed and shown in the data on
official website and represent him as
"Minor
'X'
Through
His
Natural
Guardian Father 'Y".

2.

Heard
Sri
Pramod
Kumar
Srivastava,
learned
counsel
for
the