# Narendra & Anr v. State of U.P

- **Citation:** (2023) 5 ILRA 1004
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-15
- **Case number:** Criminal Appeal No. 6870 of 2007
- **Bench:** Dr. Kaushal Jayendra Thaker, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-anr-v-state-of-u-p-50066
- **Pages:** 17

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 307,
147, 148 & 149 - Challenge to-Convictionaccused/appellants committed offence on
a spur of moment and in the heat of
passion upon sudden quarrel between
them which is evident from the testimony
of PW-2 and PW-3-accused persons were
already irrigating their field with the help
of farming equipment like axe, spades ,
sickles etc when the deceased asked them to
give water because it was his turn all the
accused got annoyed and hit their spade on
the neck of the deceased-Prosecution has
succeeded to prove the guilt of the accused
but the trial court is not justified in convicting
and sentencing the accused as the incident
occurred without premeditation or planning of
attack,
therefore,
it
would
fall
within
Exception 4 to Section 300 IPC and the
conviction of the accused would fall u/s 304
Part -I IPC and not under Section 302 IPCThe issue relating to quantum of sentence u/s
304 IPC depends on background facts of the
case, antecedents of the accused, whether the
assault was premeditated and pre-planned or
not, etc.(Para 1 to 53)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,661 of 57,288. This is a partial read: ask again with offset=39661 for what follows._

1004 INDIAN LAW REPORTS ALLAHABAD SERIES
would be difficult to be proved. In this
regard, a suggestion was also made to the
P.W.-9 who denied the same. There is an
important element with regard to lack of
adequate lighting at the site and so it is
doubtful that the P.W.-1 could have
actually seen the faces of the accused from
a distance of 67 steps on a winter night. As
narrated above, the conduct of the PW-1,
after the incident, is itself unnatural. Given
the entire facts the circumstances, as
narrated above, the accused persons are
entitled to benefit of doubt. The case of the
prosecution has not been proved beyond
reasonable doubt.

54. Under the circumstances, the
present criminal appeal is allowed and the
accused are acquitted giving them the
benefit of doubt. The accused shall be
released from jail as per law if their
incarceration is not required in any other
case after compliance of Section 437-A of
the Cr.P.C.. Let a copy of this judgment be
sent to the trial court forthwith.
----------
(2023) 5 ILRA 1004
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.05.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6870 of 2007
with
Criminal Appeal No. 6869 of 2007

Narendra & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri R.K. Sharma, Sri Anoop Trivedi, Sri Awadh
Sharma, Sri D. N. Wali, Sri Dhiresh Kumar, Sri
Lav Srivastava, Sri Noor Mohammad, Sri
Shivakant, Sucheta Pathak, Sri Sudeep Kumar
Pathak, Sri V.C. Mishra, Sri Irshad Mohammad

Counsel for the Respondent:
Govt. Advocate, Sri Ashok Kumar Pandey, Sri
Murlidhar, Sri Rahul Raghav, Sri S.P.S. Raghav

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 302, 307,
147, 148 & 149 - Challenge to-Convictionaccused/appellants committed offence on
a spur of moment and in the heat of
passion upon sudden quarrel between
them which is evident from the testimony
of PW-2 and PW-3-accused persons were
already irrigating their field with the help
of farming equipment like axe, spades ,
sickles etc when the deceased asked them to
give water because it was his turn all the
accused got annoyed and hit their spade on
the neck of the deceased-Prosecution has
succeeded to prove the guilt of the accused
but the trial court is not justified in convicting
and sentencing the accused as the incident
occurred without premeditation or planning of
attack,
therefore,
it
would
fall
within
Exception 4 to Section 300 IPC and the
conviction of the accused would fall u/s 304
Part -I IPC and not under Section 302 IPCThe issue relating to quantum of sentence u/s
304 IPC depends on background facts of the
case, antecedents of the accused, whether the
assault was premeditated and pre-planned or
not, etc.(Para 1 to 53)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Mekala Sivaiah Vs St. of A.P. (2022) SCC
Online SC 887

2. Pulicherla Nagaraju Vs St. of A.P. (2006) 11
SCC 444: (2007) 1 SCC (Cri) 500]

3. Arjun & anr. Etc. Etc. Vs State of
Chhattishgarh 2017 0 Supreme (SC) 152,

(Delivered by Hon'ble Shiv Shanker
Prasad, J.)
5 All. Narendra & Anr. Vs. State of U.P.
1005

1. These two criminal appeals have
been preferred by the accused-appellantsRaghnath, Satendra, Pappan, Narendra and
Pappi challenging the judgment and order
dated 25th September, 2007 passed by the
Special Judge (E.C. Act), Meerut in
Sessions Trial No. 862 of 2002 (State Vs.
Narendra & Others), arising out of Case
Crime No. 135 of 2002, under Sections
147, 148, 307, 302 and 506 I.P.C., Police
Station-Jani, District-Meerut, whereby the
accused-appellants, namely, Narendra and
Pappi have been convicted under Sections
302, 147, 148 and 149 I.P.C., whereas
accused-appellants,
namely,
Raghunath,
Satendra and Pappan have been convicted
under Sections 307, 147, 148, 149 I.P.C.
and sentenced (i) the accused-appellants,
namely, Narendra and Pappi to undergo life
imprisonment under Section 302 read with
Section 149 I.P.C. with fine of Rs. 10,000/
and further to undergo one year rigorous
imprisonment under Sections 147 and 148
I.P.C.;
(ii)
accused-appellants
namely,
Raghunath,
Satendra
and
Pappan
to
undergo seven years rigorous imprisonment
under Sections 307 read with Section 149
I.P.C. with fine of Rs.5,000/- and further to
undergo one year rigorous imprisonment
under Sections 147 and 148 I.P.C. with an
observations that all sentences were to run
concurrently and in default of payment of
fine, all the accused-appellants are to
further undergo one months additional
imprisonment.

2. We have heard Mr. Noor
Mohammad and Mr. Irshad Mohammad,
learned counsel for the accused-appellants
and Mr. N.K. Srivastava, learned A.G.A.
for the State as also perused the material
available on record.

3. Since the basic facts and legal
question of issues are same in both these
appeals, they have been clubbed and heard
together and are being decided by means of
this
common
judgment
treating
the
Criminal Appeal No. 6870 of 2007
(Narendra & Another VS. State of U.P.) to
be the leading case.

4. Records of the present criminal
appeals reveal that on the written report
(Exhibit-ka/4) dated 18th May, 2002 of the
informant-P.W.-4, namely, Krishna Pal
Singh, a first information report ( Exhibitka/9) was registered as Case Crime No. 135
of 2002 under Sections 147, 148, 307, 302
and 506 I.P.C. on 18th May, 2002 at 12:30
p.m. against five accused persons, namely,
Narendra @ Kallan, Satendra @ Billu,
Pappi, Raghunath and Pappan alleging
therein that his brothers Ravindra Kumar
and Vinod went to their field on tractor at
about 6:00 am. in the morning as it was
their turn for irrigation. However, when
they arrived at their field, they saw that
Narendra @ Kallan, Satendra @ Billu,
Pappi, Raghunath and Pappan resident of
village Bafar, P.S.Jani, District Meerut,
were already watering their field. Ravindra
asked the accused=-appellants to give water
because it was his turn on which all
accused persons got annoyed and exhorted
to finish him as he often disputed for water
for the purpose of irrigating his field. The
accused-appellants Narendra @ Kallan and
Pappi hit the neck of Ravindra Kumar with
spades resulting into his instant death. The
accused-appellants Raghunath and Satendra
caught hold of another brother of the
informant, namely, Vinod and the accusedappellant Pappan inflicted one spade injury
on the neck of Vinod. This incident was
seen by Sheeshpal and Brijpal, who were
working on their fields along with other
people, who were coming and going from
there.
This
incident
took
place
on
18/5/2002 at about 11:30 a.m.. The dead
1006 INDIAN LAW REPORTS ALLAHABAD SERIES
body of brother of the informant, namely,
Ravindra was lying on the spot.

5. After lodging of the said first
information
report,
the
inquest
(panchayatnama) (Exhibit-Ka/2) of the
deceased Ravindra was conducted by P.W.-
5 Sub-Inspector Sanjeev Singh Rathaur. In
the
opinion of
the Panch
(Inquest)
witnesses, the death of the deceased was on
account of injuries caused to the deceased
on his body. Thereafter the dead body of
the deceased was sealed and sent to
Mortuary for post-mortem.

6. Dr. Ashok Kumar Dua (P.W.-1)
conducted the post-mortem of the dead
body of the deceased Ravindra on 19th
May, 2002 at 02:30 p.m. and his report is
on record as Exhibit-Ka-1 as per which the
death of deceased was due to shock and
hemorrhage as a result of following antemortem injuries:

"1. Incised wound 4 cm x 1 cm x
muscle deep on front of left side of neck 2
cm above left clavicle.

2. Incised wound 5 cm x 2 cm x bone
deep on the back of neck 4th cervical
vertebrae cut spinal cord lacerated."

7. Dr. Raj Kumar (P.W.-6) has
conducted the medical examination of
injured Vinod Kumar (P.W.-2) on 18th
May, 2002 at 06:20 p.m. P.W.-6 has found
following injuries on the persons of P.W.-2:

"1.Incised wound 6.0 cm x 0.7 cm x
muscle on back of left side chest 6.5 cm
behind and below of left ear lobule
updown.

2. Abrasion 1.2 cm x 0.2 cm on right
side neck, middle part.

3. Reddish contusion 2 cm x 1 cm on
back of left side abdomen.

4. Complaint of pain in right side
chest.

5. Complaint of pain in right upper
arm."

In medical examination report of P.W.-
2, P.W.6 has opined that the injuries are
fresh and simple in nature and injury no.1
was caused by sharp edged object, injury
no.2 by friction and injury no.3 by blunt
and hard object.

8. Investigation proceeded and P.W.-
8/Investigating
Officer,
namely,
SubInspector R.N. Singh Yadav has recorded
the statements of eye witness Sheeshpal
and informant Krishna Pal Singh (P.W.-4).
He inspected the place of occurrence along
with the informant, he also prepared the
site plan which was marked as Exhibit-ka11 and again recorded the statements of the
witnesses at the place of occurrence. He
also collected the blood stained earth and
plain earth and prepared recovery memo of
them, whereafter upon conclusion of
statutory investigation under Chapter XII
Cr.P.C., charge-sheet came to be submitted
against the accused appellants, namely,
Raghunath, Satendra, Narendra, Pappi and
Pappan under Sections 147, 148, 307, 302
and 506 I.P.C. by the Investigating Officer
on 26th May, 2002.

9. 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 13th September, 2002, the
concerned Court framed charges under
Sections 147, 307, 149 I.P.C. against the
accused Raghunath and Satendra; under
Sections 148, 302, 149 I.P.C. against the
accused
Narendra
and
Pappi;
under
Sections 148, 307, 302/149 I.P.C. against
the accused Pappan. On 29th May, 2003,
5 All. Narendra & Anr. Vs. State of U.P.
1007
the concerned Court framed supplementary
charges, under Sections 147, 307, 149
I.P.C. against the accused Narendra and
Pappi; and under Sections 148, 302/149
I.P.C. against the accused Raghnath and
Satendra and under Section 147 I.P.C.
against the accused Pappan.

10. The charges were read out and
explained in Hindi to the accusedappellant, who denied the accusation and
demanded trial.

11. 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:

"Exhibit-ka/1- Post Mortem report of
deceased Ravindra Kumar;

Exhibit-ka/2- Panchayatnam of the
body of deceased Ravindra Kumar;

Exhibit-ka/3 - Opinion of inquest
witnesses qua deceased Ravindra Kumar;

Exhibit-ka/4 -Written Report given by
the informant/P.W.4 Krishna Pal Singh;

Exhibit-ka/4A-Photo Lash;

Exhibit-ka/5- Police Form No. 13;

Exhibit-ka/6- Letter of Sanjiv Singh
Rathor, S.I.P, S, Jani, address to R.I.Police
Lines, for conducting Post-mortem of
deceased;

Exhibit-ka/7-letter to Chief Medical
Superintenent of P.L. Sharma Hospital,
Meerut;

Exhibit-ka/8- Injury report of Vinod
Kumar (P.W.-2);

Exhibit-ka/9- Chik FIR;

Exhibit-ka/10- copy of G.D. of P. S.
Jani dt. 18/5/02;

Exhibit-ka/11- Site plan of place of the
incident;

Exhibit-ka/12-
Recovery
memo
regarding blood stained earth and plain
earth;

Exhibit-ka/13-Recovery
memo
of
spade;

Exhibit-ka/14-Site
plan
regarding
recovery of Spade; and

Exhibit-ka/16-Charge sheet."

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

"P.W.1- Dr. Ashok Kumar Dua, who
conducted the post-mortem of the body of
the deceased Ravindra Kumar;

P.W.2 Vinod Kumar, brother of the
informant/P.W.4 and deceased Ravindra
Kumar, who claimed to be an injured and
eyewitness of the incident;

P.W.3- Brijpal, who claims to be
independent eye-witness of the incident;

P.W.4-Krishnapal Singh, informant,
who happens to be the brother of the
deceased Ravindra and injured Vinod
Kumar (P.W.-2);

P.W.-5- Sub-Inspector Sanjeev Singh
Rathor,
who
prepared
the
inquest
(panchayatnama) of the deceased Ravindra
Kumar;

P.W.6- Dr. Raj Kumar, who medically
examined the injured Vinod Kumar (P.W.-
2);

P.W.7 Constable-1198 Ranvir Singh,
who prepared the chik FIR and proved the
same; and

P.W.8 Sub-Inspector R.N. Singh Yadav,
who has conducted the investigation and
submitted the charge-sheet."

13. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused for recording his
statement under section 313 Cr.PC. In their
statements recorded U/s 313 Cr.P.C. the
accused-appellants denied his involvement
1008 INDIAN LAW REPORTS ALLAHABAD SERIES
in
the
crime.
Accused
appellants
specifically stated before the trial court that
they have been falsely implicated in this
case. They further stated that the present
criminal case was instituted due to enmity
between them. False report has been lodged
and false charge sheet has been submitted
against them. The alleged injured Vinod
Kumar (P.W.-2) being the elder brother of
deceased Ravindra, also is giving false
evidence against them. Accused Raghunath
has stated in his statement that he has
purchased the land of Shodan son of Solhu
and Vijalpal, who is the brother of Brijpal
(P.W.-3). The informant Krishnapal Singh
(P.W.-4) wanted to purchase the said land,
due to which he harboured enmity. The
informant (P.W.-4) has purchased the land
of Brijpal (P.W.-3), which is adjacent to the
land of accused persons but there is no road
(Rasta). The complainant/informant wanted
road (Rasta) through the said land but the
same is chak road of accused persons
which they had refused to give due to
which the informant/P.W.-4 harboured
enmity. They have developed a false case
of watering the field on account of which a
quarrel had taken place. It is further stated
that the drain is private drain of the accused
persons and there is no turn on this drain.
The deceased Ravindra was of criminal
nature. He was involved in several heinous
offences like murder etc. He was fond of
gambling and he had several other
companions. He often used to enter into
scuffle with his family members and he
used to assault his wife also. P.W.-2 Vinod
and the deceased Ravindra entered into
conflict on the relevant date and both
attacked on each other and incidently
Ravindra had died in that attack. The
informant/P.W.-1 Krishna Pal Singh is a
teacher by profession. He has lodged false
report against accused persons for the
purposes of saving his own brother Vinod
Kumar. The defence did not examine any
witness from its side.

14. On the basis of above evidence
adduced during the course of trial, the court
below has found the accused-appellants,
namely, Narendra and Pappi guilty under
Sections 302, 147, 148 and 149 I.P.C.,
whereas
accused-appellants,
namely,
Raghunath, Satendra and Pappan have been
found guilty under Sections 307, 147, 148,
149 I.P.C. beyond reasonable doubt after
recording finding that the prosecution has
produced clear, cogent and convincing
evidence and proved that the accused
Narendra and Pappi have caused the death
of Ravindra through spades, hence the
offence punishable under Section 302 read
with Section 149 I.P.C. is made out against
the accused Narendra and Pappi. The court
below has further recorded that in the
present case, the prosecution has proved
that the accused Raghunath, Satendra,
Narendra, Pappi and Pappan have formed
an unlawful assembly in pursuance of
common object which was to commit the
offence like murder and attempt to commit
murder. The accused persons arrived at the
place of occurrence and the accused
Narendra and Pappi have inflicted spades
on the neck of victim Ravindra and caused
his
death.
The
accused
Raghunath,
Satendra caught hold of Vinod (P.W.-2) and
Pappan inflicted one spade injury on his
neck. They were the members of unlawful
assembly, hence the offence under Section
147 I.P.C. is proved against them. They
were armed with deadly weapons and used
those weapons for commission of offence,
hence they are found guilty under section
148 I.P.C.

15. In the impugned judgment of
conviction, the trial court has recorded that
the defence has stated in the statement u/s
5 All. Narendra & Anr. Vs. State of U.P.
1009
313 Cr.P.C. that the victim Ravindra and
injured Vinod grappled with each other.
They caused injuries to each other and in
the course of that quarrel Ravindra had
died, but this entire statement of defence
appears to be false and unbelievable. The
defence has produced no witness in support
of their defence version.

16. After recording aforesaid finding
the trial court has come to the conclusion
that the prosecution has well proved the
guilt of accused persons Narendra and
Pappi for causing the death of Ravindra
through spades, hence the offence under
section 302 read with Section 149 I.P.C.
have been fully proved against accused
Narendra and Pappi. The prosecution has
produced clear, cogent and convincing
evidence to prove that accused persons
Raghunath, Satendra and Pappan have
inflicted injuries on the neck of injured
Vinod
(P.W.-2)
through
spades
with
intention to cause the death of Vinod, hence
the
offence
under
Sections
307/149/147/148 I.P.C. is made out against
these accused persons, namely, Raghunath,
Satendra and Pappan.

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

18. The submission of the learned
counsel for the accused-appellants is that
the accused-appellants are innocent and
have
been
falsely
implicated.
Next
submission is that the prosecution has not
produced any independent eye witness.
P.W.-2 Vinod Kumar and P.W.4 Krishna Pal
Singh are the brothers of the deceased
Ravindra. Their evidence cannot be relied
upon. In the Panchayatnama of the
deceased Ravindra, there is no mention of
any injury of Vinod having been caused by
spade. Post Mortem was conducted with
delay of one day, which cast doubt in the
prosecution story. There is great variance
between the ocular testimony and medical
evidence, which makes entire prosecution
case doubtful. There is contradiction
regarding the place of occurrence and the
place where the dead body of Ravindra was
found. No blood stained soil was collected
from the place of occurrence. There is
strong contradiction in their statements.
The prosecution has suppressed the genesis
of case. It is not proved as to how Vinod
received injuries. There is no explanation
of injuries having been caused to Vinod by
blunt weapon. The injuries sustained by
Vinod are simple in nature, which are not
fatal, hence the case of Section 307 IPC is
not made out. There is nothing on record
which could show that there is Chak Road
near
the
place
of
incident.
The
Investigating Officer has not seized/taken
the tractor in his custody, which also
renders
prosecution
case
doubtful.
Recovery of spade cannot not be taken as
relevant because it was not sent for
chemical examination. The accused persons
are innocent and they are liable to be
acquitted of the all the charges levelled
against them.

19. The argument is that the accusedappellant has no 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-appellants Narendra and Pappi
under Section 302 I.P.C., is highly
excessive.
The
maximum
punishment
which could be imposed upon the accusedappellants Narendra and Pappi is 10 years
under Section 304 Part II I.P.C. The learned
1010 INDIAN LAW REPORTS ALLAHABAD SERIES
counsel for the accused-appellants lastly
submits that since the incident in question
occurred on a spur of 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."

20. In support of his plea, learned
counsel for the accused-appellants placed
reliance upon following judgments of Apex
Court:

(I) Arjun & Another etc. etc. VS. State
of Chhatishgarh reported in 2017 0
Supreme (SC) 152; and

(ii) Jandel Singh Vs. State of Madhya
Pradesh dated 16th December, 2022 passed
in Criminal Appeal NO. 2314 of 2022
[arisingout of SLP (CRL.) No. 6633 of
2022].

On the cumulative strength of the
aforesaid, learned counsel appearing for the
appellants 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.

21. Per contra, Mr. N.K. Sharma,
learned A.G.A. for the State, supporting the
judgment and order of conviction, submits
that the first information report has been
lodged promptly naming the accused
person; there is clinching evidence to
support the prosecution's case; the incident
in which the deceased is alleged to have
been murdered by the accused-appellants
Narendra and Pappi occurred at about
11:30 a.m. i.e. in broad day light; there are
three eye witnesses of the alleged incident;
the place of occurrence has not been
disputed by the defence; and the accusedappellants have strong motive or intention
and the same has also been explained by
the evidence of prosecution. Therefore, the
prosecution has proved the charge levelled
against the accused-appellants beyond
reasonable doubt.

22.

To
bolster
the
aforesaid
submissions, learned A.G.A. has invited the
attention of the Court to the latest judgment
of the Apex Court in the case of Mekala
Sivaiah vs. State of Andhara Pradesh
reported in 2022 SCC Online SC 887,
whereby the Apex Court in paragraph
nos.25 and 26 has held as follows:

"25. The facts and evidence in present
case has been squarely analyzed by both
Trial Court as well the High Court and the
same can be summarized as follows:

i. The prosecution has discharged its
duties in proving the guilt of the appellant
for the offence under Section 302 I.P.C.
beyond reasonable doubt.

ii. When there is ample ocular
evidence
corroborated
by
medical
evidence, mere non-recovery of weapon
from the appellant would not materially
affect the case of the prosecution.

iii. If the testimony of an eye witness
is
otherwise
found
trustworthy
and
reliable, the same cannot be disbelieved
and rejected merely because certain
insignificant,
normal
or
natural
contradictions have appeared into his
testimony.

iv. The deceased has been attacked by
the appellant in broad daylight and there
is direct evidence available to prove the
5 All. Narendra & Anr. Vs. State of U.P.
1011
same and the motive behind the attack is
also apparent considering there was
previous enmity between the appellant and
PW-1.

26. Having considered the aforesaid
facts of the present case in juxtaposition
with the judgments referred to above and
upon appreciation of evidence of the
eyewitnesses and other material adduced
by the prosecution, the Trial Court as well
as the High Court were right in convicting
the appellant for the offence under Section
302 I.P.C. Therefore, we do not find any
ground warranting interference with the
findings of the Trial Court and the High
Court." (Emphasis added)

Mr. N.K. Sharma, learned A.G.A. for
the State has also placed reliance upon the
following judgments of the Apex Court and
Patna High Court:

(a) Ram Kumar Madhusudan Pathak
vs. State of Gujurat reported in 1998 0
Supreme (SC) 836;

(b) Arulvelu & Anr. Vs. State Rep. By
the Public Prosecutor & Anr. Reported in
2009 0 Supreme (SC) 1628; and
(c) Ram Nath Nonia vs. State of Bihar
reported in 1999 0 Supreme (Pat) 778.

On the cumulative strength of the
aforesaid submissions, learned A.G.A.
submits that as this is a case of direct
evidence, 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
appellants who committed heinous crime
by murdering the deceased is liable to be
dismissed.

23.

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.

24. 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.

25. P. W. 1/Autopsy Surgeon, Dr.
Ashok Kumar Dua, who has conducted the
post-mortem of the deceased Ravindra has
stated in his examination-in-chief that death
of the deceased was caused due to shock
and haemorrhage as a result of antemortem injuries and it was caused before
one day approximately.

26. This witness has also been crossexamined
by
the
defence
but
no
contradiction is found in his entire
evidence. He has clearly stated in his crossexamination that two injuries found on the
deceased were caused by sharp edged
weapon, which could be spade. He has also
opined that it could be any cutting weapon
was like Gandasa, Pharsa, Kulhari and
Sword. He has clearly opined that injury
no.1 was fatal and due to this injury the
injured could have died immediately and
injury no.2 is also fatal and it could cause
instant death also. In his cross-examination
he has stated that injury no.1 could have
been caused when the injured had fallen on
the ground. It was quite natural that two
accused persons Narendra and Pappi have
caused the death of Ravindra through spade
and in scuffle they have caused injury no.1
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
while the injured was lying on the ground
and by single stroke they have caused
injuries on his neck through spade
resultantly he had done to death.

27. P.W.-2 Vinod Kumar, who is
alleged to be injured and star eye witness of
the incident in question, happens to be the
real brother of deceased Ravindra. He has
stated in his examination-in-chief that
incident took place on 18th May, 2002.
Since it was Saturday, they had turn for
watering their field on that day. They were
supposed to irrigate their field on 18th May,
2002 from 6 a.m. (morning) to next day i.e.
19th May, 2002 and they wanted to take
water through the drain (Nali) by means of
operating their tractor. On the date of
incident, both brothers namely, P.W.-2
himself and the deceased Ravindra went to
their field on tractor. The deceased
Ravindra cleared the drain (Nali). Accused
persons belong to the same village Bafar
and were irrigating their field. In the trial
court, P.W.-2 has fully identified the
accused persons. This witness has further
stated that at about 11 a.m. the deceased
Ravindra had asked accused persons to put
off the tube-well so that they could take
water through the said drain (Nali). The
accused persons made the plan to finish
Ravindra saying that he often raised the
controversy about irrigation of field. On
this exhortation, the accused Narendra
inflicted one spade injury on neck of
Ravindra and accused Virendra, who was
known as Pappi, also inflicted one spade
injury on the neck of Ravindra, which
resulted into his instant death. The accused
Satandra and Raghunath pounced upon
Vinod Kumar (P.W.2.) and caught hold of
him,
thereupon
the
accused
Pappan
inflicted one spade on him but he survived
and raised alarm on which witnesses
arrived there. Sheeshpal and Brijpal (P.W.-
3) also came there and they saw the
incident. Thereafter he along with his
brothers Manoj and Munesh proceeded to
lodge the report to Police Station Jani and
when they reached near Cooperative Bank,
Jani, Krishnapal (informant/P.W.-4) met
them on the way, who enquired about the
incident on which P.W.-2 narrated the entire
story to him. P.W.-4 Krishnapal had written
the report on a paper and the same was
given to Police Station-Jani. This witness
has further stated that at Police Station Jani
Krishnapal, Brijpal and Munesh were
present. After that P.W.2 proceeded to
Primary Heath Centre, Jani for his medical
examination, but Doctor was not present
there. The Home- Guard, who accompanied
him came to the place of the incident. The
police was present there. Several persons of
the village were also present there. Station
House Officer, Police Station Jani has
recorded the statements and inquest of
deceased were prepared on which he signed
and he has identified his signatures. This
witness further stated that he was referred
to P. L. Sharma Hospital, Meerut, where his
injuries were medically examined by the
Doctor. P.W.2 Vinod has clearly stated that
Narendra was also known as Kallan,
Satendra was also known as Billa and
Virendra was known as Pappi.

28. This witness has been crossexamined by the defence at length but no
major contradiction in his testimony was
found.
He
has
fully
supported
the
prosecution case.

29. P.W.-3 Brijpal, who is alleged to
be star independent eye witness, belonged
to the same village where the accused and
prosecution side resided. P.W.-3 knows
accused persons Raghunath, Satendra,
Narendra, Papi and Pappan. This witness
has further stated that the incident in
5 All. Narendra & Anr. Vs. State of U.P.
1013
question occurred on 18th May, 2002 and at
that time he was working in his field.
Sheeshpal (not produced) was also present
there. He had taken the field of Sheeshpal
on Batai (rent). At about 11:00 a.m. the
deceased Ravindra and P.W.-2 Vinod were
present on their Tube-well. The deceased
Ravindra asked accused persons to put of
their Tube-well as accused were taking
water to their field through the tractor. The
deceased Ravindra asked that he had turn
for irrigating his field on that day. Accused
did not put off their Tube-well, which
resulted in some altercation between them.
Accused persons exhorted to each other
that Ravindra always created controversy in
irrigating the field, so he should have been
finished, thereupon the accused Pappi and
Kallan inflicted spade on the neck of
Ravindra and he sustained serious injuries
and
died
immediately.
The
accused
Raghunath and Billu caught hold of Vinod
(P.W.-2) and the accused Pappan inflicted
one spade on his neck. This witness had
seen the entire incident from 10 to 15 steps.
He immediately reached there. After that
the accused persons left the place and went
to their house. P.W.-3 immediately went to
call Krishnapal. Vinod and Sheeshpal
advised him to inform Krishnapal Master,
who was teaching in Shival High School,
Sival Khas, Meerut. He immediately went
to Krishnapal and informed him about the
incident. Thereafter he and Krishnapal went
to police station and in the mid way, Vinod
and several persons of the village met them
near Cooperative Bank, Jani. P.W.2 Vinod
also
narrated
the
entire
incident
to
Krishnapal on which he had written the
report, which was submitted to P. S. Jani.

30. P.W.-3 has also been crossexamined by the defence at length but no
contradiction has been found in his
testimony. In his cross-examination, this
witness has clearly stated that the accused
Raghunath and Billu had caught hold of
Vinod (P.W.-2), thereupon the accused
Pappan had inflicted one spade injury to
Vinod and when he reached near the
accused persons, they fled from there. This
witness Brijpal is an independent eyewitness and he has fully proved the
prosecution case.

31. Krishnapal i.e. informant, who
happens to be the brother of the deceased
Ravindra and injured Vinod Kumar (P.W.-
2) has been produced as P.W.4. He has not
claimed that he is the eye-witness of the
incident. In his testimony, this witness has
fairly stated that he has not seen the
incident with his own eyes because at the
time of incident, he was teaching in High
School, Shival Khas, Meerut. and the
information regarding this incident was
given to him by Brijpal (P.W.-3). He has
proved the written report (Exhibit-ka/4)
which he has submitted before the Police
Station-Jani.

32. Prosecution has produced SubInspector Sanjeev Singh Rathor as P.W.5.
In his examination-in-chief, he has stated
that he has prepared/conducted the inquest
of the body of the deceased Ravindra in the
presence of Munesh, Vijai Pal, Brijpal, Vinod
and Dharmendra, who were appointed as
inquest witnesses according to them the death
of Ravindra was caused due to the injuries
sustained in criminal transaction. This
witness has been cross-examined by defence
counsel at length. He has proved all the
papers like 'Panchayatnama, letter to R. I.,
Copy of Chik FIR, letter to C.M. S.,
specimen seal, Photo Lash and Challan Lash.
There is no contradiction in his testimony.

33. Emergency Medical Officer P.L.
Sharma has been produced as P.W.- 6, who
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
has medically examined the injured Vinod
Kumar (P.W.-2). In his examination-inchief, this witness has stated that he found
5 injuries on the person of P.W.-2. He has
opined that all injuries sustained by P.W.-2
were simple in nature and injury no.1 is
incised wound and it was caused by some
sharp edged weapon like spade and injuries
no.2 and 3 were caused by hard and blunt
weapon. He has proved the injury report,
which was marked as Exhibit-ka/8. This
witness has also been cross-examined by
the defence and no contradiction has been
found in his entire cross- examination.

34. Constable-1198 Ranvir Singh has
been
produced
as
P.W.-7.
In
his
examination-in-chief he has stated that the
FIR has been written by him in his own
handwriting which was marked as ExhibitKa/9. He has proved the chik FIR.

35. P.W.-8 Sub-Inspector R.N. Singh
Yadav, has conducted the investigation. In his
examination-in-chief this witness has stated
that he had conducted the investigation of the
case himself, which was started at 12:40 p.m.
on 18th May, 2002. He also recorded the
statements of the informant Krishnapal and
Sheeshpal, who was the eye witness of the
case. He has prepared the site plan in his
writing. He had collected blood stained earth
and plain earth from the place of the
occurrence where the dead body of Ravindra
was lying. In his cross-examination this
witness has stated that he had not sent the
blood stained earth and spades for chemical
examination on account of the fact that he
was transferred, but he has submitted the
charge sheet in this case. This witness has
also been cross-examined by the defence but
no
contradiction
or
inconsistency
or
improvement
has
been
found
in his
testimony. He has fully supported the
prosecution case.

36. On deeper scrutiny and evaluation
of the prosecution witnesses and other
evidence, we find that there is two
prosecution witnesses of fact, namely, P.W.2
Vinod Kumar, who happens to be the brother
of the deceased but is an injured witness and
Brijpal (P.W.-3), who is an independent eye
witness. In their testimony, they have fully
supported the prosecution case and these
testimony are the direct evidence against the
accused-appellants for commissioning of the
offence of murder of the deceased Ravindra
and causing injuries to the injured P.W.-2.
Apart from the above, the medical evidence
both the post-mortem report of the deceased
Ravindra as well as medical examination
report of injured Vinod Kumar (P.W.-2) as
also the police papers have also fully
supported the prosecution case.

37. We have examined the judgment
and order of conviction passed by the trial
court.
While
passing
the
impugned
judgment the trial court has carefully
noticed the prosecution version and other
evidence led during the course of trial and
has held that the prosecution has established
guilt of the accused-appellants based on
prosecution
evidence. We
have
noticed
hereinabove that there are minor material
contradictions,
inconsistencies
and
discrepancies in the statements of the
prosecution
witnesses
specially
in
star
prosecution witnesses i.e. P.W.-2 and P.W.-3,
who are alleged to be eye-witnesses of the
incident in question. Though the P.W.-2 is an
interested witness but is an injured witness also,
whereas P.W.-3 is an independent witness and
both the witnesses of fact have been crossexamined by the defence at great length.
Therefore, their testimony cannot be ruled out
as there is some minor contradictions therein.

38. It is settled law that in all criminal
cases, normal discrepancies are bound to
5 All. Narendra & Anr. Vs. State of U.P.
1015
occur in the depositions of witnesses due to
normal errors of observation, namely,
errors of memory due to lapse of time or
due to mental disposition such as shock and
horror at the time of occurrence. Where the
omissions amount to a contradiction,
creating
a
serious
doubt
about
the
truthfulness of the witness and other
witnesses also make material improvement
while deposing in the court, such evidence
cannot be safe to rely upon. However,
minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a
ground on which the evidence can be
rejected in its entirety. The court has to
form its opinion about the credibility of the
witness and record a finding as to whether
his deposition inspires confidence.

39. In various judgments, the Apex
Court has held that the evidence of
interested or inimical witnesses is to be
scrutinized with care but can not be
rejected merely on the ground of being a
partisan evidence. If on a perusal of the
evidence the Court is satisfied that the
evidence is creditworthy there is no bar in
relying on the said evidence. It is well
settled that interested evidence is not
necessarily unreliable evidence. All that is
necessary is the evidence of interested
witnesses should be subjected to careful
scrutiny and accepted with caution. Thus,
the evidence cannot be disbelieved merely
on the ground that the witnesses are related
to each other or to the deceased. In case the
evidence has a ring of truth to it, is cogent,
credible and trustworthy, it can, and
certainly should, be relied upon.

40. In view of the above discussions
and deliberations, we find that the trial
court is justified in holding that the
prosecution has succeeded to prove the
guilt of the accused-appellants, namely,
Narendra and Pappi for commissioning the
offence of murder of the deceased Ravindra
the guilt of accused-appellants, namely,
Raghunath,
Satendra,
Pappan,
in
commission of offence by causing injuries
to P.W.-2 Vinod Kumar, is proved beyond
reasonable doubt. However, the trial court
is not justified in convicting and sentencing
accused-appellants Narendra and Pappi
under Section 302 I.P.C. We find substance
in the submission made by the learned
counsel for the accused-appellants that the
incident in question occurred on the spur of
moment and in the heat of passion and
without premeditation or planning of
attack, therefore, it would fall within
Exception-4 to Section 300 I.P.C. and the
conviction
of
the
accused-appellants
Narendra and Pappi would fall under
Section 304 Part-I I.P.C. and not under
Section 302 I.P.C.

41.