# Onkar & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 1058
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-04
- **Case number:** Criminal Appeal No. 1461 of 1983
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/onkar-anr-in-jail-v-state-of-u-p-45747
- **Pages:** 12

## Headnote

Criminal Law-Indian Penal Code, 1860Section-302- Appeal against conviction.

Minor contradiction -

Do not affect the core of prosecution.

Motive -
Becomes irrelevant in the case of the direct
witnesses.

Exception 4 - ingredients of - Principles
summarized- Not intention of accused to
cause death while committing the act - Attack
was not premeditated and preplanned - Act of
accused was not cruel and he did not take
undue advantage of deceased. Scuffle took
place in the heat of passion and all
requirements under Section 300 Exception 4,
satisfied- Hence, accused entitled to such
benefit.(Para-34)

Conviction upheld sentences reduced to the
period
of
imprisonment
has
already
undergone. (Para-39)

The appeal is partly allowed. (Para-40)

List of cases cited: -

## Text

1058 INDIAN LAW REPORTS ALLAHABAD SERIES
scattered,
witnesses
produced
by
prosecution do not inspire confidence that
they are eye-witnesses of the incident,
oral testimony is also not consistent with
the medical evidence, manner of assault
as alleged also does not correspond with
the injury of deceased found in medical
report, there are lapses on the part of
investigating officer also. Prosecution has
miserably failed to prove the charge
against the appellant-accused. Learned
trial court has not passed the judgment
and
order
evaluating
the
evidence
available on record in proper perspective,
therefore,
it
is
perverse
and
not
sustainable accordingly, it is liable to set
aside.

68. Appeals are allowed, judgment
and order recorded by learned trial court
under appeal dated 05.2.2001 is set aside.
Appellants are acquitted of the charge
framed against them. They are on bail,
their
bail
bonds
are
discharged.
Appellants are directed to comply the
provision of section 437-A Cr.P.C. to the
satisfaction of the court concerned.

69. Registry is directed to send the
order and original record to the court
below for compliance.
----------
(2020)06ILR A1058
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Criminal Appeal No. 1461 of 1983

Onkar & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent
Counsel for the Appellants:
Sri Keshav Sahai, Sri A.C. Chaturvedi, Sri
K.K. Tripathi, Sri Sheshadri Trivedi, Sri
Ajai Kumar Pandey, Sri Satish Trivedi

Counsel for the Respondent:
A.G.A.

Criminal Law-Indian Penal Code, 1860Section-302- Appeal against conviction.

Minor contradiction -

Do not affect the core of prosecution.

Motive -
Becomes irrelevant in the case of the direct
witnesses.

Exception 4 - ingredients of - Principles
summarized- Not intention of accused to
cause death while committing the act - Attack
was not premeditated and preplanned - Act of
accused was not cruel and he did not take
undue advantage of deceased. Scuffle took
place in the heat of passion and all
requirements under Section 300 Exception 4,
satisfied- Hence, accused entitled to such
benefit.(Para-34)

Conviction upheld sentences reduced to the
period
of
imprisonment
has
already
undergone. (Para-39)

The appeal is partly allowed. (Para-40)

List of cases cited: -

1. St. of U.P. Vs Krishna Master & ors., (2010)
12 SCC 324.

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

(Delivered by Hon'ble Rajeev Misra, J.)

1. This Criminal Appeal under
Section 374(2) of Criminal Procedure
Code has been filed by accused appellants
Onkar and Uma Shankar, who have been
6 All. Onkar & Anr. Vs. State of U.P. 1059
convicted under Section 302 I.P.C. and
consequently,
sentenced
to
life
imprisonment vide judgment and order
dated 11.04.1983 passed by VIIIth
Additional Sessions Judge, Kanpur in
S.T. No. 306 of 1982 (State Vs. Onkar
and others) under Section 302 I.P.C.,
Police
Station-Chaubepur,
DistrictKanpur Dehat.

2. We have heard Mr. Satish
Trivedi, Senior Advocate, assisted by Mr.
Sheshadri Trivedi, learned counsel for
appellants and Mr. Syed Ali Murtaza,
learned Additional Government Advocate
for State-respondent.

3. Prosecution case in brief as
emerging from FIR dated 07.09.1982 as
well as the material available on record
may be stated as under:

4. An occurrence took place on
07.09.1982 in which Laxmi Narain died.
In respect of aforesaid occurrence, a
written report dated 07.09.1982 (Ext. Ka1) was presented at police station
Chaubeypur,
District
Kanpur
on
07.09.1982 by First Informant, P.W.2Darshan Devi, alleging therein that in the
afternoon of 07.09.1982, Informant, her
mother-in-law Mst. Mathura Kunwari,
Informant's son Durga Prasad and Laxmi
Narain, elder brother of Informant's
husband, were present at their home.
Informant's nephews namely Onkar, Uma
Shankar and Smt. Geeta Devi wife of
Onkar, were also present in the house. At
the instance of Mathura Kunwari, motherin-law of Informant, elder brother of
Informant's husband, Laxmi Narain had
sold wood of a mango tree, which had
fallen down, for a consideration of
Rs.900/-. At about 12.30 PM on 7.9.1982,
Onkar objected to Laxmi Narain claiming
that he too had share in the wood sold by
him and demanded money of his share,
whereupon Laxmi Narain said that the
fallen mango tree belonged to his mother
and it was at her instance that, wood of
fallen mango tree was sold. This got
Onkar infuriated and he threatened that he
would teach a lesson. Thereafter Onkar
armed with sickle (Hansiya) and Uma
Shankar armed with Spud (Khurpi)
started assaulting Laxmi Narain; Smt.
Geeta Devi also caught hold Laxmi
Narain and all the three persons felled
Laxmi Narain on the ground and inflicted
injuries on his legs, arms and neck with
sickle and spud. On account of injuries
inflicted
Laxmi
Narain
died
instantaneously.
Informant
and
her
mother-in-law raised alarm, whereupon
villagers Shiv Ram Singh, Raj Bahadur
Singh and other persons in the vicinity
arrived on the spot and witnessed the
incident. Accused Onkar, Uma Shankar
and Smt. Geeta, after committing murder
of Laxmi Narain fled away from the place
of occurrence. On the basis of written
report (Ext. Ka-1), P.W.-5 Head Moharrir
Ram Prasad Misra made relevant entries
in the general diary. He thereafter
prepared the Check F.I.R. (Ext. Ka-4).

5. Thereafter investigation of case
was undertaken by P.W.-7, Sub-Inspector
D.S.
Sharma,
Station
Officer,
P.S.
Chaubeypur,
District
Kanpur.
He
recorded statement of P.W.2 Darshan
Devi (Informant), visited the place of
occurrence and prepared inquest (Ext. Ka6). He also prepared Photo LASH and
Challan LASH (Ext. Ka-7) and (Ext. Ka8), respectively. He thereafter dispatched
the
dead
body
for
postmortem
examination after duly sealing the same
through constable Jeet Narain Chaubey,
P.W.1. He prepared the site plan (Ext.
1060 INDIAN LAW REPORTS ALLAHABAD SERIES
Ka-10) on the pointing of First Informant.
He collected blood stained and plain earth
in two separate boxes, sealed them and
prepared recovery memo Ext. Ka-11. He
marked sealed boxes as Material Ext. 1
and 2. Thereafter he sent both sealed
boxes for Serological examination to the
Serologist along with towel (Ext. 1),
Janeu (Ext.4) Shirt (Ext.5) in a sealed
bundle.

6. Autopsy on the dead body of
Laxmi Narain was conducted by P.W.8
Dr. S.C. Gupta at 2.30 pm on 8.9.1982.
According to him, deceased was aged
about 40 years. His body was of average
built. His eyes were open, rigor mortis
was present on both upper and lower
limbs. In the opinion of Doctor, about one
day had passed since the time of his
death. He found following ante mortem
injuries on the body of deceased:

1-Incised wound 4 cm x 2 cm x
bone deep over right eyebrow. Edges of
wounds retracted.

2-Incised
wound
present
parallel and below to lower jaw 6 cm x
1.5 cm x muscle deep on left side of neck.

3-Incised wound present on the
left side of neck 2.5 cm above left clavicle
size 16 cm x 4 cm x half depth of neck cut
with lop haemorrhage. Edges of wound
retracted.

4-Incised wound present on the
front of right side of chest 7 cm above
right nipple size 3 cm x 1.5 cm x muscle
deep.

5-Incised would present on the
left shoulder 4 cm x 1.5 cm x muscle deep.

6-Incised wound present on the
front of left upper arm 10 cm above left
elbow joint; size 6.5 cm x 1/2 cm x skin
deep.

7-Incised wound present on the
front of left upper arm 5 cm above left
elbow size 7 cm x 3 cm x muscle deep.

8-Incised wound present 6.5 cm
above right knee size 6 cm x2.0 cm x
muscle deep over front of right thigh.

9-Incised wound present 6.5 cm
below right knee size 6.5 cm x1.5 cm x
muscle deep over front of right leg.

10-Incised wound present over
right leg 11 cm below right knee size 4 cm
x 1 cm x bone deep.

11-Incised wound present on
the front middle part of left thigh front
side, size 7 cm x 3 cm x muscle deep.

12-Incised wound present on
the left thigh 12 cm above left knee size 6
cm x 1.5 cm x muscle deep.

13-Incised wound present on
the left thigh front side 10cm above left
knee size 3.5 cm x 1/2 cm x muscle deep.

14-Incised wound present over
front of left leg 11 cm below left knee size
3 cm x 1.5cm x muscle deep.

15-Incised wound present on
the left leg front size 5 cm x 2 cm x bone
deep (Tibia bone cut in chips) injury
present 10 cm below left knee.

16-Incised wound present on
the front of left leg 15 cm below left knee
size 4.5 cm x 1/2 cm x bone deep.

17-Incised wound present on
the back of neck at level of 6th cervical
size 7 cm x 4 cm x vertebral deep (6th
cervical vertebral cut).

18-Incised wound present on
the right side back of neck size 6 cm x
1.5cm x muscle deep.

19-Incised wound present on
the back of left shoulder over border of
scapula size 3 cm x 1/2 cm x muscle deep.

20-Incised wound present on
the back of left shoulder 5 cm x 2.5cm x
muscle
deep.
6 All. Onkar & Anr. Vs. State of U.P. 1061

21-Incised wound present on
the back of left shoulder 5 cm x 1 cm x
muscle deep one cm below injury no.20.

22-Incised wound present on
the back of left lge5 cm below left knee
size 4 cm x 1.5 cm x muscle deep.

7. On external examination P.W.8
found that 6th cervical vertebral was cut
corresponding to injury no.17. Heart was
empty and weighed 180 grams. Vessels of
left side neck were cut. Stomach was
empty; small intestine was empty but
filled with gases; large intestine was
found half filled with gases.

8. In the opinion of autopsy surgeon,
death of deceased was caused due to
shock and haemorrhage, as a result of
ante mortem injuries.

9. Thereafter on receipt of report of
Serologist ( Ext. Ka-12) and (Ext. Ka-13),
and after conclusion of investigation,
P.W.7, S.I., D.S. Sharma Investigating
Officer submitted charge sheet dated
4.10.1982 (Ext. Ka-14) in the Court
against Onkar, Uma Shankar and Geeta
Devi.

10. Upon submission of aforesaid
charge-sheet, cognizance was taken by
the Chief Judicial Magistrate, Kanpur
vide cognizance taking order dated
14.10.1982 under Section 302 IPC. As
the case was triable by Court of
Sessions, the matter was accordingly
committed to Court of Sessions, Kanpur
vide committal order dated 20.11.1982,
passed
by
C.J.M.
Kanpur.
Consequently, Sessions Trial No. 306 of
1982 (State Vs. Onkar and others) under
Section 302 I.P.C., P.S. Chaubepur,
District-Kanpur came to be registered.

11. Aforesaid Sessions Trial was
subsequently transferred to the Court of
VIIIth Additional District and Sessions
Judge, Kanpur, who framed charges
against accused namely Geeta Devi,
Onkar and Uma Shankar vide framing of
charge orders dated 18.01.1983. Charges
against Geeta Devi, Onkar and Uma
Shankar, read as under:

Charge framed against Geeta Devi

"I, G.A. Farooqi,VIII Addl.
District & Sessions Judge, Kanpur-NMA
do hereby charge you Smt. Geeta Devi as
follows:

That you on 7.9.82 at about
12.30 noon in village Kharagpur, P.S.
Chaubeypur, Distt. Kanpur-Dehat from
common intention with Onkar and Uma
Shanker to commit the murder of Luxmi
Narain and in furtherance of that
common intention you alongwith Onkar
and Uma Shanker committed murder by
intentionally causing the death of Luxmi
Narain and thereby committed an offence
punishable U/s 302 IPC read with Section
34 I.P.C. and within my cognizance.

And I, hereby direct that you be
tried on the aforesaid charge by me."
Charge framed against Onkar and Uma
Shanker

"I, G.A. Farooqi,VIII Addl.
District & Sessions Judge, Kanpur-NMA
do hereby charge you Onkar and Uma
Shanker as follows:

That you on 7.9.82 at about
12.30 noon in village Kharagpur, P.S.
Chaubeypur,
Distt.
Kanpur-Dehat
committed
murder
by
intentionally
causing the death of Luxmi Narain and
thereby committed an offence punishable
U/s 302 IPC and within my cognizance.

And I, hereby direct that you be
tried on the aforesaid charge by me."
1062 INDIAN LAW REPORTS ALLAHABAD SERIES

12. Accused persons denied the
charges so framed and demanded trial.
Consequently,
burden
fell
upon
prosecution to bring home the charges
levelled against accused.

13. Accordingly, prosecution in
support of its case, adduced eight
witnesses, out of whom, P.W.2 Darshan
Devi (Informant), P.W.3 Durga Prasad
and P.W.6 Raj Bahadur Singh are
witnesses of fact, who have deposed
material facts about the occurrence.

14 P.W.1 C.P. No. 3109, Constable
Jeet Narain Dubey, was posted at Police
Station
Chaubeypur,
District-Kanpur
Dehat on 7.9.1982. This witness took the
dead body of deceased for postmortem on
7.9.1982 and got postmortem of body of
the deceased conducted on 8.9.1982. This
witness was cross-examined with regard
to the timing of postmortem as well as the
distance between hospital and Police
Station. However, defence could not
dislodge this witness. As such, his
testimony remains intact.

15. P.W.-2 Darshan Devi, wife of
Radhe Shyam is a witness of fact. It is
this witness who had submitted written
report dated 7.9.1982 at Police Station
Chaubeypur, District Kanpur Dehat, of
the occurrence dated 7.9.1982. This
witness has clearly proved the manner of
occurrence
and
also
the
place
of
occurrence. She has implicated accused
persons namely, Onkar, Uma Shanker,
and Geeta Devi in the commission of
crime. She has clearly assigned role of
causing injury to deceased to Onkar and
Uma Shanker. This witness was recalled
and also cross-examined but she remained
intact.

16. P.W.-3, Durga Prasad is a child
witness. This witness has also deposed
regarding the manner of occurrence and
also place of occurrence. His testimony
has been consistent and inspite of lengthy
cross-examination, prosecution could not
dislodge him.

17. P.W.4 Naresh Chandra, is the
area Lekhpal. He has proved Khatauni
Ext. Ka-2 in respect of Survey Plot No.
738 area 3 bigha recorded in the name of
Mathura Kunwari Kaith, Ram Autar and
Jwala Prasad sons of Ramma.

18. P.W.5 is H.C. No. 72 Ram
Prasad Mishra. This witness was posted
as Head Moharrir at P.S. Chaubeypur,
District Kanpur Dehat. This witness
entered written report dated 7.9.1982 in
the general diary and thereafter, prepared
Check F.IR (Ext. Ka-4). He has proved
Check F.I.R. (Ex. Ka-4) as well as G.D.
entry regarding written report (Ex. Ka-5).
This witness was cross-examined with
regard to the timing of lodging of F.I.R.
and also the person in whose presence
F.I.R. was registered. However, defence
could not cull out any such statement
from him on the basis of which testimony
of this witness could be doubted.

19. P.W.-6 Ram Bahadur Singh is a
witness of fact and a neighbour of First
Informant. This witness has deposed
before Court below that he has witnessed
the occurrence. He has accordingly
described the manner of occurrence as
well as the place of occurrence. His
testimony, by and large, is similar to
P.W.2 Darshan Devi and P.W.3 Durga
Prasad. This witness was cross-examined
by defence but defence failed to dislodge
him.
6 All. Onkar & Anr. Vs. State of U.P. 1063

20. P.W.7 Sri D.S. Sharma is the
Investigating Officer, who has proved
inquest report Ext. Ka-6, Photo Nash and
Challan Nash as Ext. Ka-7 and Ext. Ka-8,
specimen seal Ext. Ka-9, Site Plan Ext.
Ka-10, Blood Stained and Plain Earth
sealed in two separate boxes, Material
Exhibits (M. Ext.) 1 and 2, Recovery
Memo in respect thereof Ext. Ka-11. He
has also proved Towel (M. Ext.3), Janeu
(M. Ext.4) and Shirt (M.Ext.5), which
were sent to Serologist for analysis.
Report received from Serologist Ext. Ka12 and Ext. Ka-13 and Charge-sheet
Ext.Ka-14, have been proved by him.

21. P.W.8 Dr. S.C. Gupta, had
conducted autopsy on the dead body of
deceased. He has proved Postmortem
Report Ext. Ka-15 prepared by him. This
witness had described nature of injuries
found on the body of deceased as incised
wounds and also detailed the status of
body. This witness has clearly supported
that injuries sustained by deceased could
have been caused by weapons of assault
namely,
sickle
(hansiya)
and
spud
(Khurpi). This witness has also suggested
the time of death of deceased which is
similar to timing of incident stated in the
F.I.R.
Inspite
of
detailed
crossexamination,
prosecution
failed
to
dislodge this witness.

22. Defence in support of its case,
adduced three witnesses namely D.W.-1,
Krishna Gopal, D.W.-2 Ram Gopal
Verma and D.W.-3 Chandrabhan Singh.
However, all the three defence witnesses
were disbelieved by Court below.

23. After prosecution evidence was
over, all the incriminating material and
adverse circumstances were disclosed to
the
accused
for
their
version
of
occurrence in terms of Section 313
Cr.P.C. The accused persons denied most
of the questions by repeatedly saying that
it is false or they have no knowledge
regarding the same.

24. On behalf of accused, it was
urged before Court-below that P.W.6 Raj
Bahadur Singh is not an independent
witness; he has illicit connection with
Smt. Darshan Devi and has been
cultivating land on Batai, as such, he is a
partisan witness, therefore, his testimony
could not be relied upon; non production
of
neighbouring
witnesses
makes
prosecution case highly doubtful; as per
the site plan, witnesses are shown to have
arrived at the place of occurrence from
western side whereas, P.W.6 Raj Bahadur
has deposed that he came from eastern
side to the place of occurrence; F.I.R. is
ante-time; no food was found in the
stomach of deceased, therefore, defence
case that deceased Laxmi Narayan was
murdered in the night stand supported by
the statement of Doctor. It was also urged
that P.W. 8 Dr. S.C. Gupta, who
conducted autopsy on the body of
deceased, has not stated that death was
caused due to shock and hemorrhage, due
to ante-mortem injuries; as such, it is not
proved that Laxmi Narayan has died
because of shock and hemorrhage as a
result of ante-mortem injuries. Mother of
Laxmi Narayan was the best witness to
prove the occurrence and her non
production
makes
prosecution
case
doubtful. Accused Geeta Devi is entitled
to get the benefit of doubt as there is no
evidence to show that Smt. Geeta Devi
has also assaulted Laxmi Narayan with
any weapon.

25 The Court below meticulously
and exhaustively dealt with each of the
1064 INDIAN LAW REPORTS ALLAHABAD SERIES
above mentioned submissions urged on
behalf of the accused-appellants to
dislodge the prosecution case and viceversa in proof of their innocence. Upon
evaluation of the said submissions, in the
light of the proposition required to be
addressed in a case relating to direct
evidence i.e. prosecution witnesses of fact
are credible and reliable, none of the
submissions urged on behalf of accusedappellants to dislodge the prosecution
case were found cogent enough by Court
below to believe another hypothesis
much-less a reasonable hypothesis than
the
one
pleaded
by
prosecution.
Consequently, Court below by means of
judgement and order dated 11.04.1983
convicted accused Onkar and Uma
Shanker under Section 302 I.P.C. but
acquitted
accused
Geeta
Devi
by
extending her the benefit of doubt. Hence
feeling aggrieved by judgement and order
dated 13.09.2012, as detailed above,
accused-appellants have now approached
this Court by means of present criminal
appeal.

26. Learned counsel for appellants
urged that Court below has observed in
impugned judgement that there is no
evidence on record to show that the
accused appellants assaulted deceased
with a pre-meditated mind, which resulted
in the death of Laxmi Narain, the
deceased, as such, no conviction under
Section
302
I.P.C.
was
possible.
However,
Court
below
has
not
specifically dealt with this issue.

27. Elaborating his argument,
learned Senior Counsel for appellants
submits that the case in hand is liable to
be considered in the light of the
provisions contained in Section 304 part 1
I.P.C. As per prosecution evidence itself
there is nothing to show that there was a
premeditated mind on the part of the
accused-appellants to commit the crime.
As such it is urged that the case in hand is
one which is required to be judged on the
principle of sudden quarrel. Consequently
other findings rendered by Court below
have been challenged by learned Senior
Counsel for appellants.

28. However, this Court being the
last Court of fact and also the legal
obligation with which a Court of appeal is
cloaked, we have to scrutinize the
findings recorded by Court-below and
also evaluate oral evidence on record to
find out whether conviction of the
accused-appellants
deserves
to
be
maintained, modified or same is liable to
be set-aside.

29. This brings us to the issue
relating to the appreciation of evidence by
appellate Court as held in State of Uttar
Pradesh Vs. Krishna Master and
Others, as reported in 2010 (12) SCC
324. Paragraphs 15, 16, 17, 24 of
aforesaid judgement clearly deal with the
manner in which the evidence of the eyewitnesses is to be evaluated in a criminal
case. Paragraphs 15, 16, 17 and 24 are
accordingly reproduced herein below:-

15.
Before
appreciating
evidence of the witnesses examined in the
case, it would be instructive to refer to the
criteria for appreciation of oral evidence.
While appreciating the evidence of a
witness, the approach must be whether
the evidence of witness read as a whole
appears to have a ring of truth. Once that
impression is found, it is undoubtedly
necessary for the Court to scrutinize the
evidence more particularly keeping in
view the deficiencies, drawbacks and
6 All. Onkar & Anr. Vs. State of U.P. 1065
infirmities pointed out in the evidence as
a whole and evaluate them to find out
whether it is against the general tenor of
the evidence and whether the earlier
evaluation of the evidence is shaken as to
render it unworthy of belief. Minor
discrepancies on trivial matters not
touching the core of the case, hypertechnical approach by taking sentences
torn out of context here or there from the
evidence, attaching importance to some
technical
error
committed
by
the
investigating officer not going to the root
of the matter would not ordinarily permit
rejection of the evidence as a whole.

16. If the Court before whom
the witness gives evidence had the
opportunity to form the opinion about the
general tenor of the evidence given by the
witness, the appellate Court which had
not this benefit will have to attach due
weight to the appreciation of evidence by
the Trial Court and unless the reasons
are weighty and formidable, it would not
be proper for the appellate Court to reject
the evidence on the ground of variations
or infirmities in the matter of trivial
details. Minor omissions in the police
statements are never considered to be
fatal. The statements given by the
witnesses before the Police are meant to
be brief statements and could not take
place
of
evidence
in
the
Court.
Small/trivial omissions would not justify a
finding by Court that the witnesses
concerned are liars. The prosecution
evidence may suffer from inconsistencies
here and discrepancies there, but that is a
short-coming from which no criminal
case is free. The main thing to be seen is
whether those inconsistencies go to the
root of the matter or pertain to
insignificant aspects thereof. In the
former case, the defence may be justified
in seeking advantage of incongruities
obtaining in the evidence. In the latter,
however, no such benefit may be
available to it.

17.
In
the
deposition
of
witnesses, there are always normal
discrepancies, howsoever, honest and
truthful they may be. These discrepancies
are due to normal errors of observation,
normal errors of memory due to lapse of
time, due to mental disposition, shock and
horror at the time of occurrence and
threat to the life. It is not unoften that
improvements in earlier version are made
at the trial in order to give a boost to the
prosecution
case
albeit
foolishly.
Therefore, it is the duty of the Court to
separate falsehood from the truth. In
sifting the evidence, the Court has to
attempt to separate the chaff from the
grains in every case and this attempt
cannot be abandoned on the ground that
the case is baffling unless the evidence is
really so confusing or conflicting that the
process cannot reasonably be carried out.
In the light of these principles, this Court
will have to determine whether the
evidence of eye-witnesses examined in
this case proves the prosecution case.

24. The basic principle of
appreciation of evidence of a rustic
witness who is not educated and comes
from a poor strata of society is that the
evidence of such a witness should be
appreciated as a whole. The rustic
witness as compared to an educated
witness is not expected to remember every
small detail of the incident and the
manner in which the incident had
happened more particularly when his
evidence is recorded after a lapse of time.
Further, a witness is bound to face shock
of the untimely death of his near
relative(s). Therefore, the Court must
keep in mind all these relevant factors
1066 INDIAN LAW REPORTS ALLAHABAD SERIES
while appreciating evidence of a rustic
witness."

30. Applying aforesaid observations
made by Apex Court to the case in hand,
we find that Court-below has rightly held
that prosecution witnesses of fact are
credible and reliable and hence, their
testimony is worthy of credit. There is no
such contradiction, embellishment or
exaggeration
in
the
testimony
of
prosecution witnesses of fact so as to
discard the same. The testimony of
prosecution witnesses of fact has been
similar
in
content
and
consistent
throughout. We have ourselves also
examined oral testimony of prosecution
witnesses of fact in the light of
observations made by Apex Court as
referred
to
above
and
inescapable
conclusion is that the testimony of
prosecution witnesses of fact have to be
relied upon and dealt with accordingly.

31. We have already referred to the
proposition which is required to be
addressed by a Court while dealing with a
case of direct evidence. The veracity of
prosecution case is to be judged in the
light of the same. P.W.-2, Darshan Devi,
P.W.3 Durga Prasad and P.W.-6, Raj
Bahadur Singh, are eye witnesses of the
occurrence. They have fully proved the
occurrence.
The
defence
in
crossexamination of these witnesses could not
dislodge their testimony nor could it cull
out any such thing on the basis whereof it
could be even remotely inferred that the
aforesaid eye-witnesses of fact are not
credible and reliable and hence not
worthy of trust. The three prosecution
witnesses of fact namely P.W.-2 Darshan
Devi, P.W.-3, Durga Prasad and P.W.-6
Raj Bahadur Singh have been consistent
throughout regarding description of the
manner of occurrence. They have also
proved the identity of accused persons,
which further stands corroborated from
the fact that the accused have been
nominated by name in the F.I.R. The
defence, in spite of detailed and lengthy
cross-examination of these witnesses,
could not bring another hypothesis
regarding the presence of accused at the
time and place of occurrence. Secondly,
the prosecution case that deceased died on
account of the Ante-Mortem injuries
caused upon the deceased by two of the
named
accused
persons,
stands
corroborated by medical evidence, i.e.,
the Post-Mortem Report (Ext. Ka. -1) as
well as the testimony of P.W.-8, Dr. S. C.
Gupta, who conducted autopsy on the
body of deceased. He has described antemortem injuries found on the body of the
deceased as Incised Wounds. He has also
discussed ante-mortem injuries found on
the body of the deceased as incised
wounds, which could have only been
caused by the weapons of assault, namely,
sickle (Hansiya) and Spud (Khurpi) in the
hands of two of the the accused. The
opinion of Doctor regarding time of death
of deceased also leads to the same
inference that occurrence took place
around 12.30PM. Thirdly, on the question
of motive, it may be noted that in a case
of direct evidence motive is irrelevant.
But
there
can
be
no
motiveless
malignancy also. All the prosecution
witnesses of fact have been consistent in
their statements throughout regarding the
cause behind the occurrence i.e. the
demand of his share of money by Onkar
in the consideration received from selling
wood of a fallen mango tree. In the
description of the manner of occurrence
right from the beginning upto death of
deceased, all the prosecution witnesses
have been consistent and natural. Thus
6 All. Onkar & Anr. Vs. State of U.P. 1067
prosecution was able to prove the same
story which it set out to prove. Lastly, the
submission urged on behalf of accusedappellants that there was no pre-meditated
mind to commit the crime coupled with
the fact that the accused-appellants have
not come out with their version of
occurrence,
clearly
amounts
to
an
admission qua the happening of the
occurrence in the manner alleged by the
prosecution itself.

32. In view of our agreement with
the findings recorded by Court below on
the various circumstances urged on behalf
of the accused-appellants regarding proof
of their innocence, the
inescapable
conclusion is that the prosecution has
succeeded
in
establishing
its
case.
Therefore, the conclusion drawn by the
Court below holding that the accused are
guilty of committing murder of Laxmi
Narain (deceased) cannot be faulted with.

33. However, we find that the case in
hand relates to a sudden act. There is
nothing on record to show that there was
any mens rea on the part of present
accused-appellants to commit the alleged
crime or there was any such circumstance
to establish existence of a calculated mens
rea to take revenge of any such act
committed by the deceased prior to the
occurrence or there was pre existing enmity
between the two. This aspect of the matter
has remained untouched by Court-below.

34. Thus the question which arises for
determination in this appeal is "whether the
case in hand is one relating to culpable
homicide amounting to murder (punishable
under Section 302 I.P.C.) or culpable
homicide
not
amounting
to
murder
(punishable under Section 304 I.P.C.)."

35. The law takes care of such a
situation. Section 300 IPC lays down the
exceptions to Section 299 IPC which deals
with culpable

homicide not amounting to
murder. Any act done upon sudden and

grave provocation is the 4th
exception to Section 300 IPC. For ready
reference Sections 299 and 300 IPC are
reproduced herein-under:

299.
Culpable
homicide.--
Whoever causes death by doing an act
with the intention of causing death, or
with the intention of causing such bodily
injury as is likely to cause death, or with
the knowledge that he is likely by such
act to cause death, commits the offence of
culpable homicide.

300. Murder.--Except in the
cases
hereinafter
excepted,
culpable
homicide is murder, if the act by which
the death is caused is done with the
intention of causing death, or-

(Secondly) --If it is done with
the intention of causing such bodily injury
as the offender knows to be likely to
cause the death of the person to whom the
harm is caused, or--

(Thirdly) --If it is done with the
intention of causing bodily injury to any
person and the bodily injury intended to
be inflicted is sufficient in the ordinary
course of nature to cause death, or--

(Fourthly)
--If
the
person
committing the act knows that it is so
imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
1068 INDIAN LAW REPORTS ALLAHABAD SERIES

36. It would be worthwhile to refer
to judgment in Surain Singh Vs. State of
Punjab reported in 2017 (5) SCC 796,
wherein Court in paragraphs 13 and 14
has explained law relating to the 4th
exception to Section 300 Cr.P.C. The
same are quoted herein-below:-

13. Exception 4 to Section 300
of the Indian Penal Code applies in the
absence of any premeditation. This is very
clear from the wordings of the Exception
itself. The exception contemplates that the
sudden fight shall start upon the heat of
passion on a sudden quarrel. The fourth
exception to Section 300 Indian Penal
Code covers acts done in a sudden fight.
The said Exception deals with a case of
provocation not covered by the First
exception, after which its place would
have
been
more
appropriate.
The
Exception is founded upon the same
principle, for in both there is absence of
premeditation. But, while in the case of
Exception 1 there is total deprivation of
self control, in case of Exception 4, there
is only that heat of passion which clouds
men's sober reason and urges them to
deeds which they would not otherwise do.
There is provocation in Exception 4 as in
Exception 1, but the injury done is not the
direct consequence of that provocation. In
fact, Exception 4 deals with cases in
which notwithstanding that a blow may
have been struck, or some provocation
given in the origin of the dispute or in
whatever way the quarrel may have
originated, yet the subsequent conduct of
both parties puts them in respect of guilt
upon an equal footing. A"sudden fight"
implies mutual provocation and blows on
each side. The homicide committed is
then clearly not traceable to unilateral
provocation, nor could in such cases the
whole blame be placed on one side. For if
it
were
so,
the
Exception
more
appropriately
applicable
would
be
Exception 1. There is no previous
deliberation or determination to fight. A
fight suddenly takes place, for which both
parties are more or less to be blamed. It
may be that one of them starts it, but if the
other had not aggravated it by his own
conduct it would not have taken the
serious turn it did. There is then mutual
provocation and aggravation, and it is
difficult to apportion the share of blame
which attaches to each fighter.

14. The help of Exception 4 can
be invoked if death is caused (a) without
premeditation, (b) in a sudden fight, (c)
without the offenders having taken undue
advantage or acted in a cruel or unusual
manner, and (d) the fight must have been
with the person killed. To bring a case
within Exception 4 all the ingredients
mentioned in it must be found. It is to be
noted that the "fight" occurring in
Exception 4 to Section 300 Indian Penal
Code is not

defined in Indian Penal Code. It
takes two to make a fight. Heat of passion
requires that there must be no time for the
passions to cool down and in this case,
the parties had worked themselves into
fury on account of the verbal altercation
in the beginning. A fight is a combat
between two and more persons whether
with or without weapons. It is not possible
to enunciate any general Rule as to what
shall be deemed to be a sudden quarrel. It
is a question of fact and whether a
quarrel is sudden or not must necessarily
depend upon the proved facts of each
case. For the application of Exception 4,
it is not sufficient to show that there was a
sudden quarrel and there was no
premeditation. It must further be shown
that the offender has not taken undue
advantage or acted in a cruel or unusual
6 All. Ram Sahai & Anr. Vs. State of U.P. 1069
manner.
The
expression
"undue
advantage" as used in the provision
means "unfair advantage".

37. In the light of above, we are of the
view that case in hand clearly falls within
the exceptions provided for in Section 300
I.P.C.

38. Accordingly, we uphold the view
taken by Court below that accused
appellants are guilty of committing murder
of deceased Laxmi Narain but the offence
committed comes within the ambit of
Section 304 Part-I IPC and not 302 IPC.
However, for the reasons mentioned herein
above, we modify the punishment awarded
to accused-appellants by Court-below.

39. The conviction of accusedappellants under Section 302 I.P.C. as
imposed by VIIIth Additional Sessions
Judge, Court No. 8, Kanpur vide judgement
and order dated 11.04.1983 is converted
into conviction under Section 304 Part-I
I.P.C.
Consequently,
appellants
shall
undergo rigorous imprisonment for a period
of 10 years if not already completed.
Appellants
shall
be
released
after
calculating
remission
under
relevant
provisions
of
Code
of
Criminal
Procedure/completion
of
sentence.
Appellants, namely, Onkar and Uma
Shanker are in jail. They shall serve out the
sentence so awarded if not already
completed.

40. The appeal is partly allowed.

41. Office is directed to send back the
lower court record to the concerned Court
below forthwith.

42. Let a copy of this order be
communicated
to
concerned
Jail
Superintendent as well as Legal Services
Authority, High Court, Allahabad.
----------
(2020)06ILR A1069
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.06.2020

BEFORE

THE HON'BLE MRS. REKHA DIKSHIT, J.

Criminal Appeal No. 1596 of 2005
&
Criminal Appeal No. 114 of 2006
&
Criminal Appeal No. 1650 of 2005

Ram Sahai & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Pawan Kumar Singh, Ashok Kumar Singh,
B.P. Singh, Manish Bajpai

Counsel for the Respondent:
Government Advocate

Criminal Law-Indian Penal Code, 1860Sections 148, 302/149 and 506.-Appeal
against conviction.

Testimony of single witness-
The testimony of the single witness is enough
for conviction of found to be reliable on the
touchstone of credibility. The statement of
P.W.-1 was recorded after lapse of 66 days,
without any explanation by the Investigating
Officer. (Para-35)

Medical Evidence and Ocular Evidence:-
The medical evidence makes the ocular
testimony improbable, it becomes a relevant
factor in the process of the evaluation of
evidence. (Para-39)

Benefit of doubt-
These facts raise strong suspicion that the
accused-appellants committed the murder of
the deceased and the sole testimony of single