# Phool Chand Yadav (In Jail) v. State of U.P

- **Citation:** (2022) 5 ILRA 590
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-29
- **Case number:** Criminal Appeal No.1166 of 2006
- **Bench:** Ashwani Kumar Mishra, Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chand-yadav-in-jail-v-state-of-u-p-48561
- **Pages:** 12

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-challenge
to-conviction-modification-broad daylight
murder-appellant gave one or two lathi
blow to the deceased's head -Though it
was on vital part but it was without
intention to kill-ocular evidence also
shown that the blow of lathi was on headocular evidence cannot be discarded on
any discrepancy of the medical evidenceappellant knowingly made a single blow
that it was likely to cause death it would
be a culpable homicide not amounting to
murder which fall u/s 304 Part II IPC
because the intention to cause death
could not be proved.(Para 1 to 29)

B. In the instant case, though any enmity
between the deceased and the appellant
could not be proved but it is a case of an
incident occurred in broad day light in
which the deceased had suffered serious
injury on account of which he succumbed
to death. if the motive and intention to kill
is not proved then it is required to be
5 All. Phool Chand Yadav Vs. State of U.P.
591
considered as to whether the offence
would fall under the category of murder or
not otherwise it may be a case of culpable
homicide not amounting to murder. (Para
19 to 27)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

590 INDIAN LAW REPORTS ALLAHABAD SERIES
committed an error in holding that the
appellant no.2, Raj Bahadur Singh was
guilty of the offence under Section 302
I.P.C. read with Section 149 I.P.C.

39. The upshot of the aforesaid
discussion is that the conviction of appellant
no.2, Raj Bahadur Singh under Sections 148,
436/149, 429/149, 323/149 I.P.C. is based on
cogent and reliable evidence wherein no
interference by this Court is warranted.
Whereas, his conviction under Section 302
I.P.C. read with Section 149 I.P.C. has not
been established beyond a reasonable doubt.
Therefore, the same being illegal and
perverse deserves to be set aside.

40. The instant appeal is thus, partly
allowed. The conviction of appellant no.2,
Raj Bahadur Singh under Sections 148,
436/149, 429/149, 323/149 I.P.C. and
sentences awarded therefor are affirmed.
Whereas his conviction and sentence under
Section 302 I.P.C. read with Section 149
I.P.C. are hereby set aside. He is acquitted of
the charges under Section 302 I.P.C. read
with Section 149 I.P.C.

41. In case, the appellant no.2, Raj
Bahadur Singh has already undergone
sentences awarded to him for the offences
under Sections 148, 436/149, 429/149,
323/149 I.P.C., he shall be released forthwith,
unless required in any other case.

42. The appellant no.2, Raj Bahadur
Singh, after his release, shall file a personal
bond of Rs.50,000/- and two sureties in the
like amount to the satisfaction of the learned
trial Court in compliance of Section 437A
Cr.P.C within a period of one month from
today.

43. Let the lower court record along
with a copy of this judgment be transmitted
forthwith to the learned trial Court for
information and necessary compliance.
----------
(2022)05ILR A590
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.04.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE RAJNISH KUMAR, J.

Criminal Appeal No.1166 of 2006

Phool Chand Yadav ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Manu Sharma (A.C.), Sri Ram Pravesh
Yadav, Sri R.S. Chauhan

Counsel for the Respondent:
A.G.A.

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Section 302-challenge
to-conviction-modification-broad daylight
murder-appellant gave one or two lathi
blow to the deceased's head -Though it
was on vital part but it was without
intention to kill-ocular evidence also
shown that the blow of lathi was on headocular evidence cannot be discarded on
any discrepancy of the medical evidenceappellant knowingly made a single blow
that it was likely to cause death it would
be a culpable homicide not amounting to
murder which fall u/s 304 Part II IPC
because the intention to cause death
could not be proved.(Para 1 to 29)

B. In the instant case, though any enmity
between the deceased and the appellant
could not be proved but it is a case of an
incident occurred in broad day light in
which the deceased had suffered serious
injury on account of which he succumbed
to death. if the motive and intention to kill
is not proved then it is required to be
5 All. Phool Chand Yadav Vs. State of U.P.
591
considered as to whether the offence
would fall under the category of murder or
not otherwise it may be a case of culpable
homicide not amounting to murder. (Para
19 to 27)

The appeal is partly allowed. (E-6)

List of Cases cited:
1. Solanki Chimanbhai Ukabhai Vs St. of Guj.
(1983) 2 SCC 174

2.
Virsa
Singh
Vs
St.
of
Punj.
Manu/
SC/0041/1958 (AIR 1958 SC 465)

3. Pulicherla Nagarjun Vs St. of A.P. (2006) 11
SCC 444

4. Suresh Chandra Bahri Vs St. of Bih. & ors.
MANU/SC/0500/1994

5. Joseph Vs St. of Ker. (1994) AIR SC 34

6. Gurmukh Singh Vs St. of Har. (2009) 15 SC
635

7. Gurmail Singh & ors. Vs St. of Punj. (1982) 3
SCC 185

(Delivered by Hon'ble Rajnish Kumar, J.)

1 . This appeal has been preferred
against the judgment and order dated
12.01.2006 passed by Additional District
and Sessions Judge Court No.6, Jaunpur in
Sessions Trial No.126 of 2004; State
Versus Phool Chandra under Section 302
IPC, Police Station-Sarai Khwaja, DistrictJaunpur arising out of Case Crime No.8 of
2004 whereby the appellant Phool Chandra
has been convicted and awarded sentence
under
Section
302
IPC
for
life
imprisonment.

2. The F.I.R. was lodged by the
informant Rajesh Kumar Agrahri son of the
deceased Ram Asrey on 08.01.2004 at
18:10 alleging therein that while his father
was tying his goat in front of Malhani
Bazar (Bhadora) Temple, Police Station
Sarai Khwaja, District Jaunpur at 01:30 in
the day on 08.01.2004, Phool Chandra
Yadav, the appellant son of Kewla Prasad
suddenly came and started beating his
father by a Danda. His father shouted then
the informant and Sonu son of Harish
Chandra and Gulab Chandra @ Gullu son
of Banarsi rushed to the spot and after
seeing them the accused ran away. The
deceased was taken to the Sadar Hospital,
Jaunpur where he died during treatment. In
pursuance of the aforesaid F.I.R. the
investigation was conducted and the charge
sheet was submitted against the appellant
under Section 304 I.P.C.

3. Since the charge was under Section
304 I.P.C. the case was committed to the
Sessions Court. The charge was framed by
the Sessions Judge, Jaunpur on 20.04.2004
against the appellant under Section 302
I.P.C. Charge was read over and explained
to the accused who denied the charge and
claimed to be tried.

4. In support of the charge seven
witnesses were examined namely Rajesh
Kumar Agrahri as PW-1, Sonu Gupta as
PW-2 as witnesses of fact. Head Constable
Adya Prasad Yadav as PW-3, who had
written the F.I.R. on the basis of complaint.
Dr. P.N. Pandey as PW-4, who had
conducted
the
postmortem.
Constable
Subhash Chandra Pandey as PW-5, who
took the body of the deceased to the
postmortem house. Sub-Inspector Amar
Singh as PW-6, the investigating officer of
the case and Dr. Rajnath Gautam as PW-7
the Medical Officer who had examined the
injuries of the deceased.

5. After the evidence was adduced by
the
prosecution,
the
appellant
was
592 INDIAN LAW REPORTS ALLAHABAD SERIES
examined under Section 313 Cr.P.C. He
denied the allegations and stated that the
evidence has been given by PW-1 and PW2 due to enmity and PW-4 to PW-7 are the
Government witnesses and they have given
forged evidence. Lastly he stated that Ram
Asrey was patient of Asthema. He had
difficulty in movement. While he was tying
the goat near the temple, the goat tried to
run, on account of which he fell on well
head in which he suffered injuries but he
has
falsely
been
implicated.
After
considering the evidence and material on
record, the appellant has been convicted
and awarded sentence for life imprisonment
under Section 302 I.P.C.

6. We have heard Sri Manu Sharma,
learned Amicus Curiae for the appellant
and Km. Meena, learned A.G.A. for the
State.

7. Learned counsel for the appellant
submitted that the appellant has falsely
been implicated. The presence of witnesses
on the spot and the place of incident is
doubtful. The PW-2 stated that he and
Rajesh; PW-1 had gone to see fair in Baba
at Gauspur and returned home in the
evening and then took deceased to hospital.
It was informed by the people that the
deceased has sustained injuries by lathi
danda. He further submitted that injured
was admitted in hospital by the villager and
not by the son therefore the presence of
PW-1 is also doubtful. He further submitted
that the place of incident is also doubtful
because no blood stain was recovered
whereas doctor had stated that deceased
died due to excessive bleeding. The doubt
has also been raised in regard to place of
arrest of the appellant on the ground that
PW-1 stated that the arrest was made from
sugar cane field whereas PW-2 stated that
the appellant was found sitting at his house
eating sugar cane. The recovery is also said
to be doubtful and it has been argued that
there is all possibility that the injury was
sustained by the deceased due to accident
while tying goat. He further submitted that
motive for offence could not be proved
therefore the intention to kill also could not
be proved so it can not be said to be a case
falling under Section 302 I.P.C. because the
F.I.R. was also lodged and charge sheet
was submitted under Section 304 I.P.C. and
charge under Section 302 I.P.C. could not
be proved beyond doubt, therefore the
sentence
awarded
is
also
excessive.
Accordingly he submitted that the appeal is
liable to be allowed.

8. Learned A.G.A. vehemently
opposed the submissions of learned counsel
for the appellant. She had taken us to the
evidence on record and contended that
though the charge sheet was submitted
under Section 304 I.P.C. but the charge was
rightly framed under Section 302 I.P.C. and
the charge was proved by the eye witnesses
beyond doubt. It was a case of broad day
light murder which has been proved by eye
witnesses therefore even if the motive
could not be proved, it is of no
consequence. The conviction has rightly
been made and adequate sentence has been
awarded to the appellant. The appeal is
liable to be dismissed.

9.

We
have
considered
the
submissions of learned counsel for the
parties and perused the evidence and
material on record.

10. The PW-1 Rajesh Kumar Agrahri
lodged the F.I.R. at 18:10 on 08.01.2004 in
regard to the aforesaid incident at 01:30
PM on the same day. The F.I.R. was lodged
under Section 304 I.P.C. PW-1 had proved
the F.I.R. He had stated in his evidence that
5 All. Phool Chand Yadav Vs. State of U.P.
593
there are a large number of Yadvas in his
village. He is of business community who
are in minority therefore the persons of
Yadav community keep enmity with them.
He had further supported the version of the
F.I.R. and stated that after incident he had
taken his father to the hospital where he
died during treatment. The deceased died
during treatment at 05:10 PM and the F.I.R.
was lodged at 06:10 PM therefore there
was no delay in lodging the F.I.R. because
it is a primary duty of the son to first get his
father treated in case of such incident. PW1 had stated that when the appellant had
started beating his father by stick, he cried
then he alongwith Sonu and Gulab of his
village reached on the spot then the
appellant ran away. However, on account
of beating by lathi (danda) his father
suffered serious injuries therefore he was
taken to hospital. He also stated in his
evidence that his father had suffered
injuries on the back side of his head. An
exhaustive cross examination was done
from PW-1 but nothing could be extracted
which may doubt the testimony of PW-1.

11. PW-2 had also stated that the
incident is of 1-1/2 PM on 08.01.2004. He
alongwith Gulab Chandra @ Gullu and
Rajesh Kumar rushed to the spot after
hearing the cry of the deceased Ram Asrey
then he saw that the appellant was beating
Ram Asrey with Lathi & Danda and after
sustaining injuries he fell down, but even
thereafter he was being beaten. He and
others tried to catch the appellant but he ran
away. This statement was recorded on
04.01.2005
and
after
a
long
cross
examination
on
several
dates
i.e.
02.02.2005, 22.02.2005 and 27.05.2005 he
was got declared hostile by the prosecution
as he stated that he and Rajesh had gone to
see the fair in Baba of Ghauspur. They
returned in the evening and then took the
deceased to hospital and the people had
informed that the injuries were suffered
from Lathi & Danda. Thereafter in crossexamination and suggestion of cross
defence he stated that it is wrong to say that
he has not seen the incident from his eyes.
Therefore even though he was declared
hostile after cross examination on several
dates but lastly he supported his evidence
by the suggestion therefore his earlier
statement can not be ignored in which he
had proved the incident. It is settled
proposition of law that even after a witness
has been declared hostile, the evidence
which
inspires
confidence,
can
be
considered
and
would
be
relevant.
Therefore this Court is of the view that it is
a case in which there are two eye witnesses
of the incident who have proved the
incident and nothing could come out in the
cross-examination which may raise any
doubt about their testony about the
incident. Therefore the contention of
learned counsel for the appellant that the
presence of witnesses at the time of
incident is doubtful, is misconceived and
not tenable and liable to be rejected. As
such the incident has been proved by two
eye witnesses.

12. PW-3 Head Constable 98 Aadya
Prasad Yadav has proved the lodging of the
F.I.R. and G.D. entries. PW-4 Dr. P.N.
Pandey,
who
had
conducted
the
postmortem, has proved the postmortem
report in which one injury was found. He
stated that in his opinion the cause of death
was excessive bleeding due to anti mortem
injury. PW-5 has stated in his evidence that
he had sealed the dead body and produced
for postmortem before the doctor. The
inquest report was prepared by the S.I.
Ramesh Chandra Mishra on which he has
also signed. PW-6 S.I. Amar Singh has
stated that while he was posted as Sub-
594 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspector, Police Station- Sarai Khwaja, the
F.I.R. vide Case Crime No.804 under
Section 304 I.P.C. was lodged on a written
complaint of Rajesh Agrahri against the
appellant Phool Chandra. The investigation
was assigned to him. He after recording the
statements and inspection of the site and
preparation of the site plan which is in his
writing and under his signature had
submitted the charge sheet under Section
304. He also stated that he had recovered
the Lathi and prepared the form which is
signed by the witnesses. PW-7 Dr. Rajnath
Gautam, Anaesthesia Department, Moti Lal
Nehru Medical College, Allahabad had
stated that while he was posted as
Emergency
Medical
Officer,
District
Hospital Jaunpur on 08.01.2004 had
inspected the injuries of the deceased Ram
Asrey at 02:53 PM in which he had
suffered four injuries. He had also stated
that the death could have been caused on
account of injuries no.1 and 2. He proved
the injury report.

13. Learned counsel for the appellant
had submitted that since the presence of
witnesses on the spot is doubtful and
opinion of the doctor that if the deceased
would have been old he could die on
account of injuries sustained on the head by
falling and the statement under Section 313
Cr.P.C. there is all possibility of injuries to
have been caused due to accident while
tying the goat and the appellant has been
falsely implicated in the case. As discussed
above, since the precense of the witnesses
can not be doubtted at the time of
occurrence and merely because an opinion
has been given by the doctor and the
appellant has stated in his statement under
Section 313 I.P.C. it can not be said that
injuries have been caused due to falling and
due to accident while tying goat because
the occurrence of incident has been proved
by the two eye witnesses PW-1 and PW-2.
The prosecution witnesses, who are the eye
witnesses, have proved that the deceased
had suffered injuries by beating of the
appellant and even otherwise the appellant
or any body else had not made any
complaint regarding injuries to have been
suffered by the deceased on account of any
accident while tying the goat.

14. The deceased, after the incident,
was taken to the hospital by PW-1 Rajesh
Kumar Agrahri, PW-2 Sonu Gupta and
Gulab. He was examined by the Emergency
Medical
Officer
in
District
Hospital
Jaunpur. Four injuries were recorded by the
Medical Officer. (i) Lacerated wound
4cmX 1cm deep on left side skull above
5cm from the left ear pinna, bleeding. (ii)
Lacerated wound 3cm X 1⁄2 cm bone deep
on back of skull 8cm post to right ear pinna
(iii) Abbression 2cmX1cm above the right
year and (iv) abbression 3cmX2cm above
the left ear pinna. The injuries (i) and (ii)
were kept under observation and X-Ray
was adviced. It was opined that the injuries
were caused by hard and blunt object. The
doubt has also been raised in regard to
presence of PW-1 because in the injury
report the deceased has been shown
brought by Gulab. But it can not be
accepted in view of evidence of PW-1 PW2 and PW-7. No complaint was also made
by any body in this regard. The appellant
could also have produced Gulab in defence
to prove it, but it was not done. The
evidence on record is sufficient to reject the
contention of learned counsel for the
appellant.

15. The deceased died during
treatment at 05:10 PM thereafter the F.I.R.
was lodged at 06:10 PM. The postmortem
of deceased was conducted on 09.01.2004.
In the postmortem lacerated wound with
5 All. Phool Chand Yadav Vs. State of U.P.
595
blue mark 8cmX4cm X-skull deep on the
right side of head 8cm above right ear
pinna under lying skull bone fractured and
bleeding was found. Blood was also found
in skull. Therefore, though there was
difference in the medical examination and
the postmortem in regard to the injuries but
it is not disputed that anti mortem injury
was found on the head of the deceased and
the cause of death was anti mortem injuries
on the vital part. The ocular evidence also
shown that the blow of lathi was on head.
The argument was raised that the informant
had got the injuries made after making
payment
to
the
Emergency
Medical
Officer. However the doctor has stated in
his statement on oath that he has received
the prescribed fees.

16. The trial court considered the
issue and recorded a finding that the doctor
conducting the postmortem with the help of
sweeper may have left to see the same. This
Court while examining the medical report
and the postmortem report found that the
lacerated wounds mentioned in the injury
report are of 4cmX1cm and 3cmX 1⁄2 cm on
the head and in the posmortem the injury
recorded is 8cmX4cm X-skull deep on the
right side of head 8 cm above the right ear
pinna and underlying skull bone was
fractured. Therefore there is a possibility
that the injury may have been seen as one
in the postmortem due to bleeding and
proximity in the injuries. However this
court is of the view that since some doubt
has been raised in regard to the injury
report and no cogent evidence could be
adduced to doubt the post mortem report
the post mortem report would prevail.
However, both the reports have been
proved by the respective doctors and no
cross examination was made on it, which
may doubt the reports. Therefore non
collection of blood from the spot also can
not be fatal because it may be a fault on the
part
of
investigating
officer.
Even
otherwise the medical evidence is only
corroborative and ocular evidence cannot
be discarded on any discrepancy of the
medical evidence. The Hon'ble Supreme
Court in the case of Solanki Chimanbhai
Ukabhai Versus State of Gujarat; (1983)
2 SCC 174 has considered the issue and
held as under in paragraph 13:-

"13. Ordinarily, the value of
medical evidence is only corroborative. It
proves that the injuries could have been
caused in the manner alleged and nothing
more. The use which the defence can make
of the medical evidence is to prove that the
injuries could not possibly have been
caused in the manner alleged and thereby
discredit
the
eye-witnesses.
Unless,
however the medical evidence in its turn
goes so far that it completely rules out all
possibilities whatsoever of injuries taking
place
in
the
manner
alleged
by
eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the
ground of alleged inconsistency between it
and the medical evidence."

17. Doubt is also raised by the learned
counsel for the appellant regarding the
recovery on the ground that Lathi was not
produced before the Court. But it can not
be a ground for doubting the recovery
because the Lathi was recovered, the
description of which was made in the
recovery memo dated 08.01.2004. Even
otherwise the witnesses have proved that
the appellant had beaten the deceased by
the Lathi and medical and postmortem also
indicate that the injuries were caused by the
hard and blunt object.

18. The issue raised regarding place
of arrest is also not tenable because the
596 INDIAN LAW REPORTS ALLAHABAD SERIES
place of arrest is not material in view of
proof of case beyond doubt.

19. This is a case in which though any
enmity between the deceased and the
appellant could not be proved but it is a
case of an incident occurred in broad day
light in which the deceased had suffered
serious injury on account of which he
succumbed to death. Since the motive
could not be proved therefore it may be a
case in which the intention to kill may not
be there. If the motive and intention to kill
is not proved then it is required to be
considered as to whether the offence would
fall under the category of murder or not
otherwise it may be a case of culpable
homicide
not
amounting
to
murder.
Sections 299, 300 and 304 I.P.C. relevant
for the purpose are extracted below:-

"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--

2ndly.--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--

3rdly.--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--

4thly.--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.

Exception
1.--When
culpable
homicide
is
not
murder.--Culpable
homicide is not murder if the offender,
whilst deprived of the power of self-control
by grave and sudden provocation, causes
the death of the person who gave the
provocation or causes the death of any
other person by mistake or accident.

The above exception is subject to
the following provisos:--

First.--That the provocation is
not sought or voluntarily provoked by the
offender as an excuse for killing or doing
harm to any person.

Secondly.--That the provocation
is not given by anything done in obedience
to the law, or by a public servant in the
lawful exercise of the powers of such public
servant.

Thirdly.--That the provocation is
not given by anything done in the lawful
exercise of the right of private defence.

Explanation.--Whether
the
provocation was grave and sudden enough
to prevent the offence from amounting to
murder is a question of fact.

Exception 2.--Culpable homicide
is not murder if the offender in the exercise
5 All. Phool Chand Yadav Vs. State of U.P.
597
in good faith of the right of private defence
of person or property, exceeds the power
given to him by law and causes the death of
the person against whom he is exercising
such
right
of
defence
without
premeditation, and without any intention of
doing more harm than is necessary for the
purpose of such defence.

Exception 3.--Culpable homicide
is not murder if the offender, being a public
servant or aiding a public servant acting
for the advancement of public justice,
exceeds the powers given to him by law,
and causes death by doing an act which he,
in good faith, believes to be lawful and
necessary for the due discharge of his duty
as such public servant and without ill-will
towards the person whose death is caused.

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's having taken undue
advantage or acted in a cruel or unusual
manner.

Exception 5.--Culpable homicide
is not murder when the person whose death
is caused, being above the age of eighteen
years, suffers death or takes the risk of
death with his own consent.

304. Punishment for culpable
homicide not amounting to murder.--
Whoever commits culpable homicide not
amounting to murder, shall be punished
with
1
[imprisonment
for
life],
or
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine, if the act by
which the death is caused is done with the
intention of causing death, or of causing
such bodily injury as is likely to cause
death;

or with imprisonment of either
description for a term which may extend to
ten years, or with fine, or with both, if the
act is done with the knowledge that it is
likely to cause death, but without any
intention to cause death, or to cause such
bodily injury as is likely to cause death.

20. In view of above to bring a case
under Section 300 firstly it must be
established that a bodily injury is present;
secondly the nature of the injury must be
proved and thirdly it must be proved that
there was an intention to inflict that
particular bodily injury and it was not
accidental or unintentional or that some
other kind of injury was intended and
fourthly it must be proved that injury
inflicted on the deceased is sufficient to
cause death in the ordinary course of
nature. If all these eliments are established
by the prosecution the offence would be
murder under Section 300 I.P.C.

21. The Hon'ble Supreme Court
considered the issue in the case of Virsa
Singh
Vs.
The
State
of
Punjab;
Manu/SC/0041/1958 (AIR 1958 SC 465)
and held as under in paragraph 22 to 30:-

22. First, it must establish, quite
objectively, that a bodily injury is present;

23. Secondly, the nature of the
injury must be proved; These are purely
objective investigations.

24. Thirdly, it must be proved that
there was an intention to inflict that
particular bodily injury, that is to say, that
it was not accidental or unintentional, or
598 INDIAN LAW REPORTS ALLAHABAD SERIES
that some other kind of injury was
intended.

25. Once these three elements are
proved to be present, the enquiry proceeds
further and,

26. Fourthly, it must be proved
that the injury of the type just described
made up of the three elements set out above
is sufficient to cause death in the ordinary
course of nature. This part of the enquiry is
purely objective and inferential and has
nothing to do with the intention of the
offender.

27. Once these four elements are
established by the prosecution (and, of
course, the burden is on the prosecution
throughout) the offence is murder under s.
300, 3rdly. It does not matter that there was
no intention to cause death. It does not matter
that there was Do intention even to cause an
injury of a kind that is sufficient to cause
death in the ordinary course of nature (not
that there is any real distinction between the
two). It does not even matter that there is no
knowledge that an act of that kind will be
likely to cause death. Once the intention to
cause the bodily injury actually found to be
present is proved, the rest of the enquiry is
purely objective and the only question is
whether, as a matter of purely objective
inference, the injury is sufficient in the
ordinary course of nature to cause death.

No one has a licence to run
around inflicting injuries that are sufficient
to cause death in the ordinary course of
nature and claim that they are not guilty of
murder. If they inflict injuries of that kind,
they must face the consequences; and they
can only escape if it can be shown, or
reasonably deduced that the injury was
accidental or otherwise unintentional.

28. We were referred to a
decision of Lord Goddard in R v. Steane (1)
where the learned Chief Justice says that
where a particular intent must be laid and
charged, that particular intent must be
proved. Of course it must, and of course it
must be proved by the prosecution. The
only question here is, what is the extent and
nature of the intent that s. 300 3rdly
requires, and how is it to be proved ?

29. The learned counsel for the
appellant next relied on a passage where
the learned Chief Justice says that:

"if, on the totality of the evidence,
there is room for more than one view as to
the intent of the prisoner, the jury should be
directed that it is for the prosecution to
prove the intent to the jury's satisfaction,
and if, on a review of the whole evidence,
they either think that the intent did not exist
or they are left in doubt as to the intent, the
prisoner is entitled to be acquitted."

30. We agree that that is also the
law in India. But so is this. We quote a few
sentences earlier from the same learned
judgment:

"No doubt, if the prosecution
prove an act the natural consequences of
which would be a certain result and no
evidence or explanation is given, then a
jury may, on a proper direction, find that
the prisoner is guilty of doing the act with
the intent alleged."

22. The Hon'ble Supreme Court in the
case of Pulicherla Nagarjun Vs. State of
Andhra Pradesh; (2006) 11 SCC 444
observed as to what is to be considered for
deciding a case as to whether it falls under
Section 302 or 304 Part-I or 304 Part-II and
also the intention to cause death can be
5 All. Phool Chand Yadav Vs. State of U.P.
599
gathered
from
a
combination
of
circumstances. The relevant paragraph-18
is extracted below:-

"18. Therefore, 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 I or 304 Part II.
Many petty or insignificant matters #
plucking of a fruit, straying of a 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, jealousy 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 converted 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.

The intention to cause death can
be gathered generally from a combination
of a few or several of the following, among
other, circumstances : (i) nature of the
weapon used; (ii) whether the weapon was
carried by the accused or was picked up
from the spot; (iii) whether the blow is
aimed at a vital part of the body; (iv) the
amount of force employed in causing
injury; (v) whether the act was in the
course of sudden quarrel or sudden fight or
free for all fight; (vi) whether the incident
occurs by chance or whether there was any
pre- meditation; (vii) whether there was
any prior enmity or whether the deceased
was a stranger; (viii) whether there was
any grave and sudden provocation, and if
so, the cause for such provocation; (ix)
whether it was in the heat of passion; (x)
whether the person inflicting the injury has
taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the
accused dealt a single blow or several
blows. The above list of circumstances is,
of course, not exhaustive and there may be
several other special circumstances with
reference to individual cases which may
throw light on the question of intention. Be
that as it may."

23. The Hon'ble Supreme Court in the
case of Suresh Chandra Bahri Vs. State of
Bihar and Others; MANU/SC/0500/1994
has held that sometimes motive plays an
important role and becomes a compelling
force to commit a crime and therefore motive
behind the crime is a relevant factor for which
evidence may be adduced. However it further
noticed that in a case where there is clear proof
of motive for the commission of the crime it
affords added support to the finding of the
court that the accused was guilty of the offence
charged with. But the absence of proof of
motive does not render the evidence bearing
on the guilt of the accused nonetheless
untrustworthy or unreliable because most
often it is only the perpetrator of the crime
alone who knows as to what circumstances
prompted him to a certain course of action
leading to the commission of the crime.
Therefore motive may only be a relevant
factor to form an opinion as to whether in a
given circumstances there was an intention to
kill on account of which the case may fall
under Section 302.

24. In the present case the injuries
were inflicted by a blow of Lathi which can
600 INDIAN LAW REPORTS ALLAHABAD SERIES
not be said to be a deadly weapon.
However if the injuries inflicted on the vital
part it may cause death. Therefore in such
circumstance if the motive and intention to
kill is not proved the case may fall under
Section 304-I or 304-II. The Hon'ble
Supreme Court in the case of Joseph Vs.
State of Kerala; AIR 1994 SC 34 has
accepted the contention of the appellant
that the Lathi used as a weapon is not a
deadly weapon. In the said case the
occurrence was a result of trivial incident
and the accused dealt two blows on the
head with a Lathi. Therefore it was held
that it can not be said that he intended to
cause injury which is sufficient, at the most
it can be said that by inflicting such injuries
he has knowledge that he was likely to
cause a death and in such circumstance the
offence committed by him will be culpable
homicide not amounting to murder.

25. In the present case though four
injuries have been referred in the medical
examination held after the incident but in
the posmortem conducted on the body of
the deceased only one injury was found on
the back of head of the deceased i.e. on the
vital part. The deceased had died on
account of the said anti mortem injury.
Therefore even if it is a case of single blow
of Lathi and the appellant knowingly made
a single blow that it was likely to cause
death it would be a culpable homicide not
amounting to murder which will fall under
Section 304 Part-II I.P.C. because the
intention to cause death could not be
proved.

26. The Hon'ble Supreme Court in the
case of Gurmukh Singh Vs. State of
Haryana; (2009) 15 SC 635 held that the
appellant therein on the spur of the moment
inflicted a single lathi blow and the other
accused have not indulged in any overt act.
There was no intention or pre-meditation in
the mind of the appellant to inflict such
injuries to the deceased as were likely to
cause death in the ordinary course of
nature. Similar is the position in the present
case and if the appellant had intention to
kill he must have made repeated blows on
the vital part. The age of the appellant at
the time of incident was about 22 years of
age as recorded in the arrest memo.

27. The Hon'ble Supreme Court in the
case of Gurmail Singh and Others Vs.
State of Punjab; (1982) 3 SCC 185 in
which the accused no.1 was aged about 19
years shown in the judgment held that
having regard to all the circumstances and
the facts found by the High Court, it may
be said that accused no.1 is shown to have
committed an offence under Section 304
Part-II I.P.C.

28. In view of above and considering
the over all facts and circumstances of the
case it is apparent that the appellant who
was aged about 22 years of age at the time
of alleged incident made one or two blow
of Lathi on the deceased aged about 60
years. Though it was on a vital part but it
was without intention to kill because it
could not be proved. Though it may be with
the knowlodge that it is likely to cause
death. Therefore this Court is of the view
that the offence would fall under Section
304 Part-II I.P.C. The learned trial court
also has awarded the punishment of life
imprisonment only under Section 302
I.P.C. whereas the punishment for murder
provided under Section 302 is with death or
imprisonment for life and shall also be
liable
to
fine
therefore
only
life
imprisonment could not have been awarded
under Section 302 IPC. In the present case
the F.I.R. was lodged under Section 304
and the charge sheet was also filed under
5 All. Balvinder Singh Vs. State of U.P.
601
Section 304 but since charge was framed
under Section 302 therefore the same has
been held to be proved and the punishment
has been awarded under Section 302 which
is not in accordance with the provision.
Therefore, it appears that the court was
intending to award punishment under
Section 304 but awarded the punishment
under Section 302 I.P.C. Accordingly, this
Court is of the view that the judgment and
order passed by the learned trial court is
liable to be modified and punishment
awarded to the appellant under Section 302
IPC is liable to be converted under Section
304 Part-II.

29. The appeal is, accordingly, partly
allowed. The judgment and order dated
12.01.2006 awarding life imprisonment
under Section 302 IPC is modified and the
appellant
is
sentenced
with
the
imprisonment of 10 years and a fine of
Rs.20,000/- is imposed under Section 304
Part-II because the deceased was aged
about 60 years when he was done to death
by the appellant. In case the fine is not
deposited the appellant will have to serve
six moths more in jail. On completion of
the aforesaid punishment and in case the
appellant is not wanted in any case he shall
be released forthwith.

30. Before parting we record
appreciation for the assistance rendered by
Shri Manu Sharma, Amicus Curiae and
quantify the fees as Rs.20,000/- which shall
be paid to him forthwith.

31. The copy of this order shall be
communicated to the Jail Superintendent of
concerned
Jail
forthwith
for
communication
to
the
appellant
and
necessary compliance.
----------
(2022)05ILR A601
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No.1211 of 1991

Balvinder Singh ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajesh Singh, Sri Arvind Agarwal, Ms. Manju
Yadav, Sri Manoj Kumar Yadav

Counsel for the Respondent:
D.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-motive-dispute
over
land
property-appellant was not happy with
the share he got and therefore, he bore
enmity with the deceased-accused was
assaulting the deceased with an axe- axe
not recovered-ocular account rendered by
PW-1
and
PW-3
reliable
and
not
inconsistent with medical evidence-FIR
lodged promptly considering the distance
and the mode of transport available-father
and step-sister have deposed against him
and have proved the charge, with whom
no ill-will could be demonstrated-doctor
opined that possibility of wound being a
consequence of infliction of blow from an
axe-Prosecution succeeded in proving its
case
against
the
appellant
beyond
reasonable doubt.(Para 1 to 26)

B. Where there is a contradiction between
medical evidence and ocular evidence can
be crystallised to the effect that though
the ocular testimony of a witness has
greater evidentiary value vis-vis medical
evidence, when medical evidence makes
the ocular testimony improbable, that
becomes a relevant factor in the process
of the evaluation of evidence. However,