# Phool Chandra & Ors v. State of U.P

- **Citation:** (2025) 12 ILRA 90
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-12
- **Case number:** Criminal Appeal No. 1701 of 2004
- **Bench:** Rajnish Kumar, Zafeer Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/phool-chandra-ors-v-state-of-u-p-52945
- **Pages:** 16

## Text

_Characters 0–39,854 of 53,493. This is a partial read: ask again with offset=39854 for what follows._

90 INDIAN LAW REPORTS ALLAHABAD SERIES

26. The test identification parade was
organized
and
conducted
by
the
prosecution on 07.09.1981 after two
months of his arrest on 03.07.1981. No
explanation for the delay of two months in
conducting the test identification parade
has been given by the prosecution. It is also
surprising that village Chhatrashahpur
where the complainant's side resides and
village Bhagwas where the accused resides,
are located in the close vicinity of each
other. The villagers of neighbourhoood
villages situated in close vicinity are wellacquainted and familiar with each other.
The delay of about two months in
conducting the test identification parade
after arrest of the accused-appellant Bhola,
even without any explanation of delay,
itself
becomes
highly
doubtful
and
suspicious. Therefore, only on the ground
of test identification parade even after
delay of more than two months, accusedappellant Bhola could not be held guilty for
the commission of the heinous crime like
murder.

27. This delay of about two months in
conducting the test identification parade
makes the prosecution story as projected by
the prosecution against
the accusedappellant Bhola, highly doubtful and
unbelievable.

28. In light of the case law as held by
the Hon'ble Apex Court in the case of
Harinath and another (supra), we find that
judgment and order dated 10.07.1989 as
passed by the learned trial Court in Session
Trial No. 37 of 1982 (State Vs. Bhola and
others) holding guilty the accused-appellant
Bhola is not sustainable as per the law.

29. We find that accused-appellant
Bhola is also entitled to be acquitted of the
charge under Section 302 IPC by giving
benefit of doubt.

30. In the light of the above
discussions and analysis, we find that
Criminal Appeal No. 1529 of 1989 (Bhola
Vs. State) deserves to be allowed.

31. The criminal appeal is allowed.
Accordingly, we set aside the impugned
judgment and order dated 10.07.1989 of
conviction and sentence passed against the
accused-appellant Bhola by learned trial
Court in Session Trial No. 37 of 1982
arising out of Case Crime No. 52 of 1981,
under Sections 147, 148, 149, 302, 120B
IPC, police station Gyanpur, district
Varanasi. The appellant Bhola is acquitted
of the charge under Section 302 IPC. The
appellant is on bail. His bail bond is
cancelled and sureties are discharged. He
need not surrender.

32. Office is directed to certify the
judgment to the learned trial Court
forthwith along with lower court record.
----------
(2025) 12 ILRA 90
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.12.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.
THE HON'BLE ZAFEER AHMAD, J.

Criminal Appeal No. 1701 of 2004

Phool Chandra & Ors. ...Appellants
Versus
State of U.P. ...Respondent

Issue for consideration
Culpable Homicide and murder

Headnotes
12 All. Phool Chandra & Ors. Vs. State of U.P.
91
Culpable Homicide-sudden quarrel- incident
occurred in heat of passion- conviction of the
appellants under Section 302 I.P.C. read with
Section 34 I.P.C. not sustainable - liable to be
converted under Section 304 Part-II I.P.C. read
with Section 34 I.P.C-motive may only be a
relevant factor to form an opinion.(E-9)

Case Law Cited
1. Jagriti Devi Vs. State of Himachal Pradesh;
(2009) 14 SCC 771
2. Yudhishtir Vs. The State of Madhya Pradesh;
1971 (3) SCC 436
3. Mahesh Balmiki alias Munna Vs. State of M.P.;
(2000) 1 SCC 319
4. Litta Singh and Another Vs. State of
Rajasthan; (2015) 15 SCC 327
5. Pulicherla Nagarjun Vs. State of Andhra
Pradesh; (2006) 11 SCC 444
6. Suresh Chandra Bahri Vs. State of Bihar and
Others; 1995 Supp(1) SCC 80
7. Shahid Ali Vs. State of Uttar Pradesh; (2024)
14 SCC 243
8. Kariman Vs. State of Chhatisgarh; (2024) 13
SCC 136
9. State of Madhya Pradesh Vs. Shyamlal and
Others; (2025) 4 SCC 616

List of Acts
Indian Penal Code

List of Keywords
Exception 4 to Section 300 I.P.C., culpable
homicide not amounting to murder, motive and
intention to kill

Appearances of parties
Counsel for Petitioner(s) : Abdul Rafey Siddiqui,
Avinash
Kumar
Srivastava,
Rajesh
Kumar
Awasthi, Vishnu Swaroop Srivastava
Counsel for Respondent(s) : Govt. Advocate,
Avinash Tiwari, Balak Ram, Rama Niwas Pathak,
Ravi Kant Pandey, Sudhir Kumar pandey, Y.N.
Pandey

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

(1)
Heard
Sri
Avinash
Kumar
Srivastava,
learned
counsel
for
the
appellant No.1, Sri Rajesh Kumar Awasthi,
learned counsel for the appellant No.2, Sri
Pawan Kumar Mishra, learned A.G.A. for
the State and Sri Ravi Kant Pandey, learned
counsel for the complainant.

(2) The instant Criminal Appeal under
Section 374(2) of the Code of Criminal
Procedure, 1973 (here-in-after referred as
Cr.P.C.) has been filed against the
judgment and order dated 03.08.2004
passed
by
learned
Sessions
Judge,
Ambedkar
Nagar
in
Sessions
Trial
No.21/2000; State Vs. Phool Chandra and
Others,
arsing
out
of
Case
Crime
No.311/1999, under Sections 302, 504 and
506 of the Indian Penal Code, 1860 (herein-after referred as I.P.C.), Police Station
Baskhari, District Ambedkar Nagar, by
means of which, the appellants have been
convicted under Section 302 I.P.C. read
with Section 34 I.P.C. and sentenced under
Section 302 I.P.C. for life imprisonment
alongwith fine of Rs.10,000/- each and in
default of payment of fine, to undergo
additional
six
months'
rigorous
imprisonment and under Section 506 I.P.C.
to pay fine of Rs.5,000/- each and in
default of payment of fine, to undergo three
months' rigorous imprisonment and all the
appellants have been acquitted from the
charge of Section 504 I.P.C.

(3) The complainant; Ashok Kumar
Mishra R/o Village Hajiyapur, Police
Station Baskhari, District Ambedkar Nagar
submitted a written report at Police Station
Baskhari, District Ambedkar Nagar on
09.12.1999, which is extracted below:-

"नकल तहरीर हहन्दी वादी

 ेवा में श्रीमान िानाध्यक्ष महोिय िाना ब खारी
भज० अम्बेडकर नगर मान्यवर भनवेिन है भक प्रािी अशोक कुमार
भमश्रS/o िेव मभि भमश्र ग्राम हभजयापुर िाना व खारी भज०
अम्बेडकरनगर का भनवा ी है आज भि० 9.12.99 को मैं वा मेरे
भपता वा मेरे िाई अजय कुमार रोज कुमार अपने खेत में गेंहू की
92 INDIAN LAW REPORTS ALLAHABAD SERIES
बुवाई कर रहे िे। ाि में मेरा मजिूर रामिुिार जो मेरे गािंव का िा
गािंव के फूिचन्ि पुत्र रामबिन भतवारी हररचन्ि पुत्र रामविन वा
रामविन पुत्र गोमती भजनका खेत हमारे खेत के बगि है। अपने खेत
में काम कर रहे िे। फूिचन्ि हमारा मेड़ काट रहे िे। हमारे िाई
अजय कुमार ने मना भकया इ पर रामविन ने िल्कारा तिा हररश्चन्ि
तिा फूिचन्ि ने गािी िेते हुए कहा आज मार डािों ािो को इ
पर तीनों आिमी टूट पड़े फूिचन्ि ने कुिाि े मेरे िाई अजय कुमार
को मय करीब 9 बजे भिन में र में मारा। भज े वह भगर पड़े और
भचल्िाये हम िोग बचाने िौड़े तो हररचन्र हाि में कट्टा भिये हम
िोगो का मारने की धमकी िेते हुए कट्टे े फायर करते हुए हम िोगो
को िौड़ये हम िोग हल्िा मचाते हुए घर भक तरफ िागे हल्िा गुहार
 ुनकर गािंव के तमाम आिमी िौड़े तब तीनों आिमी उत्तर की तरफ
िाग गये मेरे िाई मौके पर ही मर गये है। उभचत कायावाही की जाय।
प्रािी हस्ताक्षर अशोक कुमार भमश्र अशोक कुमार भमश्र पुत्र िेवमभि
भमश्र ग्रा० हभजयापुर िाना व खारी भज० अम्बेडकरनगर भि०
9.12.99 ।

नोट- तहरीर की नकि अक्षरशः भकया गया।

 हस्ताक्षर

 एच.एम

9.12.99

 (महािेव चौहान)"

(4) On the basis of aforesaid written
report submitted by the complainant, F.I.R.
under Section 302, 504 and 506 I.P.C. was
registered vide Case Crime No.311/1999 at
14:30
hours
on
09.12.1999.
The
investigation
was
started
by
the
Investigating Officer immediately after
lodging of F.I.R. He recorded statement of
complainant in Police Station and thereafter
he reached on the spot alongwith the
complainant. He prepared inquest report
and sent the dead body for post mortem.
The Investigating Officer also prepared the
site plan, collected blood stained mud and
plain mud from the spot and on the
recovery memo, he took signatures of the
witnesses. The spade (kudal) and the
broken wooden handle (beint) of spade,
having blood stains on them, was lying
near the dead body, which was also taken
into possession by the Investigating Officer
and the recovery memo was signed by
witnesses also. After completing the
investigation, charge sheet was filed. The
F.S.L. report was also placed on record,
when the same was received.

(5) The learned Magistrate took
cognizance on the charge sheet and
committed the case to Court of Session.
The charges under Section 302 I.P.C. read
with Section 34, 504 and 506 I.P.C. were
framed
against
the
appellants.
The
appellants denied the charge and prayed for
trial, therefore, the trial proceeded.

(6) In order to prove its case, eight
witnesses
were
examined
by
the
prosecution i.e. Ashok Kumar as P.W.-1,
Dev Mani Mishra as P.W.-2, Constable
Suresh Narayan Tiwari as P.W.-3, Arvind
Pratap Singh as P.W.-4, Jiya Lal Yadav as
P.W.-5, Jairam as P.W.-6, Dr. Major V.N.
Singh as P.W.-7 and Ram Naresh Yadav as
P.W.-8. The prosecution also placed on
record
and
proved
the
documentary
evidences, which were exhibited.

(7) After conclusion of the prosecution
evidence, statement of the accused under
Section
313
Cr.P.C.
were
recorded,
wherein they admitted that two and a
quarter biswa of land on the eastern side of
their house is of Dev Mani. They also
admitted that the said land is undivided. It
has also been admitted that their chak is in
the north of chak of Dev Mani, in which
potato was sown in the western half part
and eastern half part was vacant and in
some parts, sugarcane was planted. It has
also been admitted that in the eastern half
chak of Dev Mani, there is a tube well and
the said chak is in two parts but they denied
the remaining evidence and stated that the
false evidences have been adduced. Rohini
12 All. Phool Chandra & Ors. Vs. State of U.P.
93
Kumar Pathak, Lekhpal was examined in
defence as D.W.-1, who produced the
evidence regarding possession of the chak
of the complainant and the accuseds and
their numbers.

(8) After considering the arguments
advanced by learned counsel for the parties
and evidence as well as material on record,
the impugned judgment and order of
conviction and sentence has been passed by
the learned trial Court. Hence the present
appeal has been filed.

(9) During pendency of the present
appeal, the appellant No.3; Ram Badan
died, therefore, the appeal abated on his
behalf and it was recorded in the order
dated 11.01.2019. Hence this appeal
survives on behalf of the appellant No.1;
Phool Chandra and appellant No.2; Harish
Chandra both sons of Ram Badan.

(10)
Learned
counsel
for
the
appellants submitted that the appellants
have been convicted and sentenced by
means of the impugned judgment and order
without considering the evidence and
material on record. He further submitted
that the time and place of incident is
doubtful and the conviction is based solely
on the related and interested witnesses. He
further submitted that an independent
witness, who was present at the place of
incident, has not been examined. He further
submitted
that
the
injuries
are
not
corroborated because the Kudal is a sharp
edged weapon and no injury of the sharp
edged weapon has been found and blood
stained mud was not recovered from the
spot. The motive is also not proved. The
incident has been shown to have happened
on a trivial issue, on account of which, the
offence under Section 302 I.P.C. cannot be
committed. He further submitted that even
if the case of the prosecution is taken to be
correct and the evidence adduced before
the learned trial Court is considered giving
due weight to the same, at the most the
offence under Section 304 Part II I.P.C. can
be said to have been committed as it was
not pre-meditated and may be on account
of sudden quarrel and provocation and if
this Court comes to the conclusion that the
offence has been committed by the
appellants, then the same is liable to be
converted into Section 304 Part II I.P.C.
and the sentence is liable to be reduced
accordingly.

(11) On the basis of above, learned
counsel for the appellants submitted that
the impugned judgment and order is not
sustainable in the eyes of law and the same
is liable to be set aside.

(12) Learned A.G.A. vehemently
opposed the submissions of learned counsel
for the appellants. He submitted that the
F.I.R. has been lodged promptly and delay,
if any, has been explained. He further
submitted that the contention of learned
counsel for the appellants, that the time and
place of incident is doubtful, is misconceived
and not tenable because the F.I.R. was lodged
promptly and immediately after lodging of the
F.I.R., the Investigating Officer went with the
complainant to the place of incident and found
the deceased lying in the field and also
recovered the weapon of assault etc. He further
submitted that presence of the appellants and a
tractor has also been shown in the site plan.
Tube well and the mound of drainage on the
northern side of field of complainant's side,
which was being broken, on account of which,
the incident had occurred, has also been shown
in the site plan.

(13) He further submitted that there is
no contradiction in the evidences of P.W.-1
94 INDIAN LAW REPORTS ALLAHABAD SERIES
and P.W.-2, who are the eye witnesses and
their evidences have also been corroborated
by the evidence of P.W.-4. He further
submitted that P.W.-5 and P.W.-8 have
proved the material collected from the spot
and also as to how he made the
investigation and no cross-examination has
been done from him.

(14) On the basis of above, learned
A.G.A. submitted that the contention of
learned counsel for the appellants are liable
to be repelled as the impugned judgment
and order has rightly been passed in
accordance with law and the appellants
have been convicted and sentenced. There
is no illegality or error in the impugned
judgment and order. The appeal has been
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed.

(15) We have heard learned counsel
for the parties and perused the records.

(16) A written report was submitted by
the complainant, Ashok Kumar Mishra on
09.12.1999 at Police Station Baskhari,
District
Ambedkar
Nagar,
intimating
therein that on the said date, he, his father
and his brother, namely, Ajai Kumar were
sowing wheat in their fields and a labour of
his village, namely, Ram Dular was also
present with them. The field of Phool
Chandra, Harish Chandra and Ram Badan
is adjacent to their field and they were also
working on their field at that time. Phool
Chandra started cutting their northern
mound (मेड़) of drainage, therefore, the
brother
of
complainant,
Ajai
Kumar
forbade him for doing so, on which, Ram
Badan exhorted and Phool Chandra and
Harish Chandra, hurling abuses shouted to
kill him and all the three broke on him.
Phool Chandra had beaten him with kudal
at 01:00 in the afternoon, on account of
which, he fell down and cried. When the
complainant
etc.
rushed,
the
Harish
Chandra, having country made pistol in his
hand, threatened them of killing and
opened fire and ran behind them. The
complainant etc. raising alarm ran towards
the house and on hearing the alarm, many
villagers ran but all the three accused fled
away towards the North. It was also stated
in the written complaint that his brother
died on the spot. On the basis of aforesaid
written complaint, the F.I.R. was lodged at
02:30 PM.

(17) It has been stated by P.W.-1 in his
evidence that after 20-25 minutes of the
incident, his father asked him to lodge a
report. In the cross-examination, he stated
that it was said by him at the field as they
were weeping for 10-15 minutes. He
further stated in the cross-examination that
he had not written report at the house on
account of hurry and anxiety and purchased
a paper at a crossing before the Police
Station and got written the report at a shop
of cycle. Thereafter, he went to the Police
Station, to lodge the F.I.R., on foot with
cycle. The F.I.R. of incident at 01:00 PM
was lodged at 02:30 PM at Police Station,
which was at a distance of about 04 Km.
Thus, the report has been lodged promptly
and the delay, if any, has been explained by
the complainant.

(18) P.W.-1 stated that after lodging of
the F.I.R., his statement was recorded at the
Police Station and the Inspector went
alongwith him at the spot of incident from
the Police Station. Constable Suresh
Narayan Tiwari, who appeared as P.W.-3,
has stated in his evidence that the dead
body for post mortem was received by him
from the place of incident alongwith the
inquest report etc. In cross-examination, he
stated that he went to the spot at 02:30 in
12 All. Phool Chandra & Ors. Vs. State of U.P.
95
the afternoon and when he went, Inspector
Sri
Ram
Naresh
Yadav
and
other
constables were with him. Ram Naresh
Yadav appeared as P.W.-8, who stated in
his evidence that the F.I.R. was written by
H.M. Mahadev Chauhan at Chik No.68 at
14:30 hours. He further stated that
investigation was received by him on
09.12.1999 and he recorded the statement
of complainant; Ashok Kumar in the Police
Station, thereafter, he went to the spot in
Village
Hajiyapur
alongwith
the
complainant, where he found the dead body
lying in the field and spade and it's handle
having blood on them, was lying near dead
body. He, after inspecting the dead body,
prepared the inquest report and other
relevant documents. The inquest report; Ex.
Ka-2 shows the distance of the Police
Station from the spot as 04 Km. and the
time of lodging of F.I.R. as 14:30 hours,
start time of investigation as 15:10 hours.
Thus, the inquest report indicates that
immediately after lodging of the F.I.R., the
Investigating Officer went on the spot and
prepared the inquest report.

(19) The condition of the dead body
has been mentioned in the inquest report,
which shows that there was a lot of
bleeding from the head. The Investigating
Officer, being in agreement with the
opinion of the witnesses that the deceased
has died on account of injuries suffered by
him in the head and the post mortem may
be got done, sent the dead body for post
mortem. The father of the deceased, Dev
Mani Mishra, who appeared as P.W.-2, has
proved that he signed the inquest report,
which was prepared before him as well as
Jiya lal Yadav, the Pradhan, who appeared
as P.W.-5 and he has also signed the
inquest report and proved the signatures on
the same. An independent witness, Arvind
Pratap Singh, examined as P.W.-4, has also
proved the incident and place of incident.
Nothing could be extracted from them in
cross-examination, which may create any
doubt about their testimony in this regard.
Thus, the place of incident has also been
proved, which is corroborated by the site
plan also.

(20) After inquest, the dead body was
sent for post mortem. The post mortem
report is Ex. Ka-5. According to the post
mortem report, five injuries were found,
which are as follows:-

"i) Lacerated wound 11 cm x 3
cm x bone deep on left side of head 10 cm
above Lt. ear underlying bone fractured.

ii) Traumatic swelling 9 cm x 6
cm on left side of head 2 cm above lt. ear.

iii) Contusion 2 cm x 1 cm on Rt.
Shoulder.

iv) Lacerated wound 1.5 cm x 1
cm x0.5 cm on submandibular region 3 cm
below chin.

v) Abrasion 5 cm x 0.5 cm on
dorsal aspect of lt. forearm 3 cm above Lt.
wrist joint."

It is further noticed that brain has
been shown as 'lacerated in relation to
injury' and membranes have been shows as
'lacerated and congested in relation to
injury'. Stomach and its contents were
shows as 'partially digested food 100 gms'.
The cause of death has been shown as
shock and hemorrhage as a result of ante
mortem injuries.

(21) The post mortem report and the
injuries have been proved by the P.W.-7;
Dr. Major V. N. Singh, Medical Officer,
96 INDIAN LAW REPORTS ALLAHABAD SERIES
who conducted the post mortem. He has
stated in his cross-examination that the
deceased had died in the winter season. He
has also stated that ante mortem injuries
may have been caused by two different
thick head (blunt) weapons and the
abrasion could have been caused on
account of rubbing with rough surface. He
has also stated that the death may have
been caused at about 01:00 PM on
09.12.1999.
However,
in
the
crossexamination, he has stated that there may
be difference of three hours' time on both
the sides in the time of death.

(22) P.W-1 and P.W.-2 have stated
that they went to the field alongwith others
at about 08:00 in the morning and around
10:00 AM to 11:00 AM, they had taken
breakfast, which had come from the house.
Partially digested food of 100 gms. has
been found in the stomach of the deceased,
therefore, the contention of learned counsel
for the appellants that since digested food
was found in the stomach and the doctor
has stated that there may be three hours
difference on either side, the death may
have been caused earlier and at some other
place is wrong and misconceived and not
tenable as it is in consonance with the time
of death shown by the witnesses, inquest
report, post mortem report and the evidence
of Doctor. Merely because the doctor has
stated in cross-examination that there may
be three hours difference on either side, it
cannot be said that the time of death was
earlier, when it is proved by all other
evidence including post mortem.

(23) One of the arguments of learned
counsel for the appellants was that P.W.-1
has stated that when the accuseds persons
ran away from the spot and they went near
the dead body and touched, it was not warm,
therefore, the death must have occurred much
prior to that time, whereas the death had
occurred in the winters and in open field,
therefore, it cannot be said that the death may
have been caused earlier. Even otherwise, as
per inquest, there was bleeding from the head
when the inquest was made and P.W.-8;
Investigating Officer has proved the same
and no cross-examination has been made
from him by the defence. The Investigating
Officer has also proved the recovery of the
blood stained mud and plain mud from the
spot and the blood stained kudal of iron lying
near the dead body and also wooden beint,
which have been exhibited as Exhibit Ka-3
and Ka-4.

(24) An argument was advanced on
behalf of the appellants that they had not
shown in the F.I.R. that Phool Chandra has
assaulted from the back (pasa) of kudal but
in the evidence of P.W.-1 and P.W.-2, they
have stated that the Phool Chandra had
assaulted with the back of kudal, which is
used to be an hard object and the injury
No.1 was not possible from the same,
whereas the Doctor, who appeared as P.W.-
7, has stated that the injuries may have
been caused by thick head (blunt) weapon.
No contrary evidence has been adduced
and it is settled law that F.I.R. is not an
encyclopedia
of
events,
therefore,
contention of learned counsel for the
appellants
in
this
regard
is
also
misconceived and not tenable.

(25) The F.S.L. report i.e. Ex. Ka-16
indicates that human blood was found on all
the articles i.e. kurta, baniyan and lungi.
However, disintegrated blood was found on
the blood stained mud, plain mud, underwear
and janeu, therefore, the origin could not be
determined. Thus, contention of learned
counsel for the appellants that the blood
stained mud was not recovered from the spot
is not tenable.
12 All. Phool Chandra & Ors. Vs. State of U.P.
97

(26) The F.I.R. was lodged alleging
therein that while the complainant and his
family members were sowing wheat in
their field, the accused persons were
working in their field adjacent to the field
of the complaint's side. The appellant,
Phool
Chandra
started
breaking
the
northern mound of drainage of their field
on the northern side, which was aside the
field and the vacant field of the appellants.
When the brother of the complainant; Ajai
Kumar asked him not to do the same, Ram
Badan exhorted and Harish Chandra and
Phool Chandra hurling abuses, stated that
kill him and all the three attacked on him
and Phool Chandra assaulted in his head by
the kudal. It has come in the evidence that
the Phool Chandra was assaulting from the
back side and remaining two were on the
front side. The site plan i.e. Ex. Ka-14
indicates the drainage aside the field of the
complainant and the deceased's side and the
vacant field of the accuseds in northern
side. A tube well has also been shown in
the site plan in the center of the field of the
complainant's side in the eastern side. The
places of the deceased, accuseds, witnesses
and the weapon of assault and tractor have
also been shown in the site plan. It has also
been stated by the P.W.-1 and the P.W.-2
that the accused persons ran away towards
the northern side from their field, which
has also been shown in the site plan. The
site plan was prepared on pointing of the
complainant and it has also been proved by
the Investigating Officer. The inquest
report also shows the condition of the dead
body and the place of weapon of assault,
where it was found, which is in consonance
with the site plan and evidence.

(27) In view of above, the incident,
time and place of incident, weapon of
assault, which has also been recovered,
have been proved. The ante-mortem
injuries and time of injuries have been
proved, which have corroborated the
prosecution case. Thus, the prosecution has
proved it's case, therefore, merely because
a witness, who was present at the spot, has
not been produced, it can not be said that
there is any dent in the prosecution case.
Even otherwise, an independent witness
has been examined, who supported the case
of prosecution and his testimony could not
be doubted. Thus, Yudhishtir Vs. The
State of Madhya Pradesh; 1971 (3) SCC
436, relied by learned counsel for the
appellant No.2 is not applicable on the facts
and circumstances of the case.

(28) Lastly, learned counsel for the
appellants had argued that even if the
prosecution case is found proved by this
Court, it was a case of sudden quarrel and
provocation and would fall under Section
304 Part-II I.P.C. and not under Section
302 I.P.C. as it was not premeditated
murder, therefore, the conviction and
sentence under Section 302 I.P.C. is not
sustainable and the same is liable to be
converted under Section 304 Part-II I.P.C.
with lesser sentence.

(29) The F.I.R. discloses that while the
complainant and his family members were
working in their field, the accused persons
and their family members were also
working in their field, which was adjacent
to the field of the complainant's side. In the
meantime, Phool Chandra started cutting
northern mound of drainage aside the
complainant's field to merge in his field,
which was in between their field, therefore,
the brother of the complainant Ajai Kumar,
asked him not to do the same, on which,
Ram Badan exhorted and Harish Chandra
and Phool Chandra hurling abuses, said to
kill him today, on which, all the three broke
on him and Phool Chandra hit kudal on the
98 INDIAN LAW REPORTS ALLAHABAD SERIES
head of the deceased; Ajai Kumar, on
account of which, he fell down and raised
voice, on which, the complainant's side
rushed to save him but Harish Chandra,
threatening them, opened fire from the
country made pistol and on the noise,
certain people of the village came but the
the accused persons ran away. P.W.-1 and
P.W.-2 have stated the same in their
evidence. They have also stated that they
had heard "बाता कही" i.e. quarrel on this
issue between them. Thereafter, the assault
was made. Thus, the assault was made on
account of sudden quarrel by the kudal,
which
is
an
agricultural
instrument.
Admittedly, both the sides were working in
the field, therefore, they must have the
same, therefore, it is apparent that the
incident occurred on account of sudden
quarrel due to breaking of mound of
drainage by the accused persons in heat of
passion, therefore, it cannot be said that it
was pre-meditated. Even if there was any
enmity between the parties, though it could
not be proved.

(30) In view of above, it is a case of
an incident occurred in broad day light, in
which, the deceased had suffered serious
injuries,
on
account
of
which
he
succumbed to death. Since the motive
could not be proved and it was on
account of sudden quarrel in the heat of
passion, therefore, it may be a case in
which the intention to kill may not be
there even if the accuseds knew that the
deceased may die. If the motive and
intention to kill is not proved and
apparently the case was on account of a
quarrel on spot, 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.,
which are 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-

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.

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
12 All. Phool Chandra & Ors. Vs. State of U.P.
99
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
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.

(31) In view of above, to bring a case
under Section 300 I.P.C., 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
100 INDIAN LAW REPORTS ALLAHABAD SERIES
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 elements are established
by the prosecution, the offence would be
murder under Section 300 I.P.C. and case
would fall under Section 302 I.P.C., which
is extracted below:-

"302.
Punishment
for
murder.-Whoever commits murder shall
be punished with death, or imprisonment
for life, and shall also be liable to fine."

(32) Exception 4 to Section 300
I.P.C. provides that culpable homicide is
not murder, if it is committed without
pre-meditation in a sudden fight in the
heat of passion upon a sudden quarrel
and
without
undue
advantage
by
offender and acting in a cruel and
unusual manner. The Hon'ble Supreme
Court, in the case of Mahesh Balmiki
alias Munna Vs. State of M.P.; (2000)
1 SCC 319, relied by learned A.G.A.,
has explained it in paragraph 7, which is
extracted below:-

"7. Now Exception 4 to Section
300 I.P.C, is in the following terms :

"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.

Explanation.- It is immaterial
in such cases which party offers the
provocation
or
commits
the
first
assault."

The
requirements
of
this
exception are :

(a) without premeditation in a
sudden fight;

(b) in the heat of passion upon a
sudden quarrel;

(c) the offender has not taken
undue advantage; and

(d) the offender has not acted in a
cruel or unusual manner.

Where these requirements are
satisfied, culpable homicide would not be
murder."

(33) In the aforesaid case of Mahesh
Balmiki alias Munna (Supra), the Hon'ble
Supreme Court further held that there is no
principle that in all cases of single blow
Section 302 I.P.C. is not attracted. Single
blow may, in some cases, entail conviction
under Section 302 I.P.C., in some cases
under Section 304 I.P.C and in some other
cases under Section 326 I.P.C. The
question with regard to the nature of
offence has to be determined on the facts
and in the circumstances of each case. The
paragraph 9 is extracted below:-

"9. Adverting to the contention of
a single blow, it may be pointed out that
there is no principle that in all cases of
single blow Section 302 I.P.C. is not
attracted. Single blow may, in some cases,
entail conviction under Section 302 I.P.C.,
in some cases under Section 304 I.P.C and
in some other cases under Section 326
I.P.C. The question with regard to the
nature of offence has to be determined on
the facts and in the circumstances of each
case. The nature of the injury, whether it is
12 All. Phool Chandra & Ors. Vs. State of U.P.
101
on the vital or non-vital part of the body,
the weapon used, the circumstances in
which the injury is caused and the manner
in which the injury is inflicted are all
relevant factors which may go to determine
the required intention or knowledge of the
offender and the offence committed by
him. In the instant case, the deceased was
disabled from saving himself because he
was held by the associates of the appellant
who inflicted though a single yet a fatal
blow of the description noted above. These
facts clearly establish that the appellant had
intention to kill the deceased. In any event,
he can safely be attributed knowledge that
the knife blow given by him is so
imminently dangerous that it must in all
probability cause death or such bodily
injury as is likely to cause death."

(34) The Hon'ble Supreme Court, in
the case of Litta Singh and Another Vs.
State of Rajasthan; (2015) 15 SCC 327,
has held that the intention to cause death
with the knowledge that the death will
probably be caused, is an important
consideration for coming to conclusion that
death is a murder or culpable homicide not
amounting
to
murder.
The
relevant
paragraph 24 is extracted below:-

"24. It is well settled proposition
of law that the intention to cause death with
the knowledge that the death will probably
be caused, is very important consideration
for coming to the conclusion that death is
indeed a murder with intention to cause
death or the knowledge that death will
probably be caused. From the testimonies
of the witnesses, it does not reveal that the
accused persons intended to cause death
and with that intention they started
inflicting injuries on the body of the
deceased. Even more important aspect is
that while they were beating the deceased
the witnesses reached the place and shouted
whereupon
the
accused
persons
immediately ran away instead of inflicting
more injuries with intent to kill the
deceased. "

(35) The Hon'ble Supreme Court, in
the case of Ajmal Vs. State of Kerala;
(2022) 9 SCC 766, considered distinctive
features and consideration relevant for
determining
a
culpable
homicide
amounting to murder and distinguishing it
from the culpable homicide not amounting
to murder and relevant consideration by the
Hon'ble Supreme Court in different cases.
The relevant paragraph 17 is extracted
below:-

"17. The distinctive features and
the considerations relevant for determining
a culpable homicide amounting to murder
and distinguishing it from the culpable
homicide not amounting to murder has
been a matter of debate in large number of
cases. Instead of referring to several
decisions on the point reference is being
made to a recent decision in Mohd. Rafiq v.
State of M.P. [Mohd. Rafiq v. State of
M.P., (2021) 10 SCC 706 : (2022) 1 SCC
(Cri) 116] , wherein Ravindra Bhatt, J.
speaking for the Bench, relied upon two
previous judgments [Ed. : The reference
appears to be to State of A.P. v.
Rayavarapu Punnayya, (1976) 4 SCC 382 :
1976 SCC (Cri) 659; Pulicherla Nagaraju v.
State of A.P., (2006) 11 SCC 444 : (2007)
1 SCC (Cri) 500] dealing with the issue as
narrated in paras 11, 12 and 13 of the
Report which are reproduced below : (SCC
pp. 711-15)

"11. The question of whether in a
given
case,
a
homicide
is
murder
punishable under Section 302IPC, or
culpable homicide, of either description,
102 INDIAN LAW REPORTS ALLAHABAD SERIES
punishable under Section 304IPC has
engaged the attention of courts in this
country for over one-and-a-half century,
since the enactment of IPC; a welter of case
law, on this aspect exists, including perhaps
several hundred rulings by this Court.