# Prakash v. State

- **Citation:** (2021) 11 ILRA 509
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-27
- **Case number:** Jail Appeal No. 315 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-v-state-46594
- **Pages:** 7

## Headnote

(A) Criminal Law - - Indian Penal Code, 1860 -
Sections 302, 323, 324 & 299 - Appeal from
jail - Culpable homicide, Section 300 - murder ,
Section 304 - culpable homicide not amounting
to murder - testimony of hostile witnesses
cannot be thrown away merely on the ground
of being hostile - can be relied on to the extent,
it supports the prosecution case - person can
tell a lie, but not the circumstances. (Para -
12,18)

Appellant used spade to attack deceased from
reverse-side - sustained two injuries of contusion - no
injury of incised wound - spade was used from
reverse side - no intention to kill the deceased -
knowledge that act was likely to cause death -
deceased died due to excess bleeding of internal
injuries - three witnesses of fact - complainant and
eye-witness of the occurrence (PW1), injured (PW2)
and daughter of the accused (PW3) - turned hostile
.(Para -12, 25)

HELD:-Instant case false under the Exceptions 1 and
4 to Section 300 IPC . Appellant is guilty for
commission of the offence under Section 304 (Part-I)
IPC instead of offence under Section 302 IPC along
with other offences punishable under Sections 323
and 324 IPC . (Para - 27,28,29)

Jail appeal partly allowed. (E-7)

List of Cases cited:-

## Text

11 All. Prakash Vs. State
509
Rs. 2,000/- be imposed instead of sending him to
jail.

19. Accused-appellant is directed to
deposit the fine of Rs. 2,000/- before learned
lower court within three months from the date of
passing of the judgement and in default of
payment of fine accused-appellant shall further
undergo fifteen days imprisonment.

20. Appeal is partly allowed in the above
terms.

21. Copy of this order be transmitted to the
concerned lower court forthwith for compliance
----------
(2021)11ILR A509
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.10.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Jail Appeal No. 315 of 2013

Prakash ...Appellant
Versus
State ...Respondent

Counsel for the Appellant:
From
Jail,
Shweta
Pandey,
Sri
Sweta
Pandey,A.C.

Counsel for the Respondent:
A.G.A.

(A) Criminal Law - - Indian Penal Code, 1860 -
Sections 302, 323, 324 & 299 - Appeal from
jail - Culpable homicide, Section 300 - murder ,
Section 304 - culpable homicide not amounting
to murder - testimony of hostile witnesses
cannot be thrown away merely on the ground
of being hostile - can be relied on to the extent,
it supports the prosecution case - person can
tell a lie, but not the circumstances. (Para -
12,18)

Appellant used spade to attack deceased from
reverse-side - sustained two injuries of contusion - no
injury of incised wound - spade was used from
reverse side - no intention to kill the deceased -
knowledge that act was likely to cause death -
deceased died due to excess bleeding of internal
injuries - three witnesses of fact - complainant and
eye-witness of the occurrence (PW1), injured (PW2)
and daughter of the accused (PW3) - turned hostile
.(Para -12, 25)

HELD:-Instant case false under the Exceptions 1 and
4 to Section 300 IPC . Appellant is guilty for
commission of the offence under Section 304 (Part-I)
IPC instead of offence under Section 302 IPC along
with other offences punishable under Sections 323
and 324 IPC . (Para - 27,28,29)

Jail appeal partly allowed. (E-7)

List of Cases cited:-

1. Koli Lakhmanbhai Chandabhai Vs St. Of Guj.,
(1999) 8 SCC 624

2. Ramesh Harijan Vs St. Of U.P., (2012) 5 SCC 777

3. St. of U.P. Vs Ramesh Prasad Mishra & anr. ,1996
AIR (Supreme Court) 2766

4. St. of U.P. Vs Mohd. Iqram & anr., (2011) 8 SCC 80

5. Tuka Ram & ors. Vs St. of Mah., (2011) 4 SCC 250

6. BN Kavadakar & anr. Vs St. of Karn., 1994 Supp
(1) 304

(Delivered by Hon'ble Ajai Tyagi, J.)

1. This appeal has been preferred by the
appellant-Prakash against the judgment and
order dated 16.2.2008, passed by Additional
Sessions Judge, Court No.9, Kanpur Dehat, in
Session Trial No.87 of 2007 (State vs. Prakash)
arising out of Case Crime No.678 of 2006 under
Section 302, 323, 324 IPC, Police StationGhatampur, District-Kanpur Nagar, whereby the
accused was convicted and awarded sentence
510 INDIAN LAW REPORTS ALLAHABAD SERIES
under Section 302 IPC for life imprisonment and
fine of Rs.10,000/-. He was directed to undergo
further imprisonment for one year, in case of
default of fine. The appellant was further
convicted and sentenced under Section 323 IPC
for six months RI and further convicted and
sentenced under Section 324 IPC for one year
RI. All sentences were directed to run
concurrently.

2. The facts giving rise to this appeal are
that complainant-Ram Khelawan submitted
written-report at Police Station-Ghatampur,
District-Kanpur Nagar, stating therein that on
18.12.2006, his elder brother Prakash was going
to the brick-kiln of Jawahar with his wife
Phoolkali (aged about 40 years) and children. He
was milching his buffalo. At about 10:40 in the
morning, he heard the noise of screaming from
the side of field of pradhan Ramesh Yadav. On
hearing the screaming, he and his cousin
(brother), Shiv Raj s/o Bheekkhu, ran towards
that direction and saw that Prakash was
attacking on his own wife-Phoolkali with spade.
They anyhow saved both the children, during
which, Shiv Raj and daughter of Prakash,
namely, Goldi (aged about 6 years), also
sustained injuries. So many people of village
gathered on the spot, but Prakash fled way. He
brought injured Phoolkali for treatment, but she
died.

3. A case crime bearing No.678 of 2006
was registered at police station under Sections
302 and 323 IPC. Investigation was taken up by
SI-Badam Singh. Investigating Officer recorded
statements of witnesses, prepared site-plan,
collected plain and blood-stained earth. Inquest
report was also prepared. Postmortem was
conducted on the body of deceased by Dr.Autar
Singh and postmortem report was prepared. In
the postmortem, cause of death was ascertained
as excess bleeding from antemortem injuries.
Injured Shiv Raj and Kumari Goldi were also
medically examined and their injury reports
were also prepared by Dr.Vinod Kumar Mishra.
During
the
course
of
investigation,
the
Investigating Officer arrested the accusedPrakash and on his pointing out made recovery
of spade, which was said to be used in
commission of crime. After completing the
investigation,
charge-sheet
was
submitted
against
accused
appellant-Prakash
under
Sections 302, 324 and 323 IPC. The case being
exclusively triable by court of session was
committed to the court of session for trial.

4. Learned trial court framed charges
against appellant under Sections 302, 324 and
323 IPC. Charges were read over to the accused,
who denied the charges and claimed to be tried.

5. To bring home the charges, following
witnesses were examined by the prosecution:

1.
Ram Khilawan
PW1
2.
Shiv Raj
PW2
3.
Waheed Ahmad
PW3
4.
Dr.Vinod Kumar Misra
PW4
5.
Dr.Autar Singh
PW5
6.
Silta
PW6
7.
Mola
PW7
8.
Badan Singh
PW8
9.
Raj Kumar
PW9

6. Apart from oral evidence, following
documentary evidence were produced by
prosecution and proved by leading the evidence:

1.
F.I.R.
Ex. Ka2
2.
Written report
Ex. Ka1
3.
Recovery-memo
of
blood-stained and plainearth
Ex. Ka9
11 All. Prakash Vs. State
511
4.
Recovery-memo
of
spade
Ex. Ka10
5.
Injury report
Ex. Ka4
6.
Injury report
Ex. Ka5
7.
Postmortem report
Ex. Ka6
8.
Panchayatnama
Ex. Ka11
9.
Charge-sheet Mool
Ex. Ka16
10.
Site-plan with Index
Ex. Ka7
11.
Site-plan with Index
Ex. Ka18

7. Accused-appellant was examined under
Section 313 Cr.P.C. and evidence led by
prosecution against him was put to him.
Accused stated that false evidence has been led
against him. Accused did not examine any
witness in his defence.

8. We have heard Ms.Shweta Pandey,
learned Amicus Curiae appearing for the
appellant, learned AGA for the State and
perused the record.

9. Learned counsel for the appellant
submitted that appellant has been falsely
implicated in this case. He is innocent. It is
strongly argued that all the prosecution
witnesses of fact have turned hostile. No
witness has supported the prosecution case. It
is also submitted that antemortem injuries,
shown in postmortem report, were not
sufficient to cause death of the deceased. It is
next submitted that appellant was not arrested
on the spot and prosecution could not establish
any motive to commit the crime by appellant.
Deceased was wife of appellant and nothing is
brought forward by prosecution as to why the
appellant would have killed his own wife.
Motive is absolutely silent. She also argued
that false recovery of spade is made by
Investigating
Officer
to
strengthen
the
prosecution case and recovered spade is in fact
planted by the police. Appellant is languishing
in jail for more than 14 years.

10. Per contra, learned AGA submitted
that appellant is named in FIR as single
accused and it is very important to note that
the FIR of this case was lodged by appellant's
real younger brother. It is next submitted that
first information report was lodged very
promptly nearly about two hours after the
occurrence. Therefore, there was no reason for
false implication of the appellant. It is also
very important to note that first information
report is lodged by younger brother of accused
and there is nothing on record that there was
any sort of enmity between these two brothers.
Learned AGA further submitted that the
spade, which was used in commission of
crime, was recovered by Investigating Officer
on the pointing out of the appellant. It is also
argued that antemortem injuries found in
postmortem, could be inflicted to the deceased
with the weapon/instrument like spade, if it is
used from reverse-side. In this way, medical
evidence also corroborates the prosecution
version. Lastly, it is submitted by learned
AGA that no doubt, witnesses of fact have
turned hostile, but they have become hostile
due to being close relative, i.e., brother and
daughter etc., therefore, to save the accused
from punishment, witnesses have turned
hostile, but learned trial court has rightly
appreciated the evidence on record and
convicted the accused.

11. It is contended by the defence that
prosecution could not establish the motive of
crime, but this is the case of direct evidence and
in case of direct evidence, motive losses
importance. Hence, absence of motive does not
affect the prosecution case adversely.

12. Perusal of the record shows that in this
case, prosecution has produced three witnesses
of fact, namely, Ram Khelawan, who is
512 INDIAN LAW REPORTS ALLAHABAD SERIES
complainant and eye-witness of the occurrence
(PW1), Shiv Raj, injured (PW2) and Silta, the
daughter of the accused (PW3). All these three
witnesses have turned hostile. In such a
situation, heavy duty has been cast upon us to
scrutinize the evidence of PW1, PW2 and PW3.
It is settled law that testimony of hostile
witnesses cannot be thrown away merely on the
ground of being hostile. The testimony of hostile
witnesses can be relied on to the extent, it
supports the prosecution case.

13.

Hon'ble
Apex Court in
Koli
Lakhmanbhai Chandabhai vs. State of Gujarat
[(1999) 8 SCC 624] has held that evidence of
hostile witness can be relied upon to the extent it
supports the version of prosecution and it is not
necessary that it should be relied upon or
rejected as a whole. It is settled law that
evidence of hostile witness also can be relied
upon to the extent to which it supports the
prosecution version. Evidence of such witness
cannot be treated as washed off the record. It
remains admissible in the trial and there is no
legal bar to base his conviction upon his
testimony if corroborated by other reliable
evidence.

14. In Ramesh Harijan vs. State of UP
[(2012) 5 SCC 777, Hon'ble Supreme Court has
also held that it is settled legal position that the
evidence of a prosecution witness cannot be
rejected in toto merely because the prosecution
chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be
treated as effaced or washed off the record
altogether.

15. In State of UP vs. Ramesh Prasad
Mishra and another [1996 AIR (Supreme
Court) 2766], Hon'ble Apex Court held that
evidence of a hostile witnesses would not totally
rejected if spoken in favour of the prosecution or
the accused, but required to be subjected to close
scrutiny and that portion of the evidence which
is consistent with the case of the prosecution or
defence can be relied upon. Thus, the law can be
summarized to the effect that evidence of a
hostile witness cannot be discarded as a whole
and relevant part thereof, which are admissible
in law, can be used by prosecution or the
defence.

16. We have scrutinized the evidence of
hostile witnesses very meticulously and have
also gone through the findings recorded by
learned Trial Judge.

17. First information report was very
promptly lodged at police station just after two
hours of incident, in which the complainant
named appellant-Prakash and he was single
accused named in the FIR. There is no reason to
falsely implicate the appellant by his real
brother. Ram Khelawan (PW1) although has
turned hostile, but in examination-in-chief, he
has stated that written-report was written by Raj
Kumar, but he had written it on his dictation.
Although, he has further stated that it was not
read over to him, but this statement cannot be
believed in the light of evidence of scribe. The
scribe of first information report Raj Kumar has
been produced as PW9. He has stated in his
examination-in-chief that report of occurrence
was written by him on the dictation of Ram
Khelawan and he had written verbatim whatever
was dictated by him. In his cross-examination,
PW9 has stated that he had written above report
at police chauki on the dictation of policeinspector. Learned trial court has very well
scrutinized the factum of writing of first
information report and came to the conclusion
that it is clear that first information report was
written by Raj Kumar on the dictation of
complainant-Ram Khelawan (PW1). At the cost
of repetition, it is very pertinent to mention that
there is no reason on record for false implication
of accused-appellant by his real brother. More
importantly, appellant is named in the FIR as
single accused. Hence, it transpires that PW1
11 All. Prakash Vs. State
513
was the eye-witness of the incident. That is why
he has named his brother Prakash in the FIR and
at the time of deposition before learned trial
court, he turned hostile to save him.

18. Shiv Raj (PW2) is cousin of
complainant. It is said that on hearing the
screaming, he also ran towards the place of
occurrence. His presence is also proved on the
spot because he sustained injuries as it is said in
the first information report that Shiv Raj
sustained injuries while trying to save the
deceased. Medical examination of injuries of
this witness was conducted by Dr.Vinod Kumar
Mishra (PW4). He has stated in his statement
that there was lacerated wound of size 2.0 cm x
0.8 cm, which was muscle deep on the left side
of scull. The doctor has opined that this injury
could be inflicted by hard and blunt object.
Injury report of this witness is proved as Ex.ka5.
Although, Shiv Raj (PW2) has also turned
hostile, but injury sustained by him shows that
he was present at the place of occurrence and as
stated in the FIR, he sustained injury while
trying to save the deceased from the clutches of
accused-appellant. The same case goes with the
daughter of appellant, namely, Kumari Goldi.
Unfortunately, Kumari Goldi died before she
could depose. In this way, the injuries of above
injured persons established the fact that the
incident, as alleged in the FIR, took place and
while trying to save the deceased from the attack
of appellant, they sustained injuries. Although,
Shiv Raj (PW2) has stated that he got injury by
falling, but this statement cannot be believed in
view of the above circumstances. Learned trial
court has rightly opined that a person can tell a
lie, but not the circumstances.

19. We are convinced that learned trial
court has rightly held that inquest report was
prepared and punch gave opinion that deceased
Phoolkali died due to inflicting the injuries with
spade by Prakash. Complainant-Ram Khelawan
has also signed the inquest report and Bhola has
also signed, who is the witness of recovery of
spade. This witness, namely, Bhola is produced
as PW7 and has stated that police called him at
police chauki and sought his thumb impression
on a plain paper. He has denied recovery of
spade in his presence, but in this way, however,
he has admitted his thumb impression on
recovery memo. Learned trial court has very
rightly appreciated the fact that there is no
signature or thumb impression of accusedPrakash on inquest report. It shows that accused
appellant was not present at the time of
preparation of inquest report of the deceased
while deceased was his wife. His real brother
Ram Khelawan, the complainant and Bhola
(PW7), etc., were present, but accused was not
present; meaning thereby that he had fled away
from there. It is very strong circumstance against
the appellant.

20. The finding of fact regarding the
presence of witnesses at the place of occurrence
cannot be faulted with. Death of deceased was a
homicidal death. The fact that it was a homicidal
death takes this Court to most vexed question
whether it would fall within the four-corners of
murder or culpable homicide not amounting to
murder. Therefore, we are considering the
question whether it would be a murder or
culpable homicide not amounting to murder and
punishable under Section 304 IPC. Accused is in
jail for the last more than 14 years.

21. In State of Uttar Pradesh vs. Mohd.
Iqram and another, [(2011) 8 SCC 80], the
Apex Court has made the following observations
in paragraph 26, therein:

"26. Once the prosecution has brought
home the evidence of the presence of the
accused at the scene of the crime, then the onus
stood shifted on the defence to have broughtforth suggestions as to what could have brought
them to the spot in the dead of night. The
accused were apprehended and, therefore, they
514 INDIAN LAW REPORTS ALLAHABAD SERIES
were under an obligation to rebut this burden
discharged by the prosecution and having failed
to do so, the trial-court was justified in
recording its findings on this issue. The High
Court committed an error by concluding that the
prosecution had failed to discharge its burden.
Thus, the judgment proceeds on a surmise that
renders it unsustainable."

22. Considering the evidence of these
witnesses and also considering the medical
evidence including postmortem report, there is
no doubt left in our mind about the guilt of the
present appellants. However, the question which
falls for our consideration is whether on
reappraisal
of
the
peculiar
facts
and
circumstances of the case, the conviction of the
appellant under Section 302 IPC should be
upheld or the conviction deserves to be
converted under Section 304 (Part-I) or (Part-II)
of the Indian Penal Code. It would be relevant to
refer Section 299 of the Indian Penal Code,
which reads as 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."

23. The academic distinction between
'murder' and 'culpable homicide not amounting
to murder' has always vexed the Courts. The
confusion is caused, if Courts losing sight of the
true scope and meaning of the terms used by the
legislature in these sections, allow themselves to
be drawn into minute abstractions. The safest
way of approach to the interpretation and
application of these provisions seems to be to
keep in focus the keywords used in the various
clauses of Sections 299 and 300 IPC. The
following comparative table will be helpful in
appreciating the points of distinction between
the two offences.

Section 299
Section 300
A person commits
culpable homicide if
the act by which the
death is caused is
done.
Subject
to
certain
exceptions,
culpable
homicide is murder is the
act by which the death is
caused is done.

INTENTION
(a) with the intention
of causing death; or
(1) with the intention of
causing death; or
(b) with the intention
of
causing
such
bodily injury as is
likely to cause death;
or
(2) 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;

KNOWLEDGE
KNOWLEDGE
(c)
with
the
knowledge that the
act is likely to cause
death.
(4) with the knowledge
that
the
act
is
so
immediately
dangerous
that
it
must
in
all
probability cause death or
such bodily injury as is
likely to cause death, and
without any excuse for
incurring
the
risk
of
causing death or such
injury as is mentioned
above.

24. In the case in hand, the postmortem of
deceased-Phoolkali was conducted by Dr.Autar
Singh, who has produced before trial court as
PW5. According to postmortem report, the
deceased sustained following antemortem injuries:
11 All. Mahabir & Ors. Vs. State of U.P.
515

(a) contusion on back at level of T-6 to
T-12 about 15 cm x 9 cm.

(b) contusion on the right-side of back
at level of T-10 to T-2 about 5 cm x 4 cm.

(c) abrasion on post aspect of right
thigh near right knee joint about 2 cm x 1 cm.

25. In the internal-examination on the body
of the deceased, the spinal cord and ribs were
found fractured. Right lung and liver also found
injured. The doctor opined that deceased died
due to excess bleeding from antemortem
injuries. Therefore, it is established that
deceased died due to excess bleeding of internal
injuries sustained by her. Having analyzed the
antemortem injuries, we have reached to the
conclusion that appellant used the spade to
attack the deceased from reverse-side because
deceased sustained two injuries of contusion.
There is no injury of incised wound. Hence,
spade was used from reverse side, which shows
that appellant was not having any intention to
kill the deceased, but certainly he had
knowledge that his act was likely to cause death.

26. O n overall scrutiny of the facts and
circumstances of the case coupled with the
opinion of the medical officer and considering
the principle laid down by the Hon'ble Apex
Court in the case of Tuka Ram and others vs.
State of Maharashtra [(2011) 4 SCC 250] and
in the case of BN Kavadakar and another vs.
State of Karnataka [1994 Supp (1) 304], we are
of the considered opinion that the offence would
be punishable under Section 304 (Part-I) IPC.

27. From the upshot of the aforesaid
discussion, it appears that the death caused by
the accused was not intended and the injuries
were though sufficient in the ordinary course of
nature to have caused death, the accused had no
intention to cause death, therefore, the instant
case false under the Exceptions 1 and 4 to
Section 300 IPC.

28. In the light of the foregoing
discussions, the appeal is liable to be allowed in
part. Appellant is held guilty for commission of
the offence under Section 304 (Part-I) IPC
instead of offence under Section 302 IPC along
with other offences punishable under Sections
323 and 324 IPC.

29. Hence, the conviction and sentence
awarded to the appellant for the offence under
Section 302 IPC is converted into the offence
under Section 304 (Part-I) IPC and appellant is
sentenced under Section 304 (Part-I) IPC for 14
years rigorous imprisonment and fine of
Rs.5,000/-. The appellant shall undergo further
simple imprisonment for one year in case of
default of fine. Sentence awarded under Sections
323 & 324 IPC shall remain intact. All the
Sentences shall run concurrently.

30. Accordingly, the appeal is partly
allowed, as modified above.
----------

(2021)11ILR A515
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 530 of 1982

Mahabir & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri C.S. Saran, Sri Amar Saran, Sri Devendra
Swaroop, Sri Sikandar B. Kochar