# Rahul v. State of U.P

- **Citation:** (2023) 10 ILRA 656
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-19
- **Case number:** J. Criminal Appeal No. 1185 of 2019
- **Bench:** Attau Rahman Masoodi, Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rahul-v-state-of-u-p-49500
- **Pages:** 20

## Headnote

Criminal Law -Indian Penal Code, 1860 -
Sections 299, 300, 302, 304, 307/34, 323,
354 & 452 - Arms Act, 1959 - Section 4/25
- Culpable Homicide Vs Murder - Joint
Liability - House Trespass - Outraging
Modesty - Criminal Appeal Criminal Appeal
No. 1185 of 2019 against the judgment of the
Sessions Judge, Lucknow, dated 30.04.2019,
convicting the appellant under Sections 452,
354, 307/34, 302/34 IPC, and Section 4/25
Arms Act for an incident on 19.07.2011, where
the appellant and co-accused (juvenile) entered
the informant's house, molested his sister (PW2), and attacked her and her mother (deceased)
with a knife, resulting in the mother's death due
to septicemia after 12 days. The High Court
found no premeditation, as the incident arose
from
a
sudden
quarrel
over
marriage
discussions, and the appellant's role was limited
to holding PW-2, with injuries caused by the coaccused. Conviction under Section 302/34 IPC
altered to Section 304 Part I IPC (culpable
homicide not amounting to murder) due to lack
of intent to kill, supported by Atul Thakur and
Veeran. Conviction under Section 307/34 IPC
modified to Section 323 IPC, as injuries to PW-2
were simple. Section 452 IPC conviction set
aside, as entry was not forcible or with criminal
intent. Convictions under Section 354 IPC and
Section 4/25 Arms Act upheld, as unchallenged
evidence proved molestation and knife recovery.
Sentence
reduced
to
time
served
(since
19.07.2011), with fines to be deposited within
30 days.

Appeal partly allowed.

Case Law Cited:

## Text

_Characters 0–39,816 of 64,086. This is a partial read: ask again with offset=39816 for what follows._

656 INDIAN LAW REPORTS ALLAHABAD SERIES
the order from the official website of High
Court
Allahabad
and shall make a
declaration of such verification in writing.
----------
(2023) 10 ILRA 656
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 19.10.2023

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE UMESH CHANDRA SHARMA,
J.

Criminal Appeal No. 1185 of 2019

Rahul ...Appellant
Versus
State of U.P.. ...Respondent

Counsel for the Appellant:
Shyam Kinkar Pandey, Atul Verma, Hari Krishna
Verma,
Himanshu
Tiwari,
Rajesh
Kumar,
Rajeshwar

Counsel for the Respondents:
G.A.

Criminal Law -Indian Penal Code, 1860 -
Sections 299, 300, 302, 304, 307/34, 323,
354 & 452 - Arms Act, 1959 - Section 4/25
- Culpable Homicide Vs Murder - Joint
Liability - House Trespass - Outraging
Modesty - Criminal Appeal Criminal Appeal
No. 1185 of 2019 against the judgment of the
Sessions Judge, Lucknow, dated 30.04.2019,
convicting the appellant under Sections 452,
354, 307/34, 302/34 IPC, and Section 4/25
Arms Act for an incident on 19.07.2011, where
the appellant and co-accused (juvenile) entered
the informant's house, molested his sister (PW2), and attacked her and her mother (deceased)
with a knife, resulting in the mother's death due
to septicemia after 12 days. The High Court
found no premeditation, as the incident arose
from
a
sudden
quarrel
over
marriage
discussions, and the appellant's role was limited
to holding PW-2, with injuries caused by the coaccused. Conviction under Section 302/34 IPC
altered to Section 304 Part I IPC (culpable
homicide not amounting to murder) due to lack
of intent to kill, supported by Atul Thakur and
Veeran. Conviction under Section 307/34 IPC
modified to Section 323 IPC, as injuries to PW-2
were simple. Section 452 IPC conviction set
aside, as entry was not forcible or with criminal
intent. Convictions under Section 354 IPC and
Section 4/25 Arms Act upheld, as unchallenged
evidence proved molestation and knife recovery.
Sentence
reduced
to
time
served
(since
19.07.2011), with fines to be deposited within
30 days.

Appeal partly allowed.

Case Law Cited:

1. Nand Kishore Vs St. of MP, (2011) 4 CrLJ
4243 (SC) (Para 51)

2. Lallan Rai Vs St. of Bihar, (2003) 1 SCC 268
(Para 52)

3. Pyarelal Vs St. of UP, AIR 1987 SC 852 (Para
53)

4. Mahesh Vs St. of MP, AIR 2012 SC 2172 (Para
54)

5. Chhotu Vs St. of Mah., AIR 1997 SC 3501
(Para 55)

6. Atul Thakur Vs St. of H.P., (2018) 2 SCC 496
(Para 67)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

(1) Heard Sri Atul Verma, learned
counsel
for
the
appellant,
learned
Additional Government Advocate for the
State and perused the record.

(2) This appeal has been preferred by
the appellant against the order passed by
the
Sessions
Judge,
Lucknow
dated
30.04.2019 in Sessions Trial No. 215 of
2012 (State Vs. Rahul) arising out of Case
Crime No. 219 of 2011, under Sections
354, 452, 307, 302 IPC, Police Station
10 All. Rahul Vs. State of U.P.
657
Wazirganj, District Lucknow whereby the
appellant has been convicted under Section
452 IPC, 307/34 IPC, 354 IPC, 307/34 IPC,
302/34 IPC and Section 4/25 Arms Act.
The appellant has been sentenced to
undergo four years imprisonment and
alongwith fine of Rs.1,000/- under Section
452 IPC; one year imprisonment and
alongwith payment of fine of Rs.1,000/-
under Section 354 IPC, five years rigorous
imprisonment alongwith fine of Rs. 2,000/-
under Section 307/34 IPC and life
imprisonment alongwith fine of Rs.2,000/-
under Section 302/34 IPC with default
stipulation. Under Sections 4/25 Arms Act
he has been sentenced to undergo one year
imprisonment alongwith fine of Rs.1,000/-
with default stipulation. It was also directed
that the period already spent under
incarceration would be adjusted in the
ultimate sentence and all the sentences
shall run concurrently.

(3) In brief, facts of the case are that
the informant Jitendra lodged an FIR
alleging that on 19.07.2011 at about 02:15
p.m. when his sister Kumari Santoshi and
mother Smt. Savitri Devi were in the house,
Rahul (the appellant) and Bablu @ Anand
resident of Lukarganj, Police Station
Khuldabad, Allahabad entered his house
and started molesting his sister and when it
was opposed by his mother, Rahul attacked
his sister Santoshi and Bablu attacked his
mother Savitri Devi with an intention to kill
her with the knife. On commotion when the
informant and neighbours reached, they
escaped from the spot. Both these accused
used to visit his house 2-3 times and used
to talk with his sister on mobile prior to the
incident and therefore the complainant
knew them very well. As a result of the
sudden attack blood started oozing from the
neck of his mother and was serious. His
sister also sustained injuries. He had
admitted his injured mother at Trauma
Center. Complaint was reduced in writing
by Narsingh Sengar for lodging of FIR and
necessary action.

(4) On the basis of written complaint
of the informant, a case under Section 354,
452, 307 IPC was lodged at Crime No. 219
of 2011 against the accused Rahul and
Bablu. The Investigating Officer (IO)
started investigation and prepared the site
plan. During the course of treatment Smt.
Savitri Devi died. After recording the
statements of the witnesses and collecting
the evidence, a charge sheet under Sections
354, 452, 307, 302 IPC was submitted to
the Court concerned. During the trial, coaccused Bablu was declared to be juvenile.
Hence, his case was segregated and tried
separately. A charge under Sections 354,
452, 307/34, 302/34 IPC was framed
against the accused Rahul who denied the
charge and sought for trial.

(5)

Prosecution
has
examined
following witnesses:-

1
PW-1 Jitendra, informant
2
PW-2 Kumar Santoshi
3
PW-3 Dr. Shiv Shankar Singh
4
PW-4 Dr. Sunil Kumar Yadav
5
PW-5 SI Dharmveer Saroj
6
PW-6 SSI Manoj Kumar Pathak
7
PW-7 SI Pankaj Singh
8
PW-8 SI Adarsh Kumar Singh
9
PW-9 Constable Vachan Singh
10 PWHead
Constable
Adarsh
658 INDIAN LAW REPORTS ALLAHABAD SERIES
10
Kumar
11 PW11
Dr. Avanish Kumar

(6) Following documentary evidences
have been adduced by the prosecution:-

1
Ex.Ka-1
 Written complaint
2
Ex.Ka-2
Injury report of Santoshi
3
Ex.Ka-3
Post mortem report of the
dead
body
of
the
deceased
4
Ex.Ka-4
Inquest report
5
Ex.Ka-5
Police Form-13
6
Ex.Ka-6
Police Form-33
7
Ex.Ka-7
Photonash
8
Ex.Ka-8
Map
9
Ex.Ka-9
Recovery memo of blood
stained and plain soil
10 Ex.Ka-10 Recover memo of knife
11 Ex.Ka11A
Chik FIR under Section
4/25 Arms Act
12 Ex.Ka-12 Charge
sheet
under
Section 4/25 Arms Act
13 Ex.Ka12A
Kaymi GD of case under
Section 4/25 Arms Act
14 Ex.Ka-13 Charge sheet
15 Ex.Ka-14 Chik
FIR
of
Crime
No.219 of 2011, under
Sections 354, 452, 307
IPC
16 Ex.Ka-15 Kaymi GD of case under
Section 354, 452, 307
IPC
17 Ex.Ka-16 Injury report of Smt.
Savitri Devi (before her
death)
18 M.Ex.1
Truss of the blood stained
and plain soil
19 M.Ex.2
Cloth truss with regard to
the knife
20 M.Ex.3
Paper wrapped over the
knife
21 M.Ex.4
Knife
22 M.Ex.5
Box with regard to plain
soil
23 M.Ex.6
Box with regard to blood
stained soil

(7) After closure of evidence,
statement of accused Rahul was recorded in
which he denied the charge and allegations
levelled against him and stated himself to
be innocent.

(8) In defence following witnesses
have been produced by the appellant:-

1 DW-1 Sunil Kumar Pal
2 DW-2 Sangeet Kumar
3 DW-3 Mamta sister of the accused
10 All. Rahul Vs. State of U.P.
659

Grounds of Appeal

(9) The appellant had taken grounds
that: (i) the learned Sessions Judge did not
consider the evidence led by the defence as
well
as
prosecution;
(ii)
there
are
contradictions in the evidence of witnesses
but the same has not been considered by
the trial court and the appellant has been
convicted without considering the factual
and legal aspects of the case; (iii) there was
no motive of the appellant to kill the
deceased which was also proved from the
statement of PW-2 and this aspect has not
been considered by the trial court; (iv) PW2 has admitted that the appellant was
known to her and he used to come to her
home and there was no previous enmity
between the appellant and the deceased as
well as PW-2; and (v) it was a case of
sudden provocation between the accused
and PW-2.

(10) In the cross-examination PW-2
has deposed that the appellant had caught
hold of her and co-accused Bablu had
assaulted and injured her as well as her
mother (deceased). There was neither any
motive to quarrel with PW-2 and her
mother nor to kill the deceased, therefore,
there was no occasion to convict the
appellant. Before recording statement of
the deceased, Smt. Savitri Devi, no medical
opinion was obtained as to whether the
deceased was in a position to give
statement under Section 161 CrPC or not.
The knife by which injuries are said to have
been caused was of domestic use and the
incident occurred as a consequence of
sudden quarrel. The knife was sent to the
FSL as also the blood sample collected by
the IO. The blood on the knife does not
match with the blood stained in soil as per
the forensic report. This important aspect
has not been considered by the trial court.

(11) The co-accused Bablu has been
declared juvenile by the Juvenile Justice
Board, Lucknow and his case has been
separated.

(12) The size/depth of the injuries
sustained by the deceased has not been
mentioned in the Medical Report and the
cause of death has been shown as
septicemia on which basis the impugned
judgment and order ought to have not been
passed. The trial Court has failed to
consider the observations made by the
Apex Court and as well as the High Court
in a number of cases.

(13) The appellant is an orphan and a
youngster. He is behind the bars since
19.07.2011 and has never flouted the rules
and regulations of the Jail Manual. There
was no ulterior motive to kill the deceased.
The trial court has not applied its judicial
mind and the conclusion arrived at is
therefore, illegal, erroneous and bad in law
in the given facts and circumstances of the
case. The findings of the trial court are
merely
based
on
conjunctures
and
surmises. In the background of aforesaid
submissions, learned counsel for the
appellant has submitted that the appeal
deserves to be allowed and order of
conviction and sentence be set aside.

Brief discussion on statements of
prosecution witnesses

(14) PW-1, Jitendra has deposed that
on 19.07.2011 at about 02:15 p.m. when his
sister Kumari Santoshi and his mother were
in his house, accused Rahul and Bablu
residents of Allahabad entered the house
and started molesting his sister. When his
mother resisted the move of Rahul (the
appellant), who attacked his sister and
Bablu attacked his mother with knife with
660 INDIAN LAW REPORTS ALLAHABAD SERIES
the
intention
to
kill.
On
hearing
commotion, he and the neighbours reached
there. Bablu succeeded in escaping from
the spot while pushing him. He caught hold
of Rahul but when he was taking his
mother to the hospital, Rahul also managed
to escape from his clutches, who was latter
arrested by the police.

(15) The injury caused on the neck of
his mother was bleeding profusely and her
condition was critical and that his sister
was also injured. He took his mother and
sister to the hospital and also got the report
of the incident written by Narsingh Sengar
on his narration. He recognized his
signature and proved the written complaint
Ex.Ka-1. Both the accused were known to
him as he had met with them earlier as they
had already visited his house. After about
12 days his mother died. Police prepared
the panchnama and got signed by him also.
Therefore, post-mortem was performed and
thereafter it was provided to him. They
conducted the last rituals of his mother. The
Inspector had asked about the incident and
then he informed the same facts to him as
were deposed before the court. Doctor had
also taken statement of his mother before
him.

(16) In cross-examination the witness
withstood his statement as deposed in
examination-in-chief. In addition to that he
admitted that there was no conversation
about the incident between him and his
sister. He has also admitted that when the
accused ran away from the spot, he had
reached there and had taken his mother to
Trauma Centre of Medical College. He has
also admitted that even before the incident
these two accused used to visit his house
and he had met with them 2-3 times. There
was no enmity between the accused
persons and him or his family members.
His sister had not conveyed the reason as to
why these two boys visited his house. He
cannot tell the reason behind the incident.
On the basis of the information given by
the persons who reached at the place of
occurrence, he had lodged the FIR. He does
not remember their names. On the date of
incident, the Investigating Officer had
inquired him and thereafter he did not meet
to the Investigating Officer. His mother
remained under treatment for 12 days at the
Medical College.

(17) PW-2, Santoshi, sister of the
informant, deposed that on 19.07.2011 at
about 02:15 p.m. she and her mother were
in the house. Her brother was not there. By
that time, Rahul came to her house with his
friend, Bablu and started molesting her and
insisted for marriage. When she opposed
and cried, both the accused persons Rahul
and Bablu started attacking with the knife
with the intention to kill her. In the
meantime, when her mother reached there,
they attacked her mother also and tried to
slit her throat. Hearing the commotion,
neighbours and her brother reached there.
Rahul was caught there whereas Bablu fled
from the place of occurrence. Her mother
was severely injured and while her mother
was taken to the hospital, Rahul also
escaped but was arrested by the police
afterwards. In this incident, she suffered
several injuries on her throat, fingers and
on her body. Her brother-informant lodged
the report at Police Station Wazirganj. She
recognized the accused persons as as they
were known to her before the incident and
with one of them, she used to talk on phone
and they had also visited her house 2-3
times. The Investigating Officer had
inquired
her
and
had
recorded
her
statement. Her mother's statement was
recorded in the hospital. Both the persons
had injured her and her mother as she had
10 All. Rahul Vs. State of U.P.
661
refused to marry the accused Rahul and her
mother had opposed it. After about 12 days
of treatment, her mother died in the
hospital due to septicaemia.

(18) In the cross-examination, PW-2
deposed that she knows Bablu as friend of
Rahul. There was no enmity prior to the
incident. This incident had occurred all of
sudden. Bablu had attacked upon her with
knife with the intention to kill her. She
cannot tell the number of assaults made by
the accused by knife upon her and her
mother. When Bablu was attacking upon
her and her mother, she cried. Rahul had
only caught hold of her. Several persons
alongwith her brother had reached at the
spot. She was discharged after the first aid
was given. The Investigating Officer had
visited her house 2-3 times. She could not
tell as to the persons who had intervened to
save them. She could not tell who had
provided her phone number to Bablu. She
used to talk with Rahul on phone. This
incident had occurred all of sudden while
talking about their marriage. The offence
was committed by a vegetable knife which
was kept in kitchen. She cannot tell the
measurement of knife. It's edge would be
six inch.

(19) PW-3, Dr. Shiv Shankar Singh
has deposed that he had examined Santoshi
Kumari at about 03:15 p.m. on 19.07.2011
and had found following injuries on her
person:-

(i) Lacerated wound 01cm x 0.5 cm
muscle deep right side of upper lips and
there was profuse bleeding.

(ii) Abrasion 03 cm x 02cm towards
the neck 4cm above sternal notch.

(iii) Lacerated wound 1.5cm x 0.5cm
on the ring finger in the right hand.

(iv) Lacerated wound 01cm x 0.50cm
on little finger in the left hand.

(v) Lacerated wound 01cm x 0.2cm
1cm below injury no. (iv).

(vi) Cut wound 01cm x 0.2cm at distal
end of left little finger.

(vii) Cut wound 01 cm x 0.2 cm on the
dorsum of middle finger of the left hand.

(20) According to PW-3, injury nos.
(iv), (v) and (vii) were simple in nature
caused by sharp-edged weapon, whereas
injury nos. (i), (ii), (iii) and (vi) were also
simple in nature but were caused by a blunt
object. This witness verified the injury
report Ex.Ka-2.

(21) In cross-examination PW-3
deposed that he had not prepared any
supplementary injury report. There was no
stab wound on the body of the victim.
Injury no. (ii) was abrasion which may
occur after fall by grazing. These injuries
may have occurred after 12 o'clock. There
was visible bleeding from all the injuries
except injury no. (ii) without any blood
clot.

(22) PW-4, Dr. Sunil Kumar Yadav
has deposed that on 01.08.2011 he had
conducted post-mortem on the dead body
of the deceased Savitri Devi, aged about 60
years. The body was thin. The deceased
died in Gandhi Memorial Hospital on
01.08.2011 at about 10:05 a.m. There was
rigour mortis on the upper part of the body.
Half of the mouth was open. There was
clotting in the upper membrane of the brain
and also in the pleural upper membrane of
the lungs. Right part of the heart was filled
up with blood. There were six stitched
wounds on the left part of the neck above
the chin and five stitched wounds 1.5 cm
before the first wound. Trachea was
stitched and artificial tube was lying there.
662 INDIAN LAW REPORTS ALLAHABAD SERIES
There were spots of pus everywhere
including the lung, heart, liver, kidney and
spleen. The death of the deceased had
occurred due to septicemia arisen out of the
aforesaid injuries. This witness has proved
the post mortem report Ex. Ka-3.

(23) In cross-examination also PW-4
has deposed that the death of the deceased
had occurred due to septicaemia. He cannot
tell the weapon from which these injuries
were caused. When he opened the dead
body he found pus which was caused by
the poisoning outbreak. He cannot tell that
whether the life of the deceased could be
saved by a better treatment or not.
Septicaemia
may
occur
during
the
treatment and prior to the treatment also.
The witness denied that the death of the
deceased
occurred
due
to
improper
treatment.

(24) PW-5, SI Dharmveer Saroj has
proved the inquest report Ex.Ka-4 and
other related papers such as police Form-13
Ex.Ka-5 and police Form-33 Ex.Ka-6.

(25) In the cross-examination, PW-5
deposed that death memo had been
received on 01.08.2011 at 10:30 p.m. At the
time of preparation of inquest, he had not
received the FIR. He admitted that till
closure of inquest, witnesses had not been
conveyed the names of accused persons.

(26) PW-6, SI Manoj Kumar Pathak
has deposed that on 19.07.2011 he was
posted as Chauki In-charge and had
received the investigation of this case same
day. He collected the chik FIR, carbon GD,
kaymi GD, statement of the informant and
arrested the accused and also recovered the
weapon used in commission of the said
crime. He collected blood stained and plain
soil, injury report, visited the place of
occurrence and had recorded the statement
of the witnesses and injured Kumari
Santoshi. He proved site plan Ex.Ka-8,
memo of blood stained and plain soil
Ex.Ka-9, recovery memo of knife Ex.Ka10. On 28.07.2011 he recorded the
statement of the injured Smt. Savitri Devi.
On 03.08.2011 he received the inquest and
post mortem reports from the police station
and added Section 302 IPC. Thereafter the
investigation was transferred to the Station
House Officer. This witness has also proved
the blood-stained cloth and plain soil
M.Ex.1; cloth covered knife M.Ex.2;
wrapped paper on the knife M.Ex.3; knife
M.Ex.4; box containing plain soil M.Ex.5
and box containing blood stained soil
M.Ex.6.

(27) PW-7, SI Pankaj Kumar Singh
has deposed that on 04.08.2011 he had
assumed investigation. He copied the
inquest report and recorded the statement
of the inquest witnesses and produced
parcha no. 5 in the court regarding addition
of Section 302 IPC on 08.08.2011. He took
the accused on remand for 14 days through
parcha no.6 dated 17.08.2011. In parcha
no.7 dated 18.08.2011, he copied the
medico legal report of the deceased Savitri
Devi. He arrested the accused Bablu and
recorded his statement as per parcha no.8
dated 23.08.2011. On 29.08.2011 he
prepared parcha no. 9 by which the knife
alleged to be used in commission of crime
and plain and blood stained soil were sent
to the FSL. According to parcha no.10
dated 11.10.2011, he recorded the statement
of the inquest witnesses. As per CD paper
no.11 dated 12.10.2011, he sent reminder
for report to FSL. In parcha no.11A dated
12.10.2011 he recorded the statement of Dr.
Shiv Shankar after visiting Balrampur
Hospital. On 15.10.2011 he prepared paper
no.12 and recorded the statement of the
10 All. Rahul Vs. State of U.P.
663
witnesses regarding the recovery memo of
blood stained and plain soil.

(28) PW-8, Adarsh Kumar Singh
deposed that on 17.07.2011 he had received
the investigation as SI Police Station
Wazirganj and has copied the chik FIR,
kaymi GD, statement of the FIR scribe and
accused. On 21.07.2011 he recorded the
statement of the informant, witnesses and
visited the place of occurrence and the
witnesses and had submitted the charge
sheet in the court. This witness has proved
site plan Ex.Ka-11 in his own hand writing
and signature and also the charge sheet
Ex.Ka-12.

(29) PW-9, Constable Vachan Singh
has deposed that on 19.07.2011 when he
was posted as Constable Moharrir at Police
Station Wazirganj, SI Manoj Kumar Pathak
alongwith his companions produced a
sealed knife with recovery memo on the
basis of which he had lodged a case bearing
Case Crime No. 220 of 2011, under Section
4/25 Arms Act, Police Station Wazirganj at
chik no. 205 of 2011 against the accused
Rahul. This witness has proved the chik
FIR Ex.Ka-11A and carbon copy, kaymi
GD as Ex.Ka-12A.

(30) PW-10, HCP Adarsh Kumar has
deposed that on 12.07.2011 when he was
posted as Constable Moharrir at Police
Station Wazirganj, Lucknow, he had
prepared chik no. 204 of 2011 at Crime No.
291 of 2011, under Sections 354, 452, 307
IPC against the accused Rahul and another
at 14:50 p.m. on the basis of the written
complaint produced by the informant
Jitendra. This witness has proved chik FIR
Ex.Ka-1 and carbon GD Ex.Ka-15.

(31) PW-11, Dr. Avanish Kumar has
deposed that on 19.07.2011 when he was
posted as Associate Professor in KGMU.
His team had admitted Smt. Savitri Devi at
03:00 p.m, who was shifted to the ENT
Department on 22.07.2011. This witness
has proved bed head ticket (BHT) Ex.Ka16 written by Dr. Ajay Kapoor in which the
description of the injuries of Smt Savitri
Devi were written. According to this
witness, such injuries may have occurred
with the knife at about 02:15 p.m. on
19.07.2011.

Defence witnesses

(32) DW-1, Suneel Kumar Pal has
deposed that Rahul is his neighbour. Bablu
and Rahul were friends and were involved
in catering. On 19.07.2011 he, Rahul and
his sister Mamta had gone to the house of
Santoshi to talk about their marriage as
there was love affair between both of them.
Rahul and Santoshi used to talk to each
other on phone. They also used to talk to
her mother. In the meantime, heated
arguments took place between Rahul and
Santoshi and when the situation became
untoward, they returned from the house of
Santoshi. Rahul did not kill any one with
any weapon. There was no enmity amongst
Santoshi, her mother, Rahul and Bablu. The
accused used to visit the house of Santoshi.
Thereafter, when he and sister of Rahul
were at the bus station and were waiting for
the bus, police reached there and arrested
Rahul.

(33) In the cross-examination this
witness deposed that he was working at the
shop of Raj Garments at Zero Road,
Allahabad from 10:00 a.m. to 07/08:00
p.m. They both stay near Karbala. During
the course of incident, he used to teach
children at Allahabad. It is wrong to say
that he had not gone to Lucknow on the day
of incident. This witness denied that police
664 INDIAN LAW REPORTS ALLAHABAD SERIES
had
arrested
accused
Rahul
from
Rakabganj Tempo Stand. This witness
denied that being neighbour of Rahul he
was deposing wrongly in his favour.

(34) DW-2, Sangeet Kumar, cousin of
the accused Rahul has deposed that there
was love affair between Santoshi and
Rahul. On 19.07.2011 he had also gone to
Lucknow with Sunil, Rahul and his elder
sister Mamta to the house of Santoshi to
arrange their marriage. Rahul and Santoshi
were talking to each other. They were also
sitting at some distance in her house. After
some time hot talk took place between
them and soon it converted into a fight.
Thereafter they came out of the house of
Santoshi with Rahul. Rahul had not killed
any one with any weapon. It is true that
Rahul and Bablu used to visit the house of
Santoshi. Santoshi and her mother were
well aware of Rahul and Bablu. There was
no enmity between both families. It is true
that police has falsely implicated accused
Rahul and after coming from the house of
Santoshi and waiting for the bus at the bus
station, the police reached there and
arrested Rahul. This witness stated that it is
incorrect to say that he had not visited
Lucknow regarding marriage of Rahul and
that
Rahul
was
not
arrested
from
Rakabganj Tempo Stand.

(35) DW-3, Mamta, elder sister of
accused Rahul has deposed that on
19.07.2011 she had gone to Lucknow with
Rahul and Sangeet for fixing the marriage
of Rahul with Santoshi at her house where
her
mother
was
also
present
and
conversation had taken place. Later, they
came to the bus stand with Rahul where the
police reached and arrested him. He had
not killed any one. There was no enmity
with the family of Santoshi. None had
attacked Santoshi with knife. They had
come together to the bus stand.

(36) In the cross-examination DW-3
deposed that at present neither her father
nor mother is alive. Her mother had passed
away long back. At the time of incident, her
father was alive. Her another sister was
already married. At the time when
occurrence took place Rahul was engaged
in the work of catering in the marriages.
She had visited Lucknow first time by
train. After coming out of tempo they had
gone to the house on foot. This witness
denied the suggestion that she had not
come to Lucknow with Rahul in connection
with marriage. She also denied that Rahul
was arrested from Rakabganj Tempo Stand.

(37) After closure of the evidence, the
statement of the accused was recorded
under Section 313 CrPC in which he denied
the charges levelled against him and
alleged that Santoshi had an affair with
Bablu and when her mother opposed, Bablu
killed her.

(38) The trial court has convicted the
accused under Sections 452, 354, 307/34,
302/34 IPC and has also imposed fine with
default stipulation as stated above.

(39) Learned counsel for the appellant
vehemently argued that for the sake of
argument if it is accepted that the crime had
been committed by the accused persons
then the evidence once appreciated in the
correct perspective would indicate the
possibility that it was Bablu who had killed
the deceased Savitri Devi and not the
accused Rahul. It is also argued that there
was no mens rea to commit murder and the
accused persons had not visited the house
of the deceased with any weapon. The
incident had occurred in a spur of moment
10 All. Rahul Vs. State of U.P.
665
due to sudden provocation and not with a
premeditated mind. The knife alleged to be
used in the commission of offence was
simply a knife used in home for cutting the
vegetables and the death of the deceased
had occurred due to septicaemia after 12
days of the incident. Hence, this case is
squarely covered under Exception 4 of
Section 300 IPC read with Section 299 IPC
which describes an offence of culpable
homicide not amounting to murder. It was
also pointed out that PW-2 is only an eyewitness who has deposed that Bablu had
attacked upon her and her mother. Rahul
had been assigned only the role of catching
hold of PW-2 and she has also accepted
that this incident had occurred all of sudden
in connection with marriage.

(40) Before considering into the merits of
the case, it is necessary to look into the relevant
aspects of the matter and the relevant provisions
of law.

Mens rea and Section 34 IPC

(41) In this case, according to the prosecution,
the accused Rahul and Bablu have committed
the offence. Offence of any nature is not
acceptable in a civilized society. The offence of
criminal nature causing death or threat to a
human life is an unpardonable breach of law
which has punishment under the law attached to
it, i.e. prosecution by the State in the criminal
court and the respective punishment being
imposed to the culprit on the offence being
proved by following due procedure of criminal
law. The concept of crime is dynamic in nature
and it keeps on redefining with the change in
social norms, values and perceptions about
wrongful human conduct in a society, such as in
case of live-in relationship.

(42) There are following elements of
crime:

(i) there should be an overt act (actus
reus) or omission;

(ii) it should have been done with criminal
intent (mens rea);

(iii) the act or omission, as the case may
be, should be a prohibited conduct under the
existing criminal law; and

(iv) it should carry some kind of sanction
by way of punishment.

(43) So far as the overt act or omission is
concerned, mere intention or mens rea shall not
by itself constitute a crime unless it is
accompanied by an external overt act. The
criminal law not only holds the person who has
committed a crime liable to be punished, but
also an attempt to commit a crime is an offence
punishable under Section 511 and 307 IPC.

(44) So far as the second ingredient is
concerned, mens rea or guilty mind is an
essential ingredient of a crime which may be
direct, indirect or implied. The implied mens
rea is also termed as constructive mens rea
which imposes absolute liability on the offender
irrespective of the fact whether he knew
that what he was doing was a crime or not.

(45) In the context of mens rea a
distinction has to be drawn between
intention and motive. Mens rea means
guilty mind. What is relevant in deciding
the guilt of the offender is his intention of
doing the particular act i.e. crime and not
the motive behind doing that act. An act to
be treated as crime should be prohibited or
forbidden under the existing penal law.

(46) As a general rule, the burden of
proof in a criminal case lies on the
prosecution due to the principle that an
accused is presumed to be innocent until he
is proved guilty. In case of any doubt
regarding participation or involvement of
the accused in the crime, he is entitled to
666 INDIAN LAW REPORTS ALLAHABAD SERIES
the benefit of such doubt and may be
discharged or acquitted. Where two similar
possibilities of guilty of offence exist, the
benefit shall go to the accused and he shall
be acquitted.

(47) The normal rule is that a person
should be held liable for an act and no one
can be penalized for an act committed by
other but there are certain exceptions that
on the basis of collective responsibility
another person participating slightly in the
offence may be punished.

(48) Here, it is the case of the
prosecution that both the accused persons
entered the house of the deceased and started
molesting her daughter and upon her
commotion the deceased reached there, they
attacked her and her daughter Santoshi.
Santoshi was discharged 2-3 hours after
receiving medical aid, whereas the deceased
was admitted to the hospital where she passed
away after 12 days due to septicaemia.

(49) In this context Sections 34-38 IPC
are relevant which deal with joint criminal
liability on the persons when they jointly
participate or contribute to the commission of
an offence.

(50) The main ingredients of Section 34
IPC are as under:-

(i) A criminal act must be involving more
than one person;

(ii) It must be in furtherance of the
common intention of all; and

(iii) There must be participation of all
persons in furtherance of the common
intention.

(51) In Nand Kishore Vs. State of MP,
(2011) 4 CrLJ 4243 (SC) the Apex Court held
that where a criminal act is done by several
persons in furtherance of common intention of
all, each of such person would be liable in the
same manner as if it was done by him alone.

(52) In Lallan Rai Vs. State of Bihar,
(2003) 1 SCC 268 it has been held that the
essence of common intention under Section 34
IPC is simultaneous meeting of the mind of
persons participating in the criminal act to
bring about a particular desired result.

(53) In Pyarelal Vs. State of UP, AIR
1987 SC 852 it is held that even in regard to
offence involving physical violence it is not
necessary that every accused must have taken
active participation in the occurrence on the
victim.

(54) In Mahesh and another vs. State
of MP, AIR 2012 SC 2172 the Apex Court
reiterated that Section 34 IPC provides that
if two or more persons intentionally do an
act jointly, the position in law would be just
the same as each of them has done the
offence individually by himself. The
section is based on the doctrine of
constructive criminal liability which is well
settled principle of law. However, in some
cases the Court did not apply Section 34
IPC in respect of another accused when
mens rea and common intention of rest of
the accused persons were not same.

(55) In Chhotu Vs. State of
Maharashtra, AIR 1997 SC 3501, it has
been held that three persons repeatedly
gave blows upon the deceased for some
time. One of the accused was seen standing
with knife in his hand. The Apex Court
held that he could not be said to have a
common intention on the ground of such
facts only and, therefore, he was entitled to
benefit of doubt.
10 All. Rahul Vs. State of U.P.
667

(56) In this case the accused appellant
has been convicted with the aid of Section
34 IPC under Section 302 IPC for causing
the death of the deceased Savitri Devi.

(57) Keeping in view the above legal
propositions, it has to be seen as to whether
there was a common intention of both the
accused persons to kill the deceased Savitri
Devi and to cause injury to Santoshi.

(58) Here, it is established that both
the accused persons used to visit the house
of the deceased and they used to talk with
Santoshi on phone. Thus, the accused, the
injured and the deceased were familiar with
each other. This fact was also in the
knowledge of the informant, Jitendra. Here
Bablu was a juvenile, whereas the present
accused Rahul was also a person of tender
age.

(59) Even if the statement of all the
defence witnesses are not taken to be true,
it has been established from the evidence of
the injured PW-2, Kumari Santoshi and
also from the statement of the IO recorded
under Section 161 CrPC that the accusedappellant, Rahul and Bablu had visited the
house of the deceased where the accused
Rahul had initiated talk with her about their
marriage.

(60) In the examination-in-chief, PW2, Santoshi has deposed that after entering
into the house accused Rahul started
molesting her and insisted for marriage and
when she opposed and shouted, both the
accused persons started attacking upon her
with the intention to kill her. In the
meantime, when her mother arrived there,
they also started stabbing her and after
dragging her down and slit her throat.
Contrary to the examination-in-chief, this
witness has deposed in cross-examination
that this quarrel had occurred suddenly.
Bablu had stabbed her with the intention to
kill her. When Bablu was attacking her and
her mother, Rahul was only catching hold
of her. In the cross-examination she has
also accepted that this incident had
occurred suddenly on account of rage and
accused Rahul had only caught hold of her
whereas accused Bablu caused injuries by
the use of vegetable knife.

(61) From the above discussion, there
remains no doubt that the accused had
entered into the house without any
premeditation of mind or with the intention
to force Km. Santoshi to agree for marriage
with Rahul.

(62) It needs no discussion that mens
rea arises on the spot and is not premeditated. In several decisions, it has been
held that even devil cannot read the mind
of a human being be it an accused or
otherwise. It is also borne from the record
that
the
informant
was
having
the
knowledge about the visit of the accused
persons and also that the accused was in
talking terms with his sister and he had
never objected or stopped them from
visiting his house or talking to his sister.

(63) It has also been established that
the accused persons had not trespassed the
house of the informant for causing hurt or
assaulting Kumari Santoshi or the deceased
nor it is the case of the prosecution that the
accused had entered the house forcibly or
in a manner so as to infer any ill motive;
rather they were permitted by Santoshi
(PW-2) and also by her mother as they
were the usual visitors of their house.
Therefore, this Court is of the view that the
ingredients of Section 452 IPC are not
made out against the appellant as his entry
in the house was not resisted and nor he
668 INDIAN LAW REPORTS ALLAHABAD SERIES
entered the house forcibly or stealthily,
rather was permitted voluntarily.

(64) So far as the death of the
deceased Smt. Savitri Devi is concerned, it
has been proved that there were two
injuries on her body and just after the
incident she was taken to trauma centre
KGMU, Lucknow where she remained
under treatment and after 12 days, she
succumbed to the injuries sustained on
31.07.2011.

(65) PW-4 Dr. Sunil Kumar Yadav
had conducted autopsy on the dead body of
the deceased. He opined that there were
spots of pus in the lungs, liver, kidney and
spleen. The cause of death was stated to be
spread of poison throughout the body
(septicaemia) due ante mortem injuries.

(66) In view of above, there remains
no iota of doubt that the accused-appellant
was a frequent visitor of the house of the
deceased and wanted to marry Km.
Santoshi and had visited her house without
any weapon and it was only on account of
altercation amongst them, the incident in
question had occurred and that the
deceased had died due to septicaemia
which was an effect of the injury which
may not have been fatal had the infection
been controlled from getting into the
bloodstream.

(67) On the basis of above facts and
circumstances, learned counsel for the
appellant argued that it was not a case of
murder as defined under Section 300 IPC
but at the most it is a case of culpable
homicide not amounting to murder as
envisaged under Section 299 IPC which is
punishable under Section 304 IPC. In
support of his submission, he has relied
upon
the
following
judicial
pronoucements:-

(i) In Atul Thakur Vs. State of
Himachal Pradesh and others, (2018) 2
SCC 496, the Apex Court has observed that
sudden physical fights have taken place
between the accused the deceased. Multiple
knife blow was given by the appellant to the
deceased. The Apex Court held that
because there was no premeditation, the act
done by the appellant was in a heat of
passion and the appellant had not taken
any undue advantage or not taken any
cruel manner.