# Rajesh Singh v. State of U.P

- **Citation:** (2022) 7 ILRA 174
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-07-06
- **Case number:** Crl. Appel. No. 1014 of 2012
- **Bench:** Dr. Kaushal Jayendra Thaker, Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajesh-singh-v-state-of-u-p-48874
- **Pages:** 6

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 299 - Section 300 -
Arms Act, 1959 - Section 25 - The Code of
Criminal Procedure, 1973 - Section 313
7 All. Rajesh Singh Vs. State of U.P.
175
Culpable
homicide
-
appeal
against
conviction - punishment for murder power
to examine accused -''murder' - ''culpable
homicide not amounting to murder'.

Accused
and
deceased
stayed
in
New
Dharamshala Hotel - with fake names - Next
day, deceased found dead in room - accused
absconded - no eye-witness of occurrence -
circumstantial evidence - knife recovered - no
injury.(Para - 10,16)

HELD:-Offence punishable under Section 304
part-I of the IPC . No injuries caused by knife
found from room where dead body was found.
Accused committed culpable homicide not
amounting to murder. Sentence of default
maintained. Fine and imprisonment for default
under Section 25 Arms Act maintained. (Para -
17,18)

Appeal partly allowed.(E-7)

List of Cases cited:-

## Text

174 INDIAN LAW REPORTS ALLAHABAD SERIES

"55. ...........It has left an aggrieved
person without of remedy of even a first
appeal against any judgment, sentence or
order passed under the 1989 Act on the
expiry of 180 days. As we contemplate the
fatal consequences which would visit an
aggrieved person on the expiry of 180 days,
we shudder at the deleterious impact that it
would have and find ourselves unable to
sustain the second proviso which must
necessarily be struck down, as we do, being
in violation of Article 14 and 21 of the
Constitution.
xxxx
62. While we reject the challenge to section
14A (2), we declare that the second proviso
to Section 14A (3) is violative of Articles
14 and 21 of the Constitution and it is
consequently struck down."

16. The second proviso to subsection(3) of Section14A of the 1989 Act
having been struck down by this Court in
In Re : Provision of Section 14 (a) of
SC/ST
(Prevention
of
Atrocities)
Amendment Act, 2015 (supra), there will
be no limitation to file an appeal against an
order under the provisions of 1989 Act.
Hence, the remedies can be availed of as
provided.

17. In view of our aforesaid
discussions, the answers to the questions
referred are as under :-

(i) Question No.(I) is answered in
negative as Rohit Vs State of U.P. and
another, (2017) 6 ALJ 754 has been
overruled by Full Bench of this Court in In
Re : Provision of section 14 (a) of SC/ST
(Prevention of Atrocities) Amendment
Act, 2015, (2018) 6 ALJ 631.

(ii) Question No.(II) is answered in
negative holding that an aggrieved person
will not have two remedies namely, i.e.
filing an appeal under Section 14A of the
1989 Act as well as filing a bail application
in terms of Section 439 Cr.P.C.

(iii) Question No.(III) is answered in
negative holding that the aggrieved person
having remedy of appeal under Section
14A of the 1989 Act, cannot be allowed to
invoke inherent jurisdiction of this Court
under Section 482 Cr.P.C.

(iv) Question No.(IV) - There will be
no limitation to file an appeal against an
order under the provisions of 1989 Act.
Hence, the remedies can be availed of as
provided.

18. While answering the questions
referred to by the learned Single Judge, let
the present criminal appeal be now placed
before appropriate Court as per the roster
on August 11, 2022.
----------
(2022)07ILR A174
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2022

BEFORE

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

Crl. Appel. No. 1014 of 2012

Rajesh Singh ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Sanjiv Kumar Pandey, Shabana Shabbir, Sri
Surendra Singh, Sri Rajeev Kumar Pandey

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 302 & 299 - Section 300 -
Arms Act, 1959 - Section 25 - The Code of
Criminal Procedure, 1973 - Section 313
7 All. Rajesh Singh Vs. State of U.P.
175
Culpable
homicide
-
appeal
against
conviction - punishment for murder power
to examine accused -''murder' - ''culpable
homicide not amounting to murder'.

Accused
and
deceased
stayed
in
New
Dharamshala Hotel - with fake names - Next
day, deceased found dead in room - accused
absconded - no eye-witness of occurrence -
circumstantial evidence - knife recovered - no
injury.(Para - 10,16)

HELD:-Offence punishable under Section 304
part-I of the IPC . No injuries caused by knife
found from room where dead body was found.
Accused committed culpable homicide not
amounting to murder. Sentence of default
maintained. Fine and imprisonment for default
under Section 25 Arms Act maintained. (Para -
17,18)

Appeal partly allowed.(E-7)

List of Cases cited:-

1. Maru Ram Vs U.O.I., 1981 (1) SCC 107

2. Vikas Yadav Vs St. of U.P, 2016 (9) SCC 541

3. Tukaram & ors.Vs St. of Mah., (2011) 4 SCC
250

4. B.N. Kavatakar & anr. Vs St. of Karn., 1994
SUPP (1) SCC 304

5. Veeran & ors. Vs St. of M.P. , (2011) 5 SCR
300

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

1. Heard Sri Surendra Singh, learned
counsel for the appellant and Sri Nagendra
Kumar Srivastava, learned A.G.A. for the
State.

2. This appeal challenges the
judgment and order dated 2.12.2011 passed
by Additional Sessions Judge, Court No.1,
Kanpur Nagar in Sessions Trial No.1057 of
2007 convicting accused-appellant under
Section 302 of Indian Penal Code, 1860
(hereinafter referred to as 'IPC') and
sentenced him to undergo imprisonment for
life with fine of Rs.20,000/- and in default
of payment of fine, further to undergo
imprisonment for six months and in
Sessions Trial No. 1058 of 2007 convicting
him under Section 25 of Arms Act and
sentencing him to undergo six months
imprisonment with fine of Rs.1,000/- and
in case of default of fine, further to undergo
one month imprisonment.

3. Brief facts giving rise to this appeal
are that a first information report was lodged
by the complainant Balister Singh, Manager
of New Dharamshala Hotel, Kanpur Nagar
with the allegations that last night two
persons namely, Mahesh and Pooran stayed
in the aforesaid hotel and told their address as
Mohalla Khataina House No.10/275, Agra.
On the next morning, i.e., 04.06.2007, the
day of FIR, the Manager took round of the
room of the hotel at 8:00 am. When he called
the above guests in room No.45 none
responded. The Manager thought that the
guest would have been sleeping. At 2:00 pm,
when he again called from outside the room
and none responded again, then he pushed the
door of the room and it opened. The Manager
entered the room and saw a person lying on
the bed in a dead position and a blood stained
brick was also lying there on the bed. The bed
and wall of the room were also having blood
on it. The Manager informed the owner of the
hotel Sunny Singh and told him that the name
of the dead person is Pooran and his associate
Mahesh has run away after killing Pooran.
Investigating
officer
took
up
the
investigation. Blood stained pillow cover,
blood stained plain earth, piece of bed sheet
and sleepers etc were taken into possession. A
knife was also recovered from the room. A
sketch of the accused- Mahesh was circulated
and on 22.07.2007, accused Mahesh was
176 INDIAN LAW REPORTS ALLAHABAD SERIES
arrested by the I.O. During the course of
investigation inquest report was prepared.
Post mortem of the dead body of the
deceased was conducted and after completion
of the investigation, charge sheet was filed
against the accused in the name of Rajesh
Singh because the earlier name Mahesh was
wrongly informed to the hotel deliberately
and the actual name of deceased was
Brijendra Singh.

4. The offence committed being
exclusively triable by court of sessions the
learned Magistrate committed the case to
court of sessions.

5. The accused was summoned and on
appearing he was read over the charges. the
accused pleaded not guilty and wanted to
be tried, hence, the trial started and the
prosecution examined 9 witnesses who are
as follows:

1
Balister Singh
PW1
2
Sani Singh
PW2
3
Mahesh Chandra Gupta PW3
4
Dr. A.K. Nigam
PW4
5
Shiv Narain Singh
PW5
6
Dori Lal Gautam
PW6
7
Rakesh Chandra
PW7
8
Shiv Kumar Gupta
PW8
9
Harpal Singh
PW9

6. In support of ocular version
following documents were filed:

1
F.I.R. u/s 302 IPC
Ex.Ka4
2
F.I.R. u/s 25 Arms
Act
Ex.Ka19
3
Written Report
Ex.Ka2
4
Recovery Memo of
Blood
Stained
pillow
cover
&
Knife,
blood
stained
&
plain
earth,
piece
of
Bedsheet
&
Slippers,
Coins
Beedi
and
Matchstick
Ex.Ka13
5
Recovery memo of
'Tamancha',
Live
Cartidges & Arrest
of Memo
Ex.Ka14
6
Postmortem Report Ex. Ka3
7
Panchayatnama
Ex.Ka2/6
8
Site Plan u/s 302
IPC
Ex.Ka12
9
Site Plan u/s 25
Arms Act
Ex.Ka16A
10
Charge-sheet
u/s
302 IPC
Ex.Ka15
11
Charge sheet u/s
25 Arms Act
Ex.Ka
17

7. At the end of the trial and after
recording the statement of the accused
under section 313 of Cr.P.C., and hearing
arguments on behalf of prosecution and the
defence,
the
learned
Sessions
Judge
convicted the appellant as mentioned
above.

8. The accused-appellant is in jail
since 22.7.2007. Learned counsel for the
appellant has made three fold submissions.
One, it is a clear case of acquittal as the
circumstantial evidence is not sufficient
and the chain is not complete which would
point only to the guilt of accused-appellant
who is in jail. Two, in the alternative, he
7 All. Rajesh Singh Vs. State of U.P.
177
has submitted that the injuries which are
found though on the temporal part of the
deceased, there is only one blow and that
was with the brick and not by sharp edged
knife which was found from the accused.
There is no mention of any incised wound
on the body of the deceased and, therefore,
the offence is one which would be
punishable under Section 304 Part I of IPC.
Three, in the alternative, he has submitted
that even if it is considered that the accused
has committed the offence punishable
under Section 302 of I.P.C., the term "life"
in view of the judgments of the Apex Court
in Maru Ram Vs. Union of India, 1981
(1) SCC 107 and in Vikas Yadav Vs.
State of U.P, 2016 (9) SCC 541, would not
be till last breath of appellant as it cannot
be said that the death is so gruesome, that
the appellant should be incarcerated in jail
till the end of his life.

9. Sri N.K. Srivastava, learned A.G.A.
for the State submits that it is not a case of
acquittal as reason given by the learned
Sessions Judge are cogent and the accused
appellant cannot be given benefit of doubt.
It is further submitted that this is also not a
case which falls under Section 304 Part I. It
is a clear case of murder and punishment
under Section 302 of I.P.C does not call for
interference.

10. Prosecution case is that before one day
of the occurrence, accused and deceased
stayed in New Dharamshala Hotel, Kanpur
Nagar with fake names. Next day, deceased
Brijendra Singh, earlier Pooran, was found
dead in room No.45 of the hotel and the
accused Rajesh Singh, earlier Mahesh, was
found absconded from there. A blood
stained brick was also found lying on the
bed. There is no eye-witness of the
occurrence. It is a case of circumstantial
evidence. In a case of circumstantial
evidence, the chain of circumstances
should be completed in such a manner, as
there is left no doubt that offence is not
committed by anyone else but the accused
only. During the course of the investigation,
the motive is established, which was
usurping the amount of Rs.1,50,000/- from
the deceased. Evidence is there that the
accused withdrew the amount from the
account of the deceased by using his ATM
card. Hotel record goes to show that
accused and deceased stayed together in the
same room of the hotel and the deceased
was last seen in the company of the
deceased by the Manager of the hotel and
after that deceased was not seen with
anybody-else. It is also a circumstance
against the accused that he absconded from
the hotel without informing the hotel staff
and arrested later on by the investigating
officer with the help of his sketch.

11. Considering the evidence of the
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt of the present appellant.

12. 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 of I.P.C. of
the Indian Penal Code 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 read 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
178 INDIAN LAW REPORTS ALLAHABAD SERIES
that he is likely by such act to cause death,
commits the offence of culpable homicide."

13. 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 Section 299 and 300 of
I.P.Code. 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 if 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;

KNOWLED
GE
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.

14. At the time of post mortem of the
deceased following ante mortem injuries
were found as per the post mortem report:-

(i) One contused swelling of 15cm x
10cm on the right side of the head, just
above ear and there were several lacerated
wounds just above it of size 1cm x 1cm

(ii) Behind the head in the area of 7cm
x 5 cm there was contused swelling in
which there were several lacerated wounds
of size 1cm x 1cm

15. On internal examination a 10cm
long fracture in temporal and parietal bone
was found.

16. The above ante mortem injuries
were inflicted by the brick which was
found on the bed where the dead body was
lying. It is very relevant to mention that a
knife was also recovered from the room of
the hotel but there was no injury of incised
wound on the person of the deceased,
which goes to show that the knife was not
used by the accused.

17. On overall scrutiny of the facts
and circumstances of the present case
coupled with the opinion of the Medical
Officer and considering the principle laid
down by the Apex Court in the Case of
Tukaram
and
Ors
Vs.
State
of
7 All. Sikander & Anr. Vs. State of U.P.
179
Maharashtra, reported in (2011) 4 SCC
250 and in the case of B.N. Kavatakar and
Another Vs. State of Karnataka, reported
in 1994 SUPP (1) SCC 304, we are of the
considered opinion that the offence would
be one punishable under Section 304 part-I
of the IPC as there are no injuries caused
by knife found from room where dead body
was found.

18. From the upshot of the aforesaid
discussions, it appears that the death caused
by the accused was not premeditated, but
the intention has to be inferred as the
injuries were sufficient in the ordinary
course of nature to have caused death,
hence the instant case falls under the
Exceptions 1 and 4 to Section 300 of IPC.
While
considering
Section
299
as
reproduced
herein
above
offence
committed will fall under Section 304 PartI as per the observations of the Apex Court
in Veeran and others Vs. State of M.P.
Decided, (2011) 5 SCR 300 which have to
be also kept in mind.

19. In view of the above, we hold that
the
accused
has
committed
culpable
homicide not amounting to murder and
punish
him
to
undergo
rigorous
imprisonment for 10 years and fine of
Rs.10,000/-.
Sentence
of
default
is
maintained. Period of sentence for six
months imprisonment under Section 25
Arms Act has already been undergone by
the appellant. Fine and imprisonment for
default under Section 25 Arms Act is
maintained. If 10 years' incarceration is
over, the Jail authority would release the
accused if not wanted in any other offence.

20. This appeal is partly allowed.
Record and proceedings be sent back to the
Tribunal forthwith.
----------
(2022)07ILR A179
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.07.2022

BEFORE

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

Crl. Appel. No. 1030 of 2013

Sikander & Anr. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri Uma Shankar Pal, Sri Raj Kumar Mishra, Ms.
Pooja, Sri Arvind Kumar Kushwaha

Counsel for the Respondents:
Govt. Advocate

(A) Criminal Law - Indian Penal Code,
1860 - Sections 299,302/34 ,304B & 498A
- The Code of Criminal Procedure, 1973 -
Dowry Prohibition Act,1961 - Section 4 -
Indian Evidence Act, 1872 - Section 32 -
dying declaration - it is not an absolute
principle of law that a dying declaration
cannot form the sole basis of conviction of
an accused - when such dying declaration
is true, reliable and has been recorded in
accordance with established practice and
principles - if it is recorded so then there
cannot be any challenge regarding its
correctness and authenticity. (Para -
23,34)

Deceased died after four days of burning - post
mortem report - died due to septicaemia shock -
septicaemial death - homicidal death - dying
declaration - Death caused by accused persons -
not pre-meditated - intentionally caused such
bodily injuries which were likely to cause death -
culpable homicide not amounting to murder -
accused in jail for last more than 14
years.(Para -28,29,36)

(B) Evidence Law - evidence of a hostile
witness cannot be discarded as a whole,