# Ram Het & Ors v. State of U.P

- **Citation:** (2020) 8 ILRA 541
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-10
- **Case number:** Criminal Appeal No. 1085 of 2012
- **Bench:** Mrs. Sunita Agarwal, Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-het-ors-v-state-of-u-p-46061
- **Pages:** 16

## Headnote

Criminal Law- Indian Penal Code, 1860-
Section 302, 325 and 323 - Appeal
against conviction.

Relative witnesses:-
The deposition of the relative witnesses
cannot be discarded solely on the ground of
relative witnesses. (Para-21)

Variation in the site plan -
The minor variation in the site plan not a
ground to discard the prosecution story.

In situation of sudden quarrel, a person in the
heat of the moment picks up a weapon which
is handy and causes injuries, one of which
proves fatal, he would be entitled to the
benefit of sec 300 Exception 4 of IPC
provided he has not acted cruelly. (Para-35)

Conviction upheld sentences reduced to the period
of imprisonment already undergone (Para 40)

Appeal accordingly disposed of. (E-2)

List of cases cited: -

## Text

_Characters 0–39,968 of 50,710. This is a partial read: ask again with offset=39968 for what follows._

8 All. Ram Het & Ors. Vs. State of U.P.
541
case beyond shadow of doubt hence the
learned trial court has rightly appreciating
each aspect of the case so finding of
conviction of the appellants under section
304 part II and 325/34 IPC hereby affirmed.

36. Last argument raised by learned
counsel for the appellants is that the incident
in question took place on a sudden fight
without any premeditation and the act of the
appellants
hitting
the
deceased
was
committed in the heat of passion upon a
sudden quarrel without the appellant having
taken undue advantage or acting in a cruel
or unusual manner and the weapon used
was not lethal. It is also not clear that out of
four accused, who were responsible to
commit fatal injury on the deceased and
grievous injury to Sudamiya (P.W.4). Only
general role has been assigned against the
appellants. It is also submitted that more that
31 years has already been elapsed and two
named appellants Ram Swaroop and
Chandra Sevak died during pendency of
appeal.
Presently
only
appellants
Umashankar
and
Kripashankar
are
surviving appellants. It has been claimed
that appellant Umashankar presently around
67 years old and Kripashankar is about 61
years. Presently both the appellants are well
rooted in society, submitted that no useful
purpose would be served if the surviving
appellants again sent into jail to serve out
the remaining part of the sentence.

37. Considering the entire facts and
circumstances of the case, appellants presently
senior citizen and there is no specific proof that
the fatal blow was inflicted by appellants. The
sentence so awarded by the trial court under
section 304 part II appears to be harsh under
these circumstances and the same may be
reduced from 5 years rigorous imprisonment to
3 years rigorous imprisonment as that would
meet the end of justice.

38. Accordingly appeal against both
the appellants on point of conviction is
hereby dismissed but partly allowed. Only
on point of quantum of sentence, sentence
under section 304 part II IPC sentence of 5
years rigorous imprisonment modified to 3
years rigorous imprisonment. Sentence part
under section 325/34 IPC shall remain
unaltered. Both the sentence shall run
concurrently. The period spent by appellants
in jail shall be set off from this sentence.

39. The appellants are on bail. Their
bail bonds stand cancelled. They are directed
to surrender within four weeks to serve out
the remaining period of sentence.

40. Consequently, the instant appeal
is allowed partly on above term.

41.

Let
a
copy
of
this
order/judgment be certified to the court
below for necessary information and
ensuring compliance within 2 months
under intimation to this Court.
----------
(2020)08ILR A541
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.07.2020

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 1085 of 2012

Ram Het & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ghanshyam Das, Sri Hemant Kumar, Sri
Jitendra Singh, Sri Satya Prakash Rathor, Seema
Shukla, Sri Vinod Kumar, Sri Kamal Krishna, Sri
Nitin Mukesh, Sri V.M. Zaidi, Sri Lal Chandra
Mishra, Smt. Usha Srivastava, Sri M.J. Akhtar.
542 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A.

Criminal Law- Indian Penal Code, 1860-
Section 302, 325 and 323 - Appeal
against conviction.

Relative witnesses:-
The deposition of the relative witnesses
cannot be discarded solely on the ground of
relative witnesses. (Para-21)

Variation in the site plan -
The minor variation in the site plan not a
ground to discard the prosecution story.

In situation of sudden quarrel, a person in the
heat of the moment picks up a weapon which
is handy and causes injuries, one of which
proves fatal, he would be entitled to the
benefit of sec 300 Exception 4 of IPC
provided he has not acted cruelly. (Para-35)

Conviction upheld sentences reduced to the period
of imprisonment already undergone (Para 40)

Appeal accordingly disposed of. (E-2)

List of cases cited: -

1. Subhash Gangadhar Jadhav Vs St. of Mah.,
2018 (4) Crimes (SC) 569: Criminal Appeal
No. 1576 of 2018.

2. St. of Punjab Vs Hardam Singh, (2005)
S.C.C. (Cr.) 834.

3. Dilip Singh Vs St. of Punj., A.I.R. 1983, S.C. 364.

4. Harbans Kaur Vs St. of Hary., (2005) S.C.C.
(Crl.) 1213

5. St. of U.P. Vs Kishan Chandra & ors.,
(2004) 7, S.C.C. 629.

6. Dalbir Kaur Vs St. of Punjab, AIR 1977 SC 472.

7. St. of Gujrat Vs Naginbhai Dhulabhai Patel,
AIR 1983 SC 839.

8. St. of A.P. Vs Rayavararapu Punnayya &
anr. reported in (1976) 4 SCC 382,
9. Budhi Singh Vs St.of H. P., (2012) 13 SCC 663.

10. Kikar Singh Vs St. of Rajasthan (1993) 4
SCC 238.

List of cases cited: -

1. Sarija Bano Vs St. through Inspector of
Police, (2004) 12 SCC 266.

2. Abdul Rashid Ibrahim Mansuri Vs St. of
Guj., (2000) 2 SCC 513.

3. St. of Raj. Vs Jag Raj Singh, (2016) 11 SCC
687.

4. U.O.I. Vs Ramsamujh, (1999) 9 SCC 429.

5. U.O.I. Vs Ratan Malik, (2009) 2 SCC 264.

6. St. of Ker. Vs Rajesh, (2020) SCC Online
SC 81.

7. Karnail Singh Vs St. of Har., (2009) 8 SCC
39.

8. Vijay Sinh Chandubha Jadeja Vs St. of Guj.
(2011) 1 SCC 609.

9. Mohan Lal Vs St. of Raj., (2015) 6 SCC
222.

10. U.O.I. Vs Ram Samujh & anr., (1999) 9
SCC 429.

11. U.O.I. Vs Shiv Shanker Kesari, (2007) 7
SCC 798.

12. Union of India Vs Rattan Malik @ Habul,
(2009) 2 SCC 624.

13. Kerala Vs Rajesh, (2020) SCC OnLine SC
81.

(Delivered by Hon'ble Ajit Singh, J.)

1. This criminal appeal has been
filed against the judgement and order
dated
24.1.2012
passed
by
Addl.
Sessions Judge (Ex. Cadre), Mahoba in
S.T. No. 115 of 2010 (Ram Het and
8 All. Ram Het & Ors. Vs. State of U.P.
543
others vs. State of U.P.), under Sections
302, 325 and 323 I.P.C., P.S. Charkhari,
district-Mahoba, whereby the accusedappellants have been convicted for the
offence under Section 302 IPC and
sentenced to life imprisonment with fine
Rs. 5,000/- and in default of payment of
fine, the appellants have to undergo six
months
rigorous
imprisonment;
convicted for the offence u/s 325 IPC and
sentenced to undergo three years R.I.
with fine of Rs. 1,000/- and in default of
payment of fine, the appellants have to
undergo one month R.I.; and also
convicted for the offence u/s 323 I.P.C.
and sentenced to undergo six months
rigorous imprisonment.

2. In brief, the case of the
prosecution starts from the FIR lodged by
complainant Smt. Puniya wife of Kamta,
resident of Mohalla-Soharyab, Kasba and
police
station-Charkhari,
districtMahoba,
alleging
therein
that
on
15.10.2010 at about 6:00 p.m. at the
doorstep of Nathu Prajapati, her husband
Kamta, son Hariram and daughter Jaidevi
and she herself were attacked with lathidanda by Ramhet and Rameshwar sons
of Maiyadeen Prajapati, residents of
Soharyab, Kasba-Charkhari and two
other persons namely son of Balli and
son of Jaggu, residents of Village-Salat.
It was also mentioned in that report that
her husband received injuries in his head
and became unconscious and she had
brought her injured husband to the police
station. The chick report of the FIR was
scribed by constable Dashrath Singh,
G.D. entries were made. Initially the
report was lodged under Sections 308
and 323 I.P.C. as Crime no. 1702 of 2010
and when death of the complainant's
husband had taken place, Section 304
I.P.C. was also added. After lodging of
the report the investigation started and
after completion of investigation, the
Investigating
Officer
had
submitted
chargesheet against four accused persons
namely, Ramhet and Rameshwar sons of
Maiyadeen
Kumhar,
Rajesh
and
Ramhetu son of Brij Lal. The cognizance
was taken by the Magistrate and
considering that the case was triable by
the Sessions Judge, it was committed to
the Court of session. The sessions court
charged the accused under Sections 302,
308 and 323 I.P.C. Accused Ramhet son
of Brij Lal was declared juvenile and his
case was separated and sent to the
Juvenile Justice Board and trial of three
accused
namely
herein,
Ramhet,
Rameshwar and Rajesh commenced.

3. The prosecution, in order to
prove its case, examined nine witnesses.
PW1 Puniya (informant), PW2 Jai Devi
daughter of the complainant, PW3 Hari
Ram son of the complainant, PW4
Dashrath Singh, PW5 S.I. Harbansh
Singh (Investigating Officer), PW6 D.K.
Sullere, PW7 Dr. Devendra Singh
Rajpoot, PW8 Anurag Purwar and PW9
Ram Sukh Verma.

4. The prosecution has examined
PW1 informant Puniya, wife of deceased
Kamta
who has
deposed
that
on
15.10.2010 at about 6:00 p.m., her
husband Kamta was sitting at the
doorstep of Nathu Prajapati. Rameshwar
asked Kamta that what was he seeing
('kya dekh rahe ho') and at the very time
accused persons namely, Rameshwar,
Ram Het sons of Bhaiyadeen, Rajesh and
Ram Het sons of Brij Lal ran towards the
deceased. They were armed with lathi.
Rameshwar assaulted her husband with
lathi on his neck, thereafter he hit on his
head, as a result of which deceased fell
544 INDIAN LAW REPORTS ALLAHABAD SERIES
down on the ground. Ram Het son of
Bhaiyadeen and Ram Het son of Brij
Mangal also attacked with lathies on the
head of deceased. Rajesh attacked on his
head with lathi. When the informant
along with her daughter Km. Jagdevi and
son Hari Ram reached at the spot to save
her husband then all the accused persons
also assaulted them with lathi-danda, as a
result of which PW-1 sustained injuries
in her head and also got fractured her
both hands. Her daughter Km. Jai Devi
and son Hari Ram also sustained injuries.
In this incident her husband succumbed
to the injuries on the spot. Thereafter she
got scribed the report of the incident by
Ramesh Pal Singh. When her husband
was brought to the hospital, he was
declared dead. Thereafter she went to the
police
station
to
lodge
the
first
information report, which was registered
at about 19:20 hours.

5.

In
her
cross-examination,
informant PW-1 Puniya has accepted that
before this incident there was no enmity
between her deceased husband and the
accused persons. Although she has also
deposed that her husband Kamta was
tried for the murder of Bhaiyadeen father
of Rameshwar along with one co-accused
Rakesh and was acquitted and that is why
the accused appellants were having
enmity. She has also deposed that her
residence is beside the house of accused
persons.

6. PW-2, Jai Devi, daughter of the
deceased has deposed that on 15.10.2010
at about 6:00 p.m. her father was sitting
at the doorstep of Natthu. She herself was
sitting along with her mother, then
Rameshwar, Ram Het, Rajesh and
another Ram Het, who were having lathi
in their hands came and started hurling
abuses at her father and asked as to why
was he looking at them (kya dekh rahe
ho). Her father did not reply and then, all
the accused persons started assaulting her
father. Rameshwar assaulted with lathi
on his neck and head, as a result of which
her father fell down on the ground.
Thereafter, Ram Het had made repeated
lathi blows on the head of the deceased
causing serious injuries on his person.
Rajesh attacked on his head and chest
with lathi and another Ram Het also
attacked on the neck, head and chest of
the deceased. The moment all the
accused persons were assaulting her
father, she along with her mother and
elder brother Hari Ram had reached on
the spot. The accused persons also
assaulted the PW-2, her mother and
brother with lathi-danda, causing serious
injuries to them. After Marpeet, the
accused persons ran away from the spot.
Her father succumbed to injuries on the
spot but he was rushed to the hospital
where he was declared brought dead. She
also reiterated the same facts in her
cross-examination.
In
her
crossexamination, PW-2 has accepted and
gave a vivid narration of the incident that
accused Ram Het had asked his father
why was he looking at him (Meri Taraf
Kya Dekh Rahe Ho) which led to the
altercation between Ram Het and her
father. In her cross-examination she
supported the prosecution case and
affirmed that she has given statement
before Daroga Ji that Rameshwar and
Ram Het sons of Bhaiyadeen had made
blows with danda on the head of her
father as well as Ram Hetu and Rajesh
assaulted with danda on his back and also
beaten her mother. She has deposed that
due to the assault made by accused
persons with lathi upon her father, her
father had fallen on the ground but her
8 All. Ram Het & Ors. Vs. State of U.P.
545
mother did not. It has also been stated in
her statement that at the time of the
quarrel her uncle Kadorey and her
father's friend Ramesh Pal Vakeel Sahab
came up on the spot. Then, Ramesh Pal
took her injured father, her mother and
her along with Hari Ram in a Tempo to
the government hospital and she came
back from the hospital after eight days.
She had denied that she was tutored by
anyone to give false evidence against the
accused persons. She also denied the
suggestion that she was not present at the
place of incident. She has stated that
blood stains of the injuries of her father
were seen by her on the Chabutara of
Natthu Prajapati. However, she has
deposed that she could not count as to
how many lathi blows were made by the
accused persons on her father as they all
were assaulting together. She has also
denied that her father had taken liquor on
the date of incident or her father used to
consume liquor outside. About the time
and place of the incident or about the
involvement of the accused appellants,
her statement remained unshaken in the
cross-examination.

7. PW-3 Hari Ram son of the
deceased has deposed that at around 6
o'clock in the evening, the incident had
taken place in front of the house of
Natthu about ten months ago. He was
sitting with his father on the platform
(chabutra) of Natthu. At that time, Ram
Het, Rameshwar, Rajesh and another
Ram Het who were carrying lathies in
their hands came and asked his father
why was he looking at them (kya dekh
rahe ho). Thereafter, accused Ram Het,
Rameshwar, Ram Hetu and Rajesh
started assaulting his father with lathidanda. All the accused persons had given
lathi blows on the head of his father, as a
result of which he became unconscious
and fell down on the ground and died on
the spot. When the accused persons were
assaulting his father, he along with his
mother and and sister Jai Devi ran to save
him. He also stated that this incident was
witnessed by his mother and sister.
Thereafter, police reached and took his
father to the hospital, who had died. He
also sustained injuries on his shoulder.
The accused persons had also assaulted
him with lathis and his sister too
sustained injuries. He has also deposed
that his mother was also assaulted by the
accused persons with lathis on her head.
PW-3 in his cross-examination has
accepted that the incident had taken place
at the spur of moment and the accused
appellants were not having any weapons
in their hand at the very beginning of the
quarrel and they brought the same
thereafter, which reads as under:-

"जब हम ल ग बैठे थे अनभयुक्त
रामेश्वर अपिे घर से निकलकर ित्थ के चब र्तरे
से ह कर जा रहा था । र्तब हमारे नपर्ता जी िे
कहा नक हमारी र्तरफ क्या देख रहे ह । र्त
इस पर व गली गलौज देिे लगा और मेरे नपर्ता
िे उसे गली देिे से मिा नकया था और मेरे
नपर्ता जी िे गली िहीों दी थी। जब ये बार्तचीर्त
मेरे नपर्ता से ह रही थी र्त रामेश्वर हाथ में
कुछ िहीों नलए था। बार्तचीर्त के बाद हमारे
नपर्ताजी व रामेश्वर में गुत्था गुत्थी िहीों हुई थी ।
नफर रामेश्वर अपिे घर पर वापस चला गया था
। नफर र्तुरोंर्त रामेश्वर लाठी लेकर घर से आया
था । नफर कहा नक चार ल ग आ गए थे । जब
मुन्धिमािगण चब र्तरे पर आये र्त मेरी माँ व
बनहि जय देवी घर के अोंदर थी। नफर हमारे
नपर्ता जी क मारा पीटा गया । मेरे नपर्ता जी
मारपीट के बाद मर गए थे । और बेह ि िहीों
हुए थे । मेरी माँ व बहि जय देवी बचािे दौड़
कर आयी थी । मैं व मेरे नपर्ता जी नचिाये
546 INDIAN LAW REPORTS ALLAHABAD SERIES
िहीों थे । मेरी माँ व बहि स्वयों घटिा देखकर
मौके पर आयी थी।"

8. PW-4, Constable Dashrath
Singh, has deposed that on 15.10.2010 he
was posted as head Constable at police
station-Charkari and on that day he
prepared the chik FIR on the basis of the
complaint filed by one Puniya. He has
proved that chik FIR as Ext. Ka-1. He
further deposed that on that day he had
mentioned the institution of this case at
rapat no. 44, which is marked as Ext. Ka3.

9. PW6 Dr. D.K. Sullere, Medical
Officer, had conducted the postmortem of
dead body of the deceased Kamta on
16.10.2010. He found the following antemortem injuries on the body of the deceased :-

(i) Lacerated wound of 4cm x
2cm x bone deep right parietal region of
scalp 5cm above from right ear with
fractured underlying bone right parietal.

(ii) Lacerated wound of 4.5cm
x 2cmx bone deep at right occipital
region of scalp.

(iii) Lacerated wound 6cm x
2cm at middle of scalp 13cm above from
left ear.

(iv) Lacerated wound 3cm x
2cm muscle deep at post oricular region
at face on right side.

(v) Abraded contusion 4cm x
2cm at back of right shoulder 3cm below
from lateral end of right clavicle.

(vi) Contusion 19cm x 3cm at
back of chest on right side just below
spine of right scapula.

(vii) Contusion 13cm x 3cm at
back of chest on right side 3cm below
from injury no. 6.

(viii) Contusion 9cm x 3cm at
back of chest on right side 4cm below
from injury no. 7.

(ix) Contusion 8cm x 3cm at
back on right side 5cm below from injury
no. 8.

(x) Abrasion 4cm x 3cm at
lower part of abdomen just above
anterior-superior iliac spine.

(xi) Abraded contusion 4cm x
3cm at left knee just below patella.

(xii) Abraded contusion 5cm x
3cm at left leg 6cm below from injury
no. 11.

10. According to the postmortem
report, the cause of death of the deceased
was heamorrhage and shock due to
antemortem injuries.

11. PW-7 Dr. Devendra Singh
Rajpoot, Medical Officer, had performed
medico-legal examination of injured Puniya
on15.10.2010 at about 8:05 p.m. and
prepared medico-legal injury report. He
found four injuries on the body of Puniya :-

(i) A lacerated wound of 4 x 1
cm x bone deep on left parietal region of
scalp 14 cm above from tragus of left ear.

(ii) A contusion of 5 x 2cm on
top of right shoulder and upper arm.

(iii) A contusion of 3x2cm on
back of right wrist surrounded by
swelling in the area of 8x5cm.
8 All. Ram Het & Ors. Vs. State of U.P.
547

(iv)
Abraded
contusion
of
2x2cm on back of left forearm 5cm
above from the wrist joint surrounded by
swelling of 6x4cm.

12. According to him, all the
injuries were caused by hard and blunt
object and were fresh in duration. Injury
no. 2 is simple in nature. Injury nos. 1,3
and 4 were kept under observation.

13. PW-9, S.I. Ram Sukh Verma,
was the Investigating Officer in this case,
who had proved the inquest report, spot
inspection report and stated in his
testimony that he had visited the spot and
recorded the statements of witnesses,
collected
evidences
and
thereafter,
charge sheet was submitted by him,
which is marked as Ext. Ka- 21. He had
proved documentary evidence like chik
FIR etc.

14. The Court after prosecution
evidence examined the accused under
section 313 Cr.P.C. and the accused
submitted that they have been falsely
implicated in the present case due to
enmity. The accused-appellants have
produced two persons namely, Kallu son
of Abdul and Dhanpat son of Dhunnu as
DW-1 and DW-2.

15. DW-1 Kallu has deposed that
the incident had taken place fifteen
months ago. It was 2:30 to 3:00 o'clock
in the afternoon. At that time he was in
his house. Quarrel was going outside the
door of Kamta. All the accused persons
who were quarreling with Kamta, were
outsiders. Kamta was in a drunken state.
All the accused persons were demanding
wages from Kamta who was a contractor
of bricks and all the accused persons
were his labourers. Kamta told them that
he had no money and he would pay them
later whenever he have the money, he
would pay. Kamta was abusing them.
This quarrel went on for 10-15 minutes.
Thereafter, all unknown persons started
assaulting Kamta with lathi-danda, as a
result of which he sustained injuries. This
incident had taken place at the door of
Kamta. In the injured condition Kamta
ran towards Chabutra of Natthu and fell
down there. After committing offence, all
unknown persons fled away from the
spot. He further deposed that at that time
Puniya, wife of Kamta reached behind
the house of Natthu Prajapati and after
catching the accused persons, asked their
names. Accused persons in their defence
also assaulted her with lathi-danda. He
also deposed that he along with his wife
reported the matter to the police,
thereafter police reached at the spot. He
deposed that at the time of incident,
Rameshwar, Ram Het and brother-in-law
of Rameshwar were not present there. He
also deposed that Rameshwar and others
had not committed any offence and they
have been falsely implicated.

16. DW-2 Dhanpat has deposed that
the houses of Natthu Prajapati, Kamta
son of Tiriya, Rameshwar and Ram Het
sons of Bhaiyadeen are across the road.
He deposed that at about fifteen months
ago, Kamta was murdered. At about 2:30
to 3:00 o'clock in the afternoon he saw
that 3-4 unknown persons came and they
were demanding money from Kamta and
Kamta was abusing them in drunken
condition and he was not giving them
their money. Thereafter, all the persons
started assaulting Kamta with lathi-danda
in front of his house and after that Kamta
ran away in injured condition and fell
down on 'chabutra' of Natthu. After
hearing the noise, Puniya, wife of Natthu
548 INDIAN LAW REPORTS ALLAHABAD SERIES
reached there and caught the assailants
and asked their names, then all unknown
persons assaulted her too with lathidanda. After committing the offence, all
unknown persons ran away. He also
deposed that he had not seen the son and
daughter of Kamta at the place of
occurrence.
He
also
deposed
that
Rameshwar, Ram Het and his brother-inlaw (saale) were not the assailants.

17. After examining the entire
evidence, the trial court convicted the
accused-appellants by the impugned
judgement of conviction. Aggrieved by
the said judgement, the present appeal
has been preferred by the accused
persons.

18. We have heard Sri Vinod
Kumar,
learned
counsel
for
the
appellants, Sri L.D. Rajbhar and Sri Prem
Shankar Mishra, learned A.G.A. for the
State.

19. The submissions of learned
counsel for the appellants are :-

(i) All the witnesses are family
members of the deceased and they are
thus interested and partisan witnesses and
their
evidence
is
unreliable.
No
independent witness has been examined
by the prosecution to prove its case.

(ii)
There
is
contradiction
regarding place of occurrence as the site
plan shows different place of incident
whereas the witnesses have deposed
different place of occurrence in their
statements before trial court.

(iii) It is contended that initially
the matter was registered under Sections
323 and 304 I.P.C. but the chargesheet
was submitted under Sections 304, 308,
325 and 323 I.P.C. but the trial court has
framed charge under Section 302 instead
of Section 304 I.P.C.

(iv) In any case, there was no
intention on the part of the accused
persons to kill the deceased and there
was no premeditation or preplanning on
the part of the appellants. The incident
had taken place due to sudden altercation
between the deceased and accused at the
spur of moment and the accused persons
have not acted in a cruel manner.

20. In support of his contentions the
learned counsel for appellants has placed
reliance upon the judgment of the Apex
Court pronounced in the case of Subhash
Gangadhar
Jadhav
Vs.
State
of
Maharashtra, 2018 (4) Crimes (SC)
569: Criminal Appeal No. 1576 of 2018.

21. So far as the argument of the
learned counsel for the appellants that the
prosecution
witnesses
are
interested
witnesses and they are closely related to the
deceased, it is well settled that a natural
witness may not be levelled as an interested
witness. Interested witnesses are those who
want to derive some benefit out of the
litigation/case. In this case, the circumstances
reveal that all the witnesses were naturally
present at the place of the occurrence and had
witnessed the incident. Their deposition
cannot be discarded merely on the ground of
being closely related to the deceased.
Generally close relations of the victim are
unlikely to falsely implicate others in place of
real culprits and the mere relationship of the
witnesses with the deceased is not sufficient
to discredit their evidence.

22. Relationship is not sufficient to
discredit a witness unless motive to give
8 All. Ram Het & Ors. Vs. State of U.P.
549
false evidence to spare the real culprit
and falsely implicate an innocent person
is alleged and proved. A witness is
interested only if he derives benefit from
the result of the case or has hostility to
the accused. In the case of State of
Punjab Vs Hardam Singh, 2005,
S.C.C. (Cr.) 834, it has been held by the
Apex Court that ordinarily the near
relations of the deceased would not
depose falsely against innocent persons
so as to allow the real culprit to escape
unpunished, rather such a witness would
always try to secure conviction of real
culprit. In the case of Dilip Singh Vs
State of Punjab, A.I.R. 1983, S.C. 364,
it was held by the Supreme Court that the
ground that the witnesses being close
relatives and consequently being the
partition witnesses would not be relied
upon, has no substance. Similar view has
been taken by the Supreme Court in
Harbans Kaur V State of Haryana,
2005, S.C.C. (Crl.) 1213; and in State of
U.P. vs. Kishan Chandra and others,
2004 (7), S.C.C. 629. The contention
about
branding
the
witnesses
as
'interested witness' and credibility of
close relationship of witnesses has been
examined by the Apex Court in number
of cases. A close relative, who is a very
natural witness in the circumstances of a
case, cannot be regarded as an 'interested
witness', as held by the Supreme Court in
Dalbir Kaur v. State of Punjab, AIR
1977 SC 472. The mere fact that the
witnesses were relations or interested
would not by itself be sufficient to
discard their evidence straight way unless
it is proved that their evidence suffers
from serious infirmities which raises
considerable doubt in the mind of the
Court. Similar view was taken in case of
State of Gujrat v. Naginbhai Dhulabhai
Patel, AIR 1983 SC 839.

23. In the present case although it is
correct that PW-1, Puniya, is wife of the
deceased, PW-2, Km. Jai Devi, is
daughter of the deceased and PW-3, Hari
Ram, is son of the deceased but they
appear to be natural witnesses of the
incident. The alleged incident has taken
place in the broad day light in the
evening near their house. In such
scenario the presence of these witnesses
at the place of occurrence appears to be
quite
natural
and
probable.
These
witnesses have been subjected to cross
examination but no such adverse effect
has emerged to render the presence of
these witnesses at the scene of offence
doubtful. The testimony of PW-1 is
amply corroborated by the testimony of
PW-2
and
PW-3
and
their
oral
testimonies are fully in consonance with
medical evidence.

24. A close scrutiny of the evidence
shows that PW-1 who has reported this
matter to the police has specifically
deposed in her statement that her
husband was attacked by accused persons
and she along with her children was also
attacked by all the accused persons.
Evidence of PW-1 finds corroboration
with the evidence of the PW-2, Jai Devi,
who
has
specifically
narrated
the
prosecution version that her father was
attacked by the accused persons and she
along with her mother and brother was
also attacked by them. PW-3, Hari Ram,
had also supported the prosecution
version and he has specifically said that
when he was sitting along with his father
at the Chabutara of Natthu, then, accused
persons namely Ramhet, Rameshwar,
Rajesh and Ramhetu came there carrying
lathi-dandas in their hands and said to his
father, "what are you looking?" (Kya
dekh rahe ho). This witness has also
550 INDIAN LAW REPORTS ALLAHABAD SERIES
specifically stated that he also suffered
injuries along with his mother and sister.
The oral testimony of PW-1, PW-2 and
PW-3 is supported by medical evidence.

25. On making a close scrutiny of
the oral evidence of the witnesses, it is
established beyond reasonable doubt that
all the witnesses were present at the place
of
the
occurrence
and
they have
witnessed
the
incident
and
their
statements are consistent about the
narration of the incident, which are also
supported by the medical evidence. So
the contention of learned counsel for the
appellants has no force.

26. Now, we take into consideration
the contention of the learned counsel for
appellants that the place of incident
narrated by the prosecution witnesses is
different as shown in the site plan.
Regard being had to that aspect of the
matter, we have gone through the
material available on record and after
having given a thoughtful consideration,
it reveals that the incident took place on
the 'Chabutra' of Natthu, which was in
front of the house of Natthu. On the other
hand, the Investigating Officer has shown
the place of incident at point 'X' marked
in the site plan, which is not the
'Chabutra' of Natthu. After considering
this
aspect
and
considering
the
statements of witnesses, it is apparent
that the incident had taken place when
the deceased was sitting in front of house
of Natthu. PW-1 Puniya has specifically
stated in her cross-examination that the
incident had taken place when her
husband was sitting at the 'Chabutra' of
Natthu. She further stated in her crossexamination that the entire incident had
taken place at the 'Chabutra' of Natthu.
The oral testimony of PW-1 regarding
place of occurrence finds corroboration
from the evidence of PW-2 Jai Devi, who
in her cross-examination has stated that
the incident had taken place when her
father was sitting in front of the house of
Natthu. PW-3 Hari Ram has also
specifically stated in his evidence that the
incident had taken place in front of house
of the Natthu when this witness was
sitting along with his father at the
'Chabutra' of Natthu and the site plan also
shows that 'Chabutra' of Natthu was lying
at
place
'A'.
Deceased
became
unconscious at the place which is marked
as 'A' in the site plan and this place is in
front of house of Natthu. Thus if there is
slight discrepancy in the site plan but as
both the places where the accused first
started beating the deceased and where
the deceased was lying unconscious are
nearby places as per the site plan itself
and when the evidence of prosecution
witnesses is quite natural and reliable,
slight shifting the place of occurrence by
the Investigating Officer is of much
relevance.

27. After examining the entire
evidence, we are of the opinion that
statements of witnesses, PW-1, PW-2
and PW-3 have specifically shown the
incident to have taken place in front of
house of Natthu at the 'Chabutra' of
Natthu and the oral evidence is totally
consistent and they have not changed the
place of incident and if there is minor
variation in the site plan about the place
of incident, it is not of much relevance
and the credibility of the prosecution
witnesses
cannot
be
doubted,
the
argument of learned counsel for the
appellant is not tenable, hence rejected.

28. Thereupon, it was vehemently
submitted by the learned counsel for the
8 All. Ram Het & Ors. Vs. State of U.P.
551
appellants that if prosecution evidence is
accepted as such, at the most, the accused
persons can be convicted under Section
304 IPC and they should not have been
convicted by the trial court under Section
302 IPC as the incident had taken place
suddenly without any premeditation at
the spur of the moment. The accused
persons had no intention to kill the
deceased and they have not acted in a
cruel manner.

29. We have given a thoughtful
consideration to the said argument and it
emerges from the evidence led by the
prosecution that the incident had taken
place suddenly at the spur of the moment
without any preplanning or premeditation
beginning with a simple altercation
between the deceased and the accused
persons. It was just a verbal altercation as
when the accused persons were passing
by the deceased, the deceased was staring
at them and upon asking by the accused
persons as to why he was staring at them
(Woh kyoan dekh raha hai), no reply was
given, the accused persons got irritated
and beaten the deceased in the hear of
passion.

30. Before proceeding further and
determining as to whether the conviction
of appellants ought to have been done
under Section 304 IPC instead of Section
302 IPC, it

"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 selfcontrol
by
grave
and
sudden
provocation, causes the death of the
person who gave the provocation or
causes the death of any other person by
mistake or accident."

The above Exception is subject
to the following provisos:-

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

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

Thirdly. - That the provocation
is not given by anything done in the
552 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 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.

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."..

31. In case of Surain Singh Vs.
State of Punjab, the Hon'ble Apex Court
has held in Para No. 7 as thus:-

7). Exception 4 to Section 300
of the IPC applies in the absence of any
premeditation. This is very clear from the
wordings of the Exception itself. The
exception contemplates that the sudden
fight shall start upon the heat of passion
on
a
sudden
quarrel.
The
fourth
exception to Section 300 IPC covers acts
done in a sudden fight. The said
Exception
deals
with
a
case
of
provocation not covered by the first
exception, after which its place would
have
been
more
appropriate.
The
Exception is founded upon the same
principle, for in both there is absence of
premeditation. But, while in the case of
Exception 1 there is total deprivation of
self-control, in case of Exception 4, there
is only that heat of passion which clouds
men's sober reason and urges them to
deeds which they would not otherwise do.
There is provocation in Exception 4 as in
Exception 1, but the injury done is not
the
direct
consequence
of
that
provocation. In fact, Exception 4 deals
with cases in which notwithstanding that
a blow may have been struck, or some
provocation given in the origin of the
dispute or in whatever way the quarrel
may have originated, yet the subsequent
conduct of both parties puts them in
respect of guilt upon an equal footing. A
"sudden
fight"
implies
mutual
provocation and blows on each side. The
homicide committed is then clearly not
traceable to unilateral provocation, nor
could in such cases the whole blame be
placed on one side. For if it were so, the
Exception more appropriately applicable
would be Exception 1. There is no
previous deliberation or determination to
fight. A fight suddenly takes place, for
which both parties are more or less to be
blamed. It may be that one of them starts
it, but if the other had not aggravated it
by his own conduct it would not have
taken the serious turn it did. There is
then
mutual
provocation
and
aggravation, and it is difficult to
apportion the share of blame which
attaches to each fighter. The help of
Exception 4 can be invoked if death is
caused (a) without premeditation, (b) in
a sudden fight, (c) without the offenders
having taken undue advantage or acted
in a cruel or unusual manner, and (d) the
fight must have been with the person
killed. To bring a case within Exception 4
8 All. Ram Het & Ors. Vs. State of U.P.
553
all the ingredients mentioned in it must
be found. It is to be noted that the "fight"
occurring in Exception 4 to Section 300
IPC is not defined in IPC. It takes two to
make a fight. Heat of passion requires
that there must be no time for the
passions to cool down and in this case,
the parties had worked themselves into a
fury on account of the verbal altercation
in the beginning. A fight is a combat
between two and more persons whether
with or without weapons. It is not
possible to enunciate any general rule as
to what shall be deemed to be a sudden
quarrel. It is a question of fact and
whether a quarrel is sudden or not must
necessarily depend upon the proved
facts of each case. For the application of
Exception 4, it is not sufficient to show
that there was a sudden quarrel and
there was no premeditation. It must
further be shown that the offender has
not taken undue advantage or acted in a
cruel or unusual manner. The expression
"undue advantage" as used in the
provision means "unfair advantage."

(emphasis supplied)

32. In furtherance to the above
discussion, it is relevant to mention here
that while drawing a distinction between
Section 302 and Section 304 I.P.C., the
Apex Court in State of A.P. Vs.
Rayavararapu Punnayya and Another
reported in 1976 (4) SCC 382, has held
in para - 12 and 21 as under:-

"12. In the scheme of the Penal
Code, "culpable homicide" is genus and
"murder" its specie. All "murder" is
"culpable homicide" but not vice- versa.
Speaking generally, "culpable homicide"
sans "special characteristics of murder",
is "culpable homicide not amounting to
murder". For the purpose of fixing
punishment, proportionate to the gravity
of this generic offence, the Code
practically recognises three degrees of
culpable homicide. The first is, what may
be called, "culpable homicide of the first
degree". This is the greatest form of
culpable homicide, which is defined in
Section 300 as "murder". The second
may be termed as "culpable homicide of
the second degree". This is punishable
under the first part of Section 304. Then,
there is "culpable homicide of the third
degree".