# Ram Shankar & Ors. (In Jail) v. State of U.P

- **Citation:** (2019) 2 ILRA 342
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-24
- **Case number:** THE HON'BLE RAJ BEER SINGH J. Criminal Appeal No. 535 of 1987
- **Bench:** Pritinker Diwaker
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-shankar-ors-in-jail-v-state-of-u-p-44741
- **Pages:** 12

## Headnote

A. Indian Penal Code, 1860 - Section 300
IPC, Exception 4, can be invoked if death
is caused (a) without premeditation, (b)
in a sudden fight, (c) without offenders
having taken undue advantage, (d)
accused had not acted in a cruel or
unusual manner. (Para 21)

Doctrine of grave and sudden provocation
depends on the facts of each case; it cannot
be universally applied. (Para 21)

It is a question of fact and whether a quarrel
is sudden or not must necessarily depend
upon the proved facts of each case (Exception
4 of section 300 IPC). (Para 21)

Criminal Appeal partly allowed (E-2)

List of cases cited: -

## Text

342 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Let a copy of this judgment be
sent to the concerned trial Court for
compliance.
----------

(2019)10ILR A 342

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH J.

Criminal Appeal No. 535 of 1987

Ram Shankar & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri S.K. Dubey, Sri S.N. Singh, Sri Anurag
Shukla, Sri S.K. Mishra.

Counsel for the Opposite Party:
Sri Amit Sinha, A.G.A.

A. Indian Penal Code, 1860 - Section 300
IPC, Exception 4, can be invoked if death
is caused (a) without premeditation, (b)
in a sudden fight, (c) without offenders
having taken undue advantage, (d)
accused had not acted in a cruel or
unusual manner. (Para 21)

Doctrine of grave and sudden provocation
depends on the facts of each case; it cannot
be universally applied. (Para 21)

It is a question of fact and whether a quarrel
is sudden or not must necessarily depend
upon the proved facts of each case (Exception
4 of section 300 IPC). (Para 21)

Criminal Appeal partly allowed (E-2)

List of cases cited: -
1. St. of A.P. Vs Rayavarapu Punnayya & anr.
1977 AIR 45 1976 SCC (4) 382
2. Budhi Singh Vs St. of H. P. (2012) 13 SCC 663
3. Kikar Singh Vs St. of Raj. 1993 SCC (4) 238
4. Surain Singh Vs St. of Panj. (Criminal appel
decided by 10.04.2017)
5. Ranjitham Vs Basavaraj (2012) 1 SCC 414
6. Ankush Shivaji Gaikwad Vs St. of Mah.
(2013) 6 SCC 770
7. Kumaran Vs St. of Ker. & anr. (criminal
appel decided by 05.05.2017)

(Delivered by Hon'ble Pritinker
Diwatker, J.)

1. This appeal arises out of impugned
judgment and order dated 17.2.1987 passed
by Vth Additional Sessions Judge, Basti in
Sessions Trial No.222 of 1984, convicting
accused no.5-Tirath, accused no.6-Laxmi,
accused no.7-Ashok, accused no.8-Ram
Bhabhuti, accused no.9-Bhadeshwar and
accused no.10-Parmatma under Sections
147, 323 read with Section 149 and Section
302 read with Section 149 of IPC and
sentencing them to undergo one month's RI;
three months' RI and imprisonment for life
respectively. Further, accused no.1-Ram
Shankar, accused no.2-Onkar, accused no.3Mahadeo and accused no.4-Rajeshwar have
been convicted under Sections 148, 323 read
with Section 149 and Section 302 read with
Section 149 of IPC and sentenced to undergo
one year's RI, three months' RI and
imprisonment for life respectively.

2. As per prosecution case, there
were two groups in the village, one was of
'Pandit' community, whereas the other
2 All. Ram Shankar & Ors. Vs State of U.P.
343
group was of 'Harijan' community. As the
later group had stopped working for the
first group, there was a dispute between
the two and the proceedings under Section
107 of Cr PC were initiated against both
the groups. Another outfall of the said
dispute was that the second group was not
allowed to move freely in the village by
the first group nor they were permitted to
fetch water from the Well. It is said that
on 29.9.1982, deceased Shiv Raj, who
belonged to second group, was making
some arrangement to have separate Hand
Pump and while doing so, he had gone to
the well of accused Ram Shankar and
there some verbal exchange had taken
place. Soon thereafter, accused persons
reached to opposite group carrying
different weapons with them and upon
exhortation being made by first accused
Ram Shankar, they caused injuries to Shiv
Raj. When Piyare (PW-2) and Hanuman
(PW-3) tried to intervene in the matter,
they were also subjected to injuries. In the
said incident, accused Laxmi and Ashok
also
suffered
minor
injuries.
After
sustaining injuries, Shiv Raj expired at the
place of occurrence itself.

3. On the basis of written report
Ex.Ka.1 lodged by (PW-1) Ram Dawan,
brother of the deceased, on 29.9.1982 FIR
Ex.Ka.2 was registered at 9:15 am against
ten accused persons, namely, Ram Shankar,
Onkar, Mahadeo, Rajeshwar, Tirath, Laxmi,
Ashok, Parmatma, Bhadeshwar and Ram
Bhabhuti under Sections 147, 148, 149, 323,
324, 504 and 302 of IPC.

4. Injured Hanuman (PW-3) was
medically examined vide Ex.Ka.8 and the
following injuries were noticed by the Doctor:

"(i) Lacerated wound - 5.52 x 1
cm x bone deep on the left side of Head,
vertically placed 9 cm above left ear.
Bleeding present.

(ii) LW - 4 cm x 0.4 cm x muscle
deep on the Rt. side of Head, 5 cm above
Rt eyebrow. Bleeding present.

(iii) Contusion swelling - 6 cm x
4 cm on the Rt. side of face, just below the
lower eyelid, Below canthus."

Other injured Piyare (PW-2)
was also medically examined, vide
Ex.Ka.9 and the following injuries were
noticed by the Doctor:

"(i) LW - 5.52 x 0.52 cm x
muscle deep, on the left side of Head, 9
cm above eyelid. Bleeding present.

(ii) Traumatic Swelling - 12 cm
x all round Rt. forearm, 4 cm below the
elbow.

(iii) Traumatic Swelling - 10 cm
x all around Rt. forearm, 11 cm below
injury no.(ii)."

5. Inquest on the dead body of the
deceased was conducted vide Ex.Ka.6 on
29.9.1982 and the body was sent for
postmortem which was conducted on
30.9.1982, vide Ex.Ka.7 by (PW-5) Dr A
K Mehrotra.

As
per
Autopsy
Surgeon,
following injuries were noticed on the
body of the deceased:

1. Lacerated wound 5 cm x 1.5
cm x bone deep on back of skull 2 cm
front of site of choti (pksVh). Obliquely
present.

2. Lacerated wound 5.5 cm x 1.5
cm x bone deep on Rt parieto temporal
region of skull 6 cm above right ear.
Obliquely present.

3. Incised wound with clear cut
margins (as seen with lens) on right side
344 INDIAN LAW REPORTS ALLAHABAD SERIES
front of skull extending to forehead - size
5 cm x 1 cm x bone deep. Flesh of skull
bone is seen cut through the wound.

4. Lacerated wound - 3.5 cm x
0.6 cm x bone deep on dorsum of the
middle finger of left hand.

5. Contusion 9 cm x 2.5 cm
outer front of right shoulder.

6. Multiple contusion on area of
15 cm x 12 cm on back of lower half of
the side of chest area. Biggest size of
contusion is 9 cm x 2.4 cm and smallest of
size 6 cm x 1.6 cm.

7. Contusion - 12 cm x 2.5 cm
on back of upper inner part of right thigh.

8. Contusion - 7.8 cm x 2 cm on
back of left shoulder.

9. Contusion 9 cm x 2.2 cm on
the back of middle 1/3 of left leg."

Cause of death of the deceased
was shock, haemorrhage and coma as a
result of ante-mortem injuries.

6. While framing charge, the trial
Judge has framed charge against accused
Tirath,
Laxmi,
Ashok,
Parmatma,
Bhadeshwar and Ram Bhabhuti under
Sections 147, 302/149 and 323/149 of
IPC, whereas against accused Ram
Shankar, Onkar, Mahadeo and Rajeshwar
charge was framed under Sections 148,
302/149 and 323/149 of IPC.

7. So as to hold accused persons
guilty, the prosecution has examined eight
witnesses, whereas one defence witness
has also been examined. Statements of
accused persons were also recorded under
Section 313 of Cr PC in which, they
pleaded
their
innocence
and
false
implication.

8. By the impugned judgment, the
trial Judge has convicted and sentenced
the accused persons as mentioned in para
1 of this judgment. During pendency of
the present appeal, accused no.7-Ashok
has been declared juvenile, whereas
accused no.3-Mahadeo, accused no.5Tirath, accused no.8-Ram Bhabhuti and
accused no.10-Parmatma have expired
and the appeal in their respect has already
been abated. At present, this appeal is
confined in respect of accused no.1-Ram
Shankar, accused no.2-Onkar, accused
no.4-Rajeshwar,
accused
no.6-Laxmi,
accused no.7-Ashok and accused no.9Bhadeshwar.

9. Counsel for the appellants
submits:

(i) that the FIR is ante-dated.

(ii) that motive part has not been
proved by the prosecution.

(iii) that (PW-1) Ram Dawan,
(PW-2) Piyare and (PW-3) Hanuman are
not the reliable witnesses.

(iv) that it is the victim party
who was aggressor and, therefore, the
accused persons had every right to save
themselves from the marpeet started by
the victim party. Learned counsel submits
that the accused persons have caused
injury in their self-defence and thus, they
cannot be convicted.

(v) that under no stretch of
imagination, offence under Section 302 of
IPC is made out against the accused
persons and, at best, they are liable to be
convicted under Section 304 Part II of
IPC. It has been argued that the incident
occurred in the year 1982, i.e. 37 years
back, some of the accused have already
expired, remaining accused persons are
2 All. Ram Shankar & Ors. Vs State of U.P.
345
willing to compensate the victim's family
and, therefore, a lenient view be taken
while awarding sentence to them.

10. On the other hand, supporting
the impugned judgment and order, it has
been argued by the State Counsel that the
conviction of the accused persons is in
accordance with law and there is no
infirmity in the same. He submits that
(PW-2) Piyare and (PW-3) Hanuman are
the injured eye-witnesses and they have
duly supported the prosecution case. The
prosecution case has been further proved
by the medical report of (PW-2) Piyare
and (PW-3) Hanuman and likewise,
postmortem report of the deceased. State
counsel further submits that complainant
party was not aggressor and in the
evidence, it has come that it is the accused
persons who were aggressor. He submits
that right of private defence of a person or
property is not available to the accused
persons once the eye-witnesses have
stated that it is they who caused injury
first. He submits that even otherwise, the
accused persons have exceeded their right
and, therefore, it cannot be said that they
are not liable to be convicted for any
offence.

11. We have heard learned counsel
for the parties and perused the record.

12. (PW-1) Ram Dawan, is a brother
of the deceased and lodger of FIR, Ex.
Ka.2. While supporting the prosecution
case, he has stated that on the date of
incident at about 8:00 am, deceased had
gone to fetch water from the well of
accused no.1 Ram Shankar. However, he
was not allowed to do so and was abused
by Ram Shankar. He states that deceased
Shiv Raj returned to his place after
abusing the other group. He further states
that soon thereafter, all the accused
persons reached there carrying different
weapons with them and upon being
exhorted by accused no.1 Ram Shankar
and accused no.8-Ram Bhabhuti, other
accused persons chased the deceased Shiv
Raj and after surrounding him, caused
number of injuries to him. To save Shiv
Raj, (PW-2) Piyare and (PW-3) Hanuman
and other persons rushed to him, however,
they too had suffered injuries. After
sustaining injury, Shiv Raj expired at the
place of occurrence itself. In paragraph
no.3, he has stated that there were two
groups in the village, one belongs to the
appellants party, whereas the other was of
Harijan group and that there was tension
in the village over payment of wages to
the second group after which, proceedings
under Section 107 Cr PC were also
initiated.
In
the
lengthy
crossexamination, this witness has remained
firm and has reiterated as to the manner in
which the incident occurred.

13. (PW-2) Piyare, is an injured witness
to the incident, has duly supported the
prosecution case and his statement is almost
similar to that of (PW-1) Ram Dawan. He
states that in the local body election, one
Jagdev, from the side of accused persons,
defeated one Ram Sahai Chaudhary. He has
further stated that on the date of incident when
the accused persons were cutting their crops, it
is his group who made assault and from the
side of accused, Laxami and Ashok suffered
injuries and when the accused persons were
trying to save themselves, from the side of
complainant some persons suffered injuries.
He further states that in a cross case, he has
also been joined as an accused.

14. (PW-3) Hanuman, is the other
injured eye-witness to the incident, has
also duly supported the prosecution case.
346 INDIAN LAW REPORTS ALLAHABAD SERIES

15. (PW-4) Wakar Husain, is the
Investigating Officer, has duly supported
the prosecution case.

16. (PW-5) Dr. A.K. Mehrotra, did
the postmortem of the deceased vide Ex.
Ka. 7.

17. (PW-6) Lal Bahadur Singh and
(PW-7) Gomti Prasad assisted during
investigation.

18. (PW-8) Dr. G.P. Agarwal, did
MLC of (PW-2) Piyare and (PW-3)
Hanuman, vide Ex. Ka. 8 and 9
respectively.
He
further
states
that
accused Laxmi and Ashok had also
suffered minor injuries.

19. According to (DW-1) Dr. S.K.
Srivastava, accused Laxmi has suffered
fracture of metacarpel.

20. Close scrutiny of the evidence
makes it clear that there were two groups
in the village, Chapiya Majhariya, one
headed by the accused persons and the
other was of Harijans, of which deceased
Shiv Raj was a member. There was a
dispute in the village over payment of
wages to the second group and the legal
proceedings were also initiated against
both the parties. On the date of incident,
deceased Shiv Raj had gone to fetch water
from the well of accused no.1-Ram
Shankar and they abused each other. Soon
thereafter, accused persons apprehended
Shiv Raj and there was an incident of
marpeet between two groups. In the
incident, from the second group, Shiv Raj
(deceased), Piyare (PW-2) and Hanuman
(PW-3) suffered injuries, whereas from
the side of accused persons, accused
Laxmi and Ashok also suffered injuries.
The incident has been witnessed by (PW1) Ram Dawan, (PW-2) Piyare and (PW3) Hanuman and all three witnesses have
duly supported the prosecution case and
we have no reason to disbelieve their
statements. Likewise, injured Laxmi and
Ashok had also suffered injuries and their
injuries have also been admitted by the
doctor who treated them.

Considering the statements of
witnesses, complicity of the accused
persons in commission of offence has
been duly proved and thus, they are liable
to be convicted for the murder of Shiv Raj
and injuries to Hanuman and Piyare.

21. The next question which arises for
consideration of this Court is as to whether
the act of accused persons would fall within
the definition of 'murder' or it would be
'culpable homicide not amounting to murder'.
Before proceeding further, it is relevant to
refer to the provisions of Section 300 of IPC,
which read as under:

"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
2 All. Ram Shankar & Ors. Vs State of U.P.
347
imminently dangerous that it must, in all
probability, cause death or such bodily
injury as is likely to cause death, and
commits such act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.

Exception 1. - When culpable
homicide is not murder. -

Culpable
homicide
is
not
murder if the offender, whilst deprived of
the power of self-control by grave and
sudden provocation, causes the death of
the person who gave the provocation or
causes the death of any other person by
mistake or accident.

The above Exception is subject
to the following provisos:-

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

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

Thirdly. - That the provocation
is not given by anything done in the
lawful exercise of the right of private
defence.

Explanation. - Whether the
provocation
was
grave
and
sudden
enough to prevent the offence from
amounting to murder is a question of fact.

Exception
2.
-
Culpable
homicide is not murder if the offender, in
the exercise in good faith of the right of
private defence of person or property,
exceeds the power given to him by law
and causes the death of the person against
whom he is exercising such right of
defence
without
premeditation,
and
without any intention of doing more harm
than is necessary for the purpose of such
defence.

Exception
3.
-
Culpable
homicide is not murder if the offender,
being a public servant or aiding a public
servant acting for the advancement of
public justice, exceeds the powers given
to him by law, and causes death by doing
an act which he, in good faith, believes to
be lawful and necessary for the due
discharge of his duty as such public
servant and without ill-will towards the
person whose death is caused.

Exception
4.
-
Culpable
homicide is not murder if it is committed
without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel
and without the offender 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."

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
348 INDIAN LAW REPORTS ALLAHABAD SERIES
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
mens' 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
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".

22. The Apex Court in State of A.P.
vs. Rayavarapu Punnayya and Another
while drawing a distinction between
Section 302 and Section 304 of IPC held
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
2 All. Ram Shankar & Ors. Vs State of U.P.
349
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".
This is the lowest type of culpable
homicide and the punishment provided
for it is, also, the lowest among the
punishments provided for the three
grades. Culpable homicide of this degree
is punishable under the second part of
Section 304.

21. From the above conspectus,
it emerges that whenever a court is
confronted with the question whether the
offence is "murder" or "culpable homicide
not amounting to murder", on the facts of
a case, it will be convenient for it to
approach the problem in three stages. The
question to be considered at the first stage
would be, whether the accused has done
an act by doing which he has caused the
death of another. Proof of such causal
connection between the act of the accused
and the death, leads to the second stage
for considering whether that act of the
accused amounts to "culpable homicide"
as defined in Section 299. If the answer to
this question is prima facie found in the
affirmative, the stage for considering the
operation of Section 300 of the Penal
Code, is reached. This is the stage at
which the court should determine whether
the facts proved by the prosecution bring
the case within the ambit of any of the
four clauses of the definition of "murder"
contained in Section 300. If the answer to
this question is in the negative the offence
would
be
"culpable
homicide
not
amounting to murder", punishable under
the first or the second part of Section 304,
depending, respectively, on whether the
second or the third clause of Section 299
is applicable. If this question is found in
the positive, but the case comes within
any of the exceptions enumerated in
Section 300, the offence would still be
"culpable homicide not amounting to
murder", punishable under the first part of
Section 304, of the Penal Code."

In Budhi Singh vs. State of
Himachal Pradesh, the Supreme Court
held as under:

18. The doctrine of sudden and
grave provocation is incapable of rigid
construction leading to or stating any
principle of universal application. This
will always have to depend on the facts of
a given case. While applying this
principle, the primary obligation of the
court is to examine from the point of view
of a person of reasonable prudence if
there was such grave and sudden
provocation so as to reasonably conclude
that it was possible to commit the offence
of culpable homicide, and as per the facts,
was not a culpable homicide amounting to
murder. An offence resulting from grave
and sudden provocation would normally
mean that a person placed in such
circumstances could lose self-control but
only
temporarily
and
that
too,
in
proximity to the time of provocation. The
provocation could be an act or series of
acts done by the deceased to the accused
resulting in inflicting of injury.

19. Another test that is applied
more often than not is that the behaviour
350 INDIAN LAW REPORTS ALLAHABAD SERIES
of the assailant was that of a reasonable
person. A fine distinction has to be kept in
mind
between
sudden
and
grave
provocation resulting in sudden and
temporary loss of self-control and the one
which inspires an actual intention to kill.
Such act should have been done during
the continuation of the state of mind and
the time for such person to kill and
reasons to regain the dominion over the
mind. Once there is premeditated act with
the intention to kill, it will obviously fall
beyond the scope of culpable homicide
not amounting to murder....."

In Kikar Singh vs. State of
Rajasthan the Apex Court held as under:

"8. The counsel attempted to
bring the case within Exception 4. For its
application all the conditions enumerated
therein must be satisfied. The act must be
committed without premeditation in a
sudden fight in the heat of passion; (2)
upon a sudden quarrel; (3) without the
offender's having taken undue advantage;
(4) and the accused had not acted in a
cruel or unusual manner. Therefore, there
must be a mutual combat or exchanging
blows on each other. And however slight
the first blow, or provocation, every fresh
blow becomes a fresh provocation. The
blood is already heated or warms up at
every subsequent stroke. The voice of
reason is heard on neither side in the heat
of passion. Therefore, it is difficult to
apportion
between
them
respective
degrees of blame with reference to the
state of things at the commencement of
the fray but it must occur as a
consequence of a sudden fight i.e. mutual
combat and not one side track. It matters
not what the cause of the quarrel is,
whether real or imaginary, or who draws
or strikes first. The strike of the blow
must be without any intention to kill or
seriously injure the other. If two men start
fighting and one of them is unarmed
while the other uses a deadly weapon, the
one who uses such weapon must be held
to have taken an undue advantage denying
him the entitlement to Exception 4. True
the number of wounds is not the criterion,
but the position of the accused and the
deceased with regard to their arms used,
the manner of combat must be kept in
mind when applying Exception 4. When
the deceased was not armed but the
accused was and caused injuries to the
deceased with fatal results, the Exception
4 engrafted to Section 300 is excepted and
the offences committed would be one of
murder.

9. The occasion for sudden
quarrel must not only be sudden but the
party assaulted must be on an equal
footing in point of defence, at least at the
onset. This is specially so where the
attack is made with dangerous weapons.
Where the deceased was unarmed and did
not cause any injury to the accused even
following a sudden quarrel if the accused
has inflicted fatal blows on the deceased,
Exception
4
is
not
attracted
and
commission must be one of murder
punishable under Section 302. Equally for
attracting Exception 4 it is necessary that
blows should be exchanged even if they
do not all find their target. Even if the
fight is unpremeditated and sudden, yet if
the instrument or manner of retaliation be
greatly disproportionate to the offence
given, and cruel and dangerous in its
nature, the accused cannot be protected
under Exception 4...."

23. All the above three cases were
considered by the Apex Court in Surain
Singh v The State of Punjab and
2 All. Ram Shankar & Ors. Vs State of U.P.
351
ultimately, it has been held by the Apex
Court in that particular case, that the
accused was liable to be convicted under
Section 304 Part II of IPC and not under
Section 302 of IPC.

24. In Ranjitham v Basavaraj., the
Supreme Court, while dealing with the
similar issue, observed in paragraphs 28,
29, 30 and 31 as under:

"28. In Hari Ram vs. State of
Haryana, (1983) 1 SCC 193, there was an
altercation between the appellant and the
deceased. The appellant had remarked
that the deceased must be beaten to make
him behave. He thereafter ran inside the
house, brought out a jelly and thrust it
into the chest of the deceased. This Court
observed that in the heat of altercation
between the deceased on the one hand,
and the appellant and his comrades on the
other, the appellant seized a jelly and
thrust it into the chest of the deceased.
This was preceded by his remark that the
deceased must be beaten to make him
behave. Therefore, it does not appear that
there was any intention to kill the
deceased. This Court, therefore, set aside
the conviction of the appellant under
Section 302 IPC and instead convicted
him under Section 304 Part II IPC and
sentenced
him
to
suffer
rigorous
imprisonment for five years.

29. In Jagtar Singh vs. State of
Punjab, (1983) 2 SCC 342, in a trivial
quarrel the appellant wielded a weapon
like a knife and landed a blow on the
chest of the deceased. This Court
observed that the quarrel had taken place
on the spur of the moment. There was
exchange of abuses. At that time, the
appellant gave a blow with a knife which
landed on the chest of the deceased and
therefore, it was permissible to draw an
inference that the appellant could be
imputed with a knowledge that he was
likely to cause an injury which was likely
to cause death but since there was no
premeditation, no intention could be
imputed to him to cause death. This
Court, therefore, convicted the appellant
under Section 304 Part II IPC instead of
Section 302 IPC and sentenced him to
suffer rigorous imprisonment for five
years.

30. In Hem Raj v. The State
(Delhi Administration), 1990 Supp. SCC
291, the appellant and the deceased had
suddenly grappled with each other and the
entire occurrence was over within a
minute. During the course of the sudden
quarrel, the appellant dealt a single stab
which unfortunately landed on the chest
of the deceased resulting in his death.
This Court observed that (SCC p. 295,
para 14) as the totality of the established
facts and circumstances show that the
occurrence
had
happened
most
unexpectedly, in a sudden quarrel and
without premeditation during the course
of which the appellant caused a solitary
injury to the deceased, he could not be
imputed with the intention to cause death
of the deceased, though knowledge that
he was likely to cause an injury which is
likely to cause death could be imputed to
him. This Court, therefore, set aside the
conviction under Section 302 IPC and
convicted the appellant under Section 304
Part II IPC and sentenced him to undergo
rigorous imprisonment for seven years.

31. In V. Subramani, (2005) 10
SCC 358, there was some dispute over
grazing of buffaloes. Thereafter, there
was altercation between the accused and
the deceased. The accused dealt a single
352 INDIAN LAW REPORTS ALLAHABAD SERIES
blow with a wooden yoke on the
deceased. Altering the conviction from
Section 302 IPC to Section 304 Part II
IPC, this Court clarified that it cannot be
laid down as a rule of universal
application that whenever death occurs on
account of a single blow, Section 302 IPC
is ruled out. The fact situation has to be
considered in each case. Thus, the part of
the body on which the blow was dealt, the
nature of the injury and the type of the
weapon
used
will
not
always
be
determinative as to whether an accused is
guilty of murder or culpable homicide not
amounting to murder. The events which
precede the incident will also have a
bearing on the issue whether the act by
which death was caused was done with an
intention of causing death or knowledge
that it is likely to cause death but without
intention to cause death. It is the totality
of circumstances which will decide the
nature of the offence."

25. Applying the above principle of
law in the present case, it is apparent that
the offence has been committed without
there being any premeditation in a sudden
fight in the heat of passion upon a sudden
quarrel. Facts also disclose that the
accused persons have not taken any undue
advantage or acted in a cruel or unusual
manner. Thus, the case of the accused
persons would fall under Exception 4 of
Section 300 of IPC, i.e.'culpable homicide
not amounting to murder'.

26. The next question, which arises
for consideration of this Court, is as to
whether the accused persons are liable to
be convicted under Section 304 Part-I or
Part-II of IPC.

Considering the fact that at the
spur of moment, the incident occurred and
as a result thereof, injuries have been
caused to the deceased as well as the
injured and further considering the
statements of three eye-witnesses, it can
safely be held that the accused persons are
liable to be convicted under Section 304
Part-II of IPC.

27. Another question, which arises
for consideration of this Court, is as to
what would be the appropriate sentence to
be imposed upon the accused appellants.

Having considered the facts that
the incident occurred 37 years back; out
of 10 accused persons, four have already
expired and one has been declared
juvenile and the accused appellants are
willing to compensate the family of the
deceased, we are of the considered view
that,
in
the
peculiar
facts
and
circumstances of the case, ends of justice
would
be
served,
if
the
accused
appellants, except accused no.7-Ashok,
are sentenced to five years rigorous
imprisonment. Order accordingly.

However,
looking
to
the
provisions of Section 357 of Cr PC and
the judgment of the Apex Court in
Ankush Shivaji Gaikwad v State of
Maharashtra, we are of the view that the
accused-appellants
are
liable
to
compensate the victim's family by paying
a total compensation of Rs.1,50,000/-
(One Lakh Fifty Thousand Only) under
Section 357 of Cr PC. Accordingly,
accused-appellants, Ram Shankar, Onkar,
Rajeshwar, Laxmi and Bhadeshwar are
directed to pay monetary compensation of
Rs. 30,000/- each to the victim's family.

Let this amount be deposited
before the concerned Court below within
two years from today. After depositing the
2 All. Lal Bahadur & Ors. Vs State of U.P.
353
aforesaid amount before the concerned
Court below, it shall be paid to the wife of
deceased Shiv Raj, if surviving, or to his
legal heirs. In case, the accused appellants
fail to deposit the said amount of
compensation within the aforesaid time,
they shall undergo additional jail sentence
of one year and the Court below shall
proceed
to
recover
the
amount
of
compensation in the light of judgment of the
Apex Court reported in Kumaran Vs State
of Kerala and another.

28. So far as the question of
sentence to be imposed upon accused
no.7-Ashok is concerned, his case is
referred to the concerned Juvenile Justice
Board to pass appropriate orders, as he
has already been declared a juvenile by
the Board.

29. Since the accused-appellants are
reported to be on bail, they be taken into
custody forthwith for serving remaining
sentence in terms of this judgment.

30. Let a copy of this judgment be
sent to the concerned trial Court forthwith
for compliance.

31. The appeal is partly allowed.
----------

(2019)10ILR A 353

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.09.2019

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJ BEER SINGH, J.

Criminal Appeal No. 870 of 1987

Lal Bahadur & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Gulab Chand, Sri Surendra Singh, Sri
Raj Kumar Sharma.

Counsel for the Opposite Party:
A.G.A., Sri Amit, Sri Ravindra Kumar, Sri
Raman Babu.

A. Indian Penal Code, 1860 -Sections 302
- Appeal against conviction.
B. Evidencery value of relatives-A close
relative cannot be categorized as an
'interested' witness. He is a 'natural'
witness. His evidence, however, must be
scrutinized carefully. (Para 23)
The deceased died after six days of the
incident, no fracture of head was found,
appeal would fall under Section 326 of IPC and
not under section 302 of IPC. (Para 26).
Criminal Appeal partly allowed (E-2)
List of Cases Cited: -
1. Anil Rai Vs St. of U.P. & Bihar (2001) 7 SCC 318
2. St. of U.P. Vs Jagdeo Singh (2003) 1 SCC 456
3. Bhagalool Lodh & anr. Vs St. of U.P. (2011)
13 SCC 206
4. Dahari & ors. Vs St. of U.P. (2012) 10 SCC 256
5. Raju @ Balachandran & ors. Vs St. of T.N.
(2012) 12 SCC 701
6. Ganga Bhawani Vs Rayapati Venkat Reddy
& ors. (2011) 15 SCC 298 Jodhan vs. St. of
M.P. (2015) 22 SCC 52
7. Bur Singh & anr. Vs St. of Punj. (2208) 16
SCC 65
8. Sudhakar Vs St. AIR 2018 SC 1372
9. Ganapathi Vs St. of T.N. AIR 2018 SC 1635