# Ramendra Yadav v. State of U.P

- **Citation:** (2021) 7 ILRA 198
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Jail Appeal No. 4354 of 2015
- **Bench:** Manoj Misra, Saumitra Dayal Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramendra-yadav-v-state-of-u-p-46170
- **Pages:** 10

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Section 302-appellant
posted as a guard on duty-the two
7 All. Ramendra Yadav Vs. State of U.P.
199
deceased had gone to pick some goodsappellant
restrained
them,
the
two
deceased entered into altercation, they
were ex-guards-passion surged from both
sides-the appellant lost self control and
fired two shots in quick successionappellant is entitled to the benefit of
exception 1 of section 300-the sentence of
appellant reduced from life imprisonment
to 10 years rigorous imprisonment.(Para 1
to 31)

B.
The
test
of
grave
and
sudden
provocation is whether a reasonable man,
belonging to the same class of society, to
which the accused was placed, would be
so provoked to lose his self control.

The appeal is partly allowed. (E-5)

List of Cases cited:

## Text

198 INDIAN LAW REPORTS ALLAHABAD SERIES
incident took place, then the other field of
the Prem Singh located after it then the
tubewell is situated. PW-1 and PW-2 had
used to go to their field through this way
usually.

(d) The presence of PW-1 and
PW-2 near their field at the tubewell of
Prem Singh is natural at the material time
because it was the intervening period of
two crops. At that time commonly the
farmers do the work in their field to keep
out their Kharif crop outside from their
fields and prepare the fields for Ravi crop.

(e) PW-1 Mangal Singh has
lodged the F.I.R. promptly within one hour
and 5 minutes after the incident.

131. Upon close scrutiny of the entire
evidence, we have observed that the
appellants did not put any questions or
suggestions to the eye-witnesses PW-1
Mangal Singh and P.W.2 Lakhan Singh on
material facts such as: (i) the incident took
place at 9:30 A.M. on 10.11.2007, when
Kamal Singh was returning home after
defecation, (ii) the appellants having
unlicenced guns (Paunia) in their hands and
surrounded the deceased in the field of
Prem Singh and shot fire the deceased from
the front side, (iii) PW-1 Mangal Singh
along with PW-2 Lakhan was present at the
tubewell of Prem Singh at the time of the
incident, (iv) PW-1 along with PW-2 had
seen the incident from the tubewell of Prem
Singh
and
they
reached
the
spot
immediately after the incident, (v) PW-3
Rekha reached the spot after hearing the
noise, (vi) the FIR of the case has been
lodged by PW-1 at 10:35 A.M. on
10.11.2007.

132. For all the reasons recorded and
discussed above, we are of the considered
view that the prosecution has successfully
proved the charge of offence punishable
under section 302 read with section 34 IPC
against the appellants Jagdish and Manoj
Kumar beyond reasonable doubt. The
finding of the trial court is based on proper
appreciation of the evidence. Therefore, we
affirm the conviction and sentence awarded
to the appellants Jagdish and Manoj hold
them guilty for offence punishable under
section 302 read with section 34 IPC. We,
thus, do not find any merit in these appeals.
The Criminal Appeals no. 3271 of 2011
and
3210
of
2011
are
dismissed
accordingly. The appellants are in jail.

133. Let a certified copy of this
judgment with original record be sent to the
trial court for information and compliance
forthwith. The office is directed to provide
the
certified
copy
of
the
judgment
separately to the appellants promptly.
----------
(2021)07ILR A198
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Jail Appeal No. 4354 of 2015

Ramendra Yadav ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
From Jail, Sri Brijesh Sahai, Sri Sarvesh
Kumar Dubey, Sri Shashi Shekhar

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code,1860-Section 302-appellant
posted as a guard on duty-the two
7 All. Ramendra Yadav Vs. State of U.P.
199
deceased had gone to pick some goodsappellant
restrained
them,
the
two
deceased entered into altercation, they
were ex-guards-passion surged from both
sides-the appellant lost self control and
fired two shots in quick successionappellant is entitled to the benefit of
exception 1 of section 300-the sentence of
appellant reduced from life imprisonment
to 10 years rigorous imprisonment.(Para 1
to 31)

B.
The
test
of
grave
and
sudden
provocation is whether a reasonable man,
belonging to the same class of society, to
which the accused was placed, would be
so provoked to lose his self control.

The appeal is partly allowed. (E-5)

List of Cases cited:

1. Bhagwan Munjaji Pawade Vs St. of Mah.
(1978) 3 SCC 330 Para 6

2. K.M. Nanavati Vs St. of Mah.(1962) AIR SC
605

(Delivered by Hon'ble Manoj Misra, J.

1. This jail appeal has been filed
against
the
judgment
and
order
of
conviction dated 11.02.2015 and order of
sentence dated 13.2.2015 passed by the
Additional
Sessions
Judge,
Second,
Gautam Budh Nagar in S.T. No.381 of
2011 (State Vs. Ramendra Yadav) whereby
the appellant Ramendra Yadav has been
convicted for offence punishable under
Section 302 IPC and has been sentenced to
undergo imprisonment for life along with
fine of Rs.50,000/- and default sentence of
one year simple imprisonment.

2. The prosecution case, in nutshell,
as taken in the FIR (Ex. Ka 1) is that PW2's (informant's) brother-in-law, Indrajeet
Singh Rathore (deceased no.1 - D-1)
and one Sachin Tomar (deceased no.2 - D2) were working for Pawan Security for the
last two months. About four days before
the date of incident, they were removed. On
15.02.2011, at about 7 pm, PW-2 with D-1
and D-2 visited Colonel Hostel of Sharda
University for settlement of their dues.
When D-1 and D-2 went to fetch their
belongings
from
the
guardroom,
the
appellant-Ramendra Yadav, the gunman,
restrained them from picking the goods on
which a fight broke out. The gunman
picked up his double barrel gun and fired
one shot at D-1 and the other at D-2,
resulting in serious injuries to both of them.
PW-2 and Pawan Security Supervisor,
namely, Gurvinder Singh (P.W.6), who
were there, arrested the accused on the spot
with his double barren gun. The two
injured were rushed to Sharda Hospital
where they were declared dead. The FIR of
the incident was registered at P.S. Kasna,
District Gautam Budh Nagar at 20.10 hours
on 15.02.2011, which was proved by the
informant (PW-2).

3. The postmortem report (Ex. Ka-5)
of D-1 prepared and proved by Dr. Raj
Singh (PW3) disclosed a circular 6 cm x 5
cm bone deep firearm entry wound at left
inguinal region with same sized hole on
overlying shirt and pant with blackening.
All the vascular channels (femoral artery
and vein) ruptured. A plastic wad and
deformed metallic foreign body was
recovered from inguinal region near femur.
The cause of death was due to excessive
bleeding on account of firearm injury to
main vascular vessel.

4. The postmortem report of D-2 (Ex.
Ka-6) prepared and proved by PW3
revealed a circular firearm entry wound 3
200 INDIAN LAW REPORTS ALLAHABAD SERIES
cm x 3 cm at left side chest and left side
abdomen, 13 cm above umbilicus at 1
O'clock position, through which intestine
was coming out. Blackening was found
around the wound. Cause of death was due
to shock and haemorrhage on account of
ante mortem firearm injury.

5. Inquest was held at Sharda Hospital.
Inquest reports were exhibited as Ex. Ka-7 and
Ex. Ka-12 on the testimony of Sub Inspector
Anang Pal Singh (P.W.4) as also constable
Ravindra Singh (P.W.5). The investigation
was carried out by Preetam Pal Singh, S.H.O.
Kasna (P.W.7) resulting in charge sheet (Ex.
Ka-22). Memorandum of taking possession of
the weapon of assault i.e. double barrel gun
with eight live cartridges was prepared and
exhibited as Ex. Ka-4 on the testimony of
PW2 and PW6. Fard of plain floor obtained
from the guardroom of Colonel Hostel of
Sharda University was marked Exhibit Ka-17
and Fard of blood stained floor picked up
from guardroom of Colonel Hostel of Sharda
University was marked Exhibit Ka-18 on the
testimony of PW7. Fard of blood stained bed
sheet, etc., picked up from the guardroom, was
marked Exhibit Ka-19 on the testimony of
PW7.

6. The prosecution examined two
witnesses of fact, namely, PW-2 and PW-6.
Four police witnesses, namely, Constable
clerk Jeet Singh (P.W.1), who proved the Chik
FIR (Ex.Ka1) and its G.D. Entry (Ex. Ka 2) at
20.10 hrs on 15.02.2011; P.W.4, who proved
the inquest proceedings and the papers
connected therewith; Constable Ravindra
Singh (P.W.5) who took the sealed bodies for
post-mortem to the mortuary; and PW7 who
proved the various stages of the investigation.
PW3 proved the post mortem reports.

7. PW-2 deposed that he along with
two deceased had gone to Colonel Hostel
of Sharda University. There, when the two
deceased entered the guardroom to take
their goods, the accused, who was there as
a guard with gun, restrained them from
picking the goods. This resulted in a
quarrel. The accused thereafter picked up
his gun and fired one shot each at the two
deceased. Upon hearing gun shots, the
other security guard (PW-6) rushed to the
spot. Whereafter, PW2 with the help of
PW6 arrested the accused on spot and took
his gun with live cartridges. Thereafter, he
went to the hospital with the two deceased
where
they
were
declared
dead.
Immediately, thereafter, he along with PW6, went to the police station, handed over
the accused and the gun to the police.

8. PW-6, the other security guard
posted at the Hostel, stated that upon hearing
gun shots, he rushed to the spot and found the
accused with gun in his hand and two
deceased
lying
injured
and
bleeding
profusely. He stated that he with the help of
PW2 arrested the accused on spot and took
possession of his gun.

9. The incriminating circumstances
borne out from the prosecution evidence were
put to the accused under Section 313 Cr.P.C.
The accused denied the prosecution case by
stating that the prosecution case is incorrect
and he has been falsely implicated. He,
however, disclosed no reason for his false
implication and led no evidence in defence.

10. The trial court after examining the
prosecution
evidence
held
that
the
prosecution was successful in proving the
charge of murder punishable under section
302 IPC beyond reasonable doubt and
punished the appellant accordingly.

11. We have heard Sri Brijesh Sahai,
learned Senior Counsel, assisted by Sri
7 All. Ramendra Yadav Vs. State of U.P.
201
Sarvesh Kumar Dubey, for the appellant;
Sri Ankit Srivastava, learned A.G.A., for
the State.

12. Sri Brijesh Sahai, learned counsel for
the appellant, submitted that as per the
prosecution case the incident was witnessed
only by PW-2 because PW-6 arrived at the spot
on hearing the shots. Hence, actual firing has
allegedly been witnessed only by PW2. PW-2
is a chance witness who resides in District
Kanpur Nagar whereas the incident took place
in District Gautam Budh Nagar. According to
PW-2, he had come to Delhi on that day in the
morning and had met his brother-in-law (D-1)
at Pari Chowk. From there, they, along with D2, went to Sharda University to settle the
accounts. It has been submitted that PW-2 has
been set up as a witness though he did not
witness the incident. He next submitted that the
alleged spot arrest of the accused is rendered
doubtful from the testimony of PW-2,
inasmuch as, according to PW-2, he and the
other guard (PW-6) had arrested the accused
with his double barrel gun and eight live
cartridges on the spot and, later, the accused
was handed over to the police with the double
barrel gun and live cartridges at the police
station, which is belied by the own testimony of
PW-2 which is that after arresting the accused
he had proceeded to the hospital with the two
deceased in the ambulance. It has been
submitted that the story that on return from the
hospital he took the accused to the police station
appears unbelievable because the accused
admittedly had a gun with eight live cartridges
and could easily have managed his escape
therefore, it appears, the incident occurred in
some other manner than alleged by the
prosecution. In respect of PW-6, the other eye
witness, the learned counsel for the appellant
submitted that PW-6 is not an eye witness as he
arrived at the spot when he heard gun shots.
Hence, his testimony alone is not sufficient
to record conviction.

13. In the alternative, the learned
counsel for the appellant submitted that even
if the court finds that the prosecution
testimony is reliable then too an offence of
murder cannot be said to have been
committed as, admittedly, the accused was
posted as a guard on duty at the time of the
incident and in good faith he had restrained
the two deceased from picking up goods
lying in the guardroom which resulted in a
sudden fight and the shots were fired in the
heat of passion upon a sudden quarrel or it
could be said that the two deceased by their
conduct provoked the accused so much that
he lost self control and fired the shots
resulting in death. Thus, in any view of the
matter, the offence, if any, committed by the
accused would fall either in Exception 1 or
Exception 4 of Section 300 IPC and therefore
conviction could only be for an offence of
culpable homicide not amounting to murder.
To support the above contention, attention of
the Court was invited to the postmortem
reports to suggest that D-1 was shot not at
vital part but at the inguinal region and the
other shot fired at D-2 was in quick
succession as a consequence of having
already lost the power of self control on
account of sudden surge of emotions caused
by sudden quarrel and fight. He submitted
that the accused has already suffered
incarceration since 15.02.2011 and therefore
it is a fit case where the sentence of the
appellant be reduced to imprisonment already
undergone.

14. Per contra, learned A.G.A.
submitted that the prosecution story is
natural. PW2's presence cannot be doubted
because he is also witness of the inquest
202 INDIAN LAW REPORTS ALLAHABAD SERIES
proceeding which started at about 8.30 pm
at Sharda Hospital. If he had been at
Kanpur, as suggested by the defence, he
could not have attended the inquest
proceeding. Thus, his presence at the place
of occurrence is not impossible but quite
natural as having accompanied his brother
in law for settlement of dues. Moreover, his
presence is proved by PW6. He submitted
that the place of occurrence is the
guardroom of the hostel, close to which is
the hospital, therefore it was quite natural
for PW2 to rush the deceased to the
hospital and on return reach the police
station with the accused. More so, when
there was another guard (PW6) to detain
the accused who was apprehended with his
gun on the spot. Hence, merely because the
informant went to the hospital and on
return took the accused along with other
security guard (PW6) to the police station
cannot be said to be an unnatural conduct
on the part of the informant so as to cast a
doubt on the prosecution story. He further
submitted that there is no allegation of any
kind of enmity or mala fide against PW2 or
the police, therefore there is no reason at all
to doubt the prosecution story which is
corroborated by the facts and circumstances
brought
on
record.
Further,
PW-6
corroborates the testimony of PW-2.
Besides, there is no dispute with regard to
the place and time of occurrence and the
ocular version is fully corroborated by
medical report. Hence, there is no shadow
of doubt that the appellant is guilty. On the
question of sentence, the learned A.G.A.
submitted that it is not a case of a single
gun shot but of two gun shots. Even if it is
assumed that the first gun shot was on the
inguinal region, the second gun shot was
directly on vital part i.e. the abdomen near
the chest. Thus, the trial court was justified
in convicting the accused for an offence
punishable under Section 302 IPC.

15. We have considered the rival
submissions and have perused the record
carefully.

16. In so far as the guilt of the
appellant in respect of commission of
culpable
homicide
is
concerned,
the
prosecution evidence through PW2 is
straight forward and leaves no shadow of
doubt that the gun shots at the two
deceased were fired by the appellant. The
presence of PW2 at the place of occurrence
is quite natural being brother in law of the
deceased and having accompanied him to
the University for settlement of his dues.
His presence is also corroborated from
police papers such as the FIR, inquest
report and Fard of handing over the
accused and his gun. Further, PW6 certifies
P.W.2's presence on the spot at the time of
the incident. With regard to the reliability
of the testimony, there is no suggestion to
PW2 as to why PW2 would be lying.
Further, there is no suggestion to any of the
prosecution witnesses that the two deceased
were shot at by some other person in some
other manner and at some other place or
time. There is also no challenge to the
prosecution evidence that the appellant was
posted as a guard at Colonel Hostel of
Sharda University where the incident took
place. There is also nothing on record to
show that the two deceased were armed and
had caused any kind of injury to the
accused. The prosecution story finds
corroboration not only in the medical
evidence but also in the testimony of PW6,
who is an independent witness and, at the
time of the incident, was in another room of
the hostel and had rushed to the spot on
hearing gun shots. There he found the
appellant with gun in his hand and the two
deceased
lying
on
the
floor.
He
corroborated the testimony of PW2 by
stating that, thereafter, he, with the help of
7 All. Ramendra Yadav Vs. State of U.P.
203
PW2, who had come with the two
deceased, apprehended the accused on spot.

17. In so far as the spot arrest of the
appellant is concerned, it is not doubtful. It
is to be noted that the gun used by the
appellant was a double barrel gun. He had
already fired two shots. It is thus possible
that before he could reload the weapon
there was ample opportunity for PW2 and
PW6 to catch and overpower him. Thus the
testimony that PW2 and PW6 had arrested
the appellant and took away his gun and
eight live cartridges is not unbelievable at
all. The plea of the learned counsel for the
appellant that spot arrest becomes doubtful
because straightaway the accused was not
produced at the police station but was
produced after PW-2 returned from the
hospital is not acceptable because Sharda
Hospital is within the campus of Sharda
University. This argument might have had
some weight if the hospital had been far off
and if there had been no other person to
take control of the appellant. In the instant
case,
the
incident
occurred
in
the
guardroom of the hostel. PW6 himself was
there in another room as a guard and there
were several other persons also present, as
has come in the testimony. Therefore, if the
appellant had been overpowered and his
gun had been snatched, he could have
easily been detained for sometime at the
hostel before being taken to the police
station. Thus, if he was produced at the
police station by PW2 and PW6, after PW2
returned from the hospital, which was
nearby, the prosecution case with regard to
spot arrest of the accused-appellant is not
rendered doubtful in any manner.

18. Under the circumstances, we do
not find any such suspicious circumstance
in the prosecution evidence which may
lead us to disbelieve the straight forward
prosecution evidence more so when no
motive has been attributed to the witnesses
to falsely implicate the appellant. Thus, we
are of the view that the prosecution has
been able to successfully prove beyond
reasonable doubt that the appellant fired
two shots, one at D-1 and the other at D-2.
Even assuming that injury caused to D-1
was below his waist, near the inguinal
region, the second gun shot fired at D-2
was above the umbilical region near the
chest therefore, as both shots were from a
close range, it can safely be concluded that
the shot fired at D-2 was with the intention
of causing such bodily injury as is likely to
cause death of D-2.

19. Now, we shall proceed to examine
the merit of the alternative submission
made by the learned counsel for the
appellant which is that the case of the
appellant would fall in any one or more of
the Exceptions provided under Section 300
IPC so as to make it an offence of culpable
homicide not amounting to murder.

20. In this regard, the learned counsel
for the appellant had strenuously urged that
it is established from the prosecution
evidence that the incident occurred in the
guard-room of the University. The accusedappellant was the guard on duty. D-1 and
D-2 wanted to take goods from the guardroom. The prosecution has not shown that
D-1 and D-2 were authorised by any lawful
order to take goods from the guard-room.
Rather, admittedly, they were put off duty
and had come to the campus only for
settlement
of
their
dues.
Thus,
the
appellant, who was posted as a guard on
duty, had every right to restrain D-1 and D-
204 INDIAN LAW REPORTS ALLAHABAD SERIES
2 from taking away the goods. As it is
proved that when the appellant restrained
D-1 and D-2 from taking away the goods
altercation
started
between
them,
considering that there was no premeditated
intention to cause death and the two shots
were fired in quick succession, in the heat
of passion, when the accused was provoked
by the act of the two deceased, and such
provocation was not sought by the
appellant, it is a clear case where the shots
were fired in the heat of the moment whilst
deceased had lost the power of self control
on
account
of
grave
and
sudden
provocation in a sudden fight upon a
sudden quarrel, therefore his case would
fall both in Exceptions 1 and 4 of Section
300 IPC.

21. In response to the above
submission, the learned A.G.A. submitted
that in so far as the first shot at D-1 is
concerned, that is on or about the thigh /
inguinal region whereas the second shot at
D-2 is placed high on abdomen near the
chest region. Thus, the accused has caused
such bodily injury which he knew that it is
likely to cause death. Hence, in view of
clause (secondly) to section 300, it is
murder. In so far as bringing the case under
any of the Exceptions, no defence evidence
has been led and it has not come on record
that the accused suffered any injury
therefore it appears just to be a case of
quarrel and not sudden fight. Accordingly,
Exception 4 of Section 300 would not come
into play. In so far as Exception 1 is
concerned, that would not be applicable
because it is a case where a second shot
was fired.

22. Before we take a decision on the
rival submissions, on the above aspect, it
would be apposite to notice few proven
facts. D-1 was himself a security guard and
was an ex-army personnel, as is the
prosecution case. Likewise, D-2 was also a
security guard though it has not come on
record whether he was an ex-army
personnel. Admittedly, both D-1 and D-2
were discharged by the security service
which was managing the security at the
University and, admittedly, at the time of
the incident, the accused-appellant was on
duty and had a gun in connection with his
duty. According to the prosecution case,
both D-1 and D-2 had gone to settle the
accounts and when they had gone to the
guardroom to collect their goods, the
appellant, who was the guard on duty,
restrained them from doing so. Nothing has
been brought in the prosecution case to
demonstrate
that
D-1
and D-2 had
permission of any authority to pick up
goods from the guardroom which they had
shown to the accused-appellant. Further,
nothing has been shown by the prosecution
that the accused-appellant was aware that
the goods, which D-1 and D-2 were
planning to lift, were of D-1 and D-2.
Under the circumstances, the appellant,
being the guard, had a right to restrain
them. This resulted in heated altercation
between the guard on duty and the two
deceased. In that heat of the moment, it
appears, the deceased fired the first shot at
D-1. This shot was from close range, as
ascertainable from the post-mortem report
which discloses blackening and presence of
wad, and on the inguinal region not
head/chest/ abdomen. Thus, it can be said
that while firing the first shot, the appellant
may not have had the requisite intention to
cause such bodily injury as is likely to
cause death. But the second shot fired at D2 is above the umbilical region on or about
the chest. This shot too was from close
range as would be clear from presence of
blackening, etc. This shot has been fired
clearly with the knowledge that it is likely
7 All. Ramendra Yadav Vs. State of U.P.
205
to cause death therefore the act of the
accused-appellant would fall in clause
secondly of Section 300 IPC. As, it is not
shown that D-1 and D-2 were armed or had
caused any bodily injury to the accusedappellant, hence those shots being in self
defence so as to attract Exception 2 of
Section 300 IPC is out of question.

23. Now, we shall examine whether
the act of the appellant would fall under
Exception 4 of Section 300 IPC.

24. Exception 4 of Section 300 IPC
reads as follows:-

"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".

25. The ingredients of Exception 4 are
(i) there must be a sudden fight; (ii) there
was no pre-meditation; (iii) the act was
committed in heat of passion; and (iv) the
assailant
had
not
taken
any
undue
advantage or acted in a cruel manner. If the
said ingredients are present, the cause of
quarrel would not be material as to who
offered the provocation or started the fight.
Although the term fight has not been
defined in IPC but the consistent view is
that it implies mutual assault by use of
criminal force and not mere verbal duel. In
Bhagwan Munjaji Pawade v. State of
Maharashtra, (1978) 3 SCC 330 (Para 6),
it was observed that where the accused is
armed and the deceased is unarmed,
Exception 2 can have no application and
Exception 4 to Section 300 would not apply
if there is sudden quarrel but no sudden
fight between the deceased and the accused.
It was held that ''Fight' postulates a
bilateral transaction in which blows are
exchanged.

26. In the instant case, the defence
led no evidence and from the prosecution
evidence, that is the testimony of PW2, it
appears that only verbal duel
and
altercation took place, inasmuch as
though he uses the words "Vaad Vivad"
and "Jhagda" but does not state that any
physical blows were exchanged. Vaad
Vivad in vernacular is used for dispute
and in the context of the case could be
taken
as
verbal
duel.
Jhagda
in
vernacular is used for fight. But more
often than not, in vernacular, it is also
used for heated altercation. As the
appellant seeks to bring his case within
the four corners of an exception the
burden is on him to demonstrate that his
act falls within that exception. No doubt,
even if no defence evidence is led, the
accused can demonstrate from the facts
and circumstances of the case, borne out
from the prosecution evidence, that his
case falls within that exception. But,
here, the prosecution evidence is silent
with regard to exchange of blows. Hence,
we are of the considered view that the act
of the appellant would not fall within the
four corners of Exception 4 of Section
300 IPC.

27. Now, we shall examine whether
the act of the appellant can come within the
purview of Exception 1 of Section 300 IPC.
Exception 1 of Section 300 IPC reads thus:
206 INDIAN LAW REPORTS ALLAHABAD SERIES

"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 obedience to 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 question of fact."

28. To seek the benefit of Exception 1,
following conditions are to be satisfied: (i) there
must be provocation to the accused; (ii) the
provocation must be grave; (iii) the provocation
must also be sudden; (iv) the provocation must
have deprived the accused of his power of
control; (v) the offence must have been
committed during loss of self control; and (vi)
the person killed must have been the person
giving provocation, or another by mistake or
accident. In K.M. Nanavati V. State of
Maharashtra, AIR 1962 SC 605 it was held
that the test of grave and sudden provocation is
whether a reasonable man, belonging to the
same class of society, to which the accused was
placed, would be so provoked to lose his self
control.

29. Applying the above tests, we find
from the evidence brought on record that
the accused-appellant was posted as a
guard on duty in the guardroom with a gun
on the date and time of the incident. The
two deceased had gone to the guardroom to
pick up some goods. The appellant
restrained them from doing so. This
resulted
in
altercation
between
the
appellant and the two deceased. In that heat
of the moment the appellant lifted his gun
and fired two shots in quick succession.
One hit D-1 on the inguinal region. The
other hit D-2 above the umbilical region
near the chest. Considering that the
appellant was guard on duty, his primary
responsibility was to restrain unlawful
entry and removal of goods / property from
the campus/ place which he was supposed
to guard. Nothing has come in the
prosecution evidence that the two deceased
had permission to enter the guard room and
take goods from there and if any such
permission was obtained that was shown to
the
accused-appellant.
Under
the
circumstances,
if
the
appellant
had
restrained them from picking up the goods,
he was well within his authority as a guard.
Therefore, the reaction of the two deceased
which constituted the provocation for the
appellant to react and commit the offence
was not sought or voluntarily provoked as
an excuse for killing or doing harm to
them. Now, the issue is whether the heated
quarrel or altercation which followed could
be considered as grave and sudden
provocation so as to deprive the appellant
of the power of self-control. In this regard,
we would have to take into consideration
the class of society to which the appellant
belonged. Admittedly, the appellant was a
guard. Ordinarily, a guard is expected to be
tough and no nonsense kind of a person
because without that kind of an attitude a
person would not be suitable for that job.
Hence, a strong reaction is expected from a
guard, if a guard on duty is provoked. In the
7 All. Takla @ Dharmeshwar (Minor) Vs. State of U.P. & Anr.
207
instant case, the two deceased not only tried to
lift goods lying in the guardroom despite being
restrained by the appellant but they also entered
into altercation. Under the circumstances,
keeping in mind that the two deceased were
themselves ex-guards, the passions surged from
both sides and, therefore, it was quite natural for
the appellant to lose the power of self control,
particularly, when he had the gun to exhibit his
authority. Therefore, under that heat of passion
or fit of rage, so to say, the appellant, who had a
gun for duty, lost self-control and fired two
shots in quick succession. Noticeably, it is not
the prosecution case that the second shot was
fired with some delay, that is when the passion
had died down. Thus, both shots were fired by
the appellant whilst he was deprived of the
power of self control on sudden surge of
emotions provoked by the two deceased who
entered the guardroom and tried to lift goods
despite being asked to desist from doing so and,
thereafter, entered into a heated altercation with
the appellant, who was the guard on duty.
Hence, in our considered view, the appellant is
entitled to the benefit of Exception 1 of Section
300. But since the injury caused to D-2 was
such which the offender knew that it is likely to
cause death, the appellant is liable to be
convicted under Section 304-Part-1 IPC though
not under Section 302 IPC.

30. On the question of sentence,
though the maximum sentence prescribed
for an offence punishable under Section 304
Part 1 is imprisonment for life but there are
mitigating factors here. Firstly, the appellant
was a guard on duty and, secondly, he did
not act cruelly by repeating the shots or by
assaulting the two deceased once they had
fallen. It may also be noticed that no sooner
the surge of emotions died down, the
appellant neither tried to escape nor tried to
reload his gun to fire another shot. All this
suggests that his act was on account of
sudden
surge
of
emotions
which
deprived him of his power of self control
and no sooner the emotions subsided he
became calm, perhaps repentant of what he
had done, and, therefore, could be arrested
with his gun and eight live cartridges. It be
noted that it is not the prosecution case that
to overpower the accused-appellant any
serious force had to be used. Under the
circumstances, in our considered view, the
ends of justice would be served if the
sentence is reduced from life to 10 years of
rigorous imprisonment along with fine as
awarded by the court below.

31. Accordingly, the appeal is partly
allowed. The conviction of the appellant
under Section 302 IPC is converted to that
under
Section
304-Part-1
IPC.
The
sentence of the appellant is reduced from
imprisonment for life to 10 years rigorous
imprisonment. The fine of Rs.50,000/- and
the default sentence of one year simple
imprisonment awarded by the trial court is
maintained. The appellant is in jail, he shall
serve out the sentence awarded above.

32. Let a copy of this order be sent to
the trial court concerned for compliance.
----------
(2021)07ILR A207
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.07.2021

BEFORE

THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Revision No. 3 of 2018

Takla @ Dharmeshwar (Minor)
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties