# Salim @ Pappu v. State of U.P

- **Citation:** (2022) 9 ILRA 954
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-20
- **Case number:** Criminal Appeal No. 6666 of 2008
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salim-pappu-v-state-of-u-p-49289
- **Pages:** 12

## Headnote

Law
-
Indian
Penal
Code,1860
-
Section
302/34
IPCAccused are two brothers-one accused of
stabbing
and
other
accused
of
grabbing/catching hold the deceased-one
victim died another sustained stab injurymanner of offence occurred indicates- at
spur of the moment -common intention
was formed between three brothers-no
premediation-sudden
fight-falls
under
fourth exception to section 300 IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

## Text

954 INDIAN LAW REPORTS ALLAHABAD SERIES
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

28. Recent judgment of State of M.P
Vs. Jogendra, (2022) 5 SCC 401 and ratio
laid in the said judgment can be followed,
however, instead of seven years period
undergone would be more than relevant in the
facts and circumstances of this case.

29. Having discussed the judgment
threadbare and have been considered the
factual data, we have come to the conclusion
that the offence committed by the accused
with an aid of Section 106 of Indian Evidence
Act, can be said to have been under Section
304B for the finding mentioned herein above.

30. By going through the evidence on
record it is very clear that the act of the
accused-appellant was not such which cannot
be substituted by giving a lessor sentence
than life imprisonment. The period of 12
years which he spent is enough punishment
in the facts of this case. The minor
contradictions will have to be ignored and
they cannot for the dent in the prosecution of
the husband. Medical evidence is quite clear
and corroborates the facts and circumstances.
Punishment would be 10 years incarceration,
the fine and default sentence are also
maintained.

31. Accordingly, the appeal is partly
allowed with the modification of the sentence
and punishing section as above. Record and
proceedings be sent back to the Court below
forthwith.

32. A copy of this order be sent to the
jail authorities for following this order and
doing the needful.

33. This Court is thankful to learned
Advocates for ably assisting the Court.
----------
(2022) 9 ILRA 954
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.09.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 6666 of 2008
connected with
Criminal Appeal No. 6372 of 2008

Salim @ Pappu ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Pankaj Govil, Sri Siddharth Nandan

Counsel for the Respondent:
Govt. Advocate, Sri V.M. Zaidi

Criminal
Law
-
Indian
Penal
Code,1860
-
Section
302/34
IPCAccused are two brothers-one accused of
stabbing
and
other
accused
of
grabbing/catching hold the deceased-one
victim died another sustained stab injurymanner of offence occurred indicates- at
spur of the moment -common intention
was formed between three brothers-no
premediation-sudden
fight-falls
under
fourth exception to section 300 IPC.

Appeal partly allowed. (E-9)

List of Cases cited:

1. Ramashish Yadav & ors. Vs St. of Bihar,
(1998) 8 SCC 555

2. Gulab Vs St. of U.P. & ors. being Criminal
Appeal No.81 of 2021
(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)
9 All. Salim @ Pappu Vs. State of U.P.
955

1. These two appeals are by the
brothers of Dilshad, namely Saleem and
Firoz, challenging the judgment and order
of
conviction
and
sentence,
dated
28/29.8.2008, passed by the Additional
Session Judge, Court No.11, Ghaziabad in
Session Trial Nos. 383 of 1998 (State vs.
Saleem @ Pappu and Firoz) and 309 of
1999 (State vs. Firoz), whereby the accused
appellant Saleem @ Pappu has been
convicted
and
sentenced
to
life
imprisonment under Section 302/34 IPC
with fine of Rs.10,000/- and has also been
convicted and sentenced to ten years
rigorous
imprisonment
under
section
307/34 IPC with fine of Rs.5,000/- and
accused appellant Firoz has been convicted
and sentenced to life imprisonment under
Section
302/34
IPC
with
fine
of
Rs.10,000/- and has also been convicted
and sentenced to ten years rigorous
imprisonment under Section 307 IPC with
fine of Rs.5,000/- and he has also been
convicted and sentenced to one year
rigorous imprisonment under Section 25/4
Arms Act with fine of Rs.1,000/-. In default
of fine accused appellants are to undergo
two years rigorous imprisonment under
section 302/34 IPC and one year rigorous
imprisonment under Sections 307/34 IPC
and 307 IPC and three months rigorous
imprisonment under Section 25/4 Arms
Act.
All
the
sentences
shall
run
concurrently.

2. Prosecution case, in brief, is that
the first informant Tahzeeb alongwith
Suhail had gone to meet Mazid Ali (injured
witness, PW-2) and his brother-in-law
Fasiuddin (deceased) at their workshop and
their helper Moinuddin was also present at
09.30 AM, when their neighbour Saleem @
Pappu,
Firoz
and
Dilshad
sons
of
Imamuddin started sweeping areas in front
of their workshop such that dust started
coming to the workshop of Mazid. Mazid
and Fasiuddin accordingly asked the three
accused to sprinkle water before sweeping
the area so that dust does not come to their
workshop and on this Saleem, Firoz and
Dilshad started abusing them. Mazid and
Fasiudding asked them not to do so on
which the accused persons attacked them
with knife. Saleem grabbed Fasiuddin and
Dilshad stabbed him and Firoz stabbed
Mazid. Seeing the occurrence neighbours
and adjoining workshop owners rushed to
the spot and tried to apprehend the accused
persons but they fled. Mazid and Fasiuddin
were taken to government hospital where
Fasiuddin was declared dead and his dead
body was kept in mortuary. Mazid after
first aid was taken to Yashoda Hospital and
was admitted there. It is with these contents
that written report (Ext. Ka-1) was entered
in the General Diary and registered as Case
Crime No.594 of 1997 on 27.09.1997 at
12.20 PM, under Sections 302/307 IPC,
Police
Station
Sihanigate,
District
Ghaziabad. Individual role of accused
appellant
Saleem
@
Pappu
is
of
grabbing/catching
hold
the
deceased
Fasiuddin while accused appellant Firoz is
accused of causing stab injury to Mazid.
Section 34 IPC has also been invoked since
the prosecution asserted that with a
common intent the three accused persons
have committed the offence in which one
person, namely Fasiuddin, died and another
Mazid sustained stab injury.

3. After registration of FIR the
investigation proceeded. The Investigating
Officer reached the spot and collected the
bloodstained and plain earth. The inquest
also followed. The inquest witnesses were
of the view that the deceased died due to
stabbed injury caused on his chest. The
postmortem of the deceased Fasiuddin was
conducted on 28.09.1997 and the autopsy
956 INDIAN LAW REPORTS ALLAHABAD SERIES
doctor opined the cause of death to be
shock and haemorrhage due to following
ante-mortem injury:-

"1.
Incised
wound
2cm
x
1(1/2)cm x chest cavity deep on left side
chest 7 cm away from left nipple at 10 ''o'
clock position."

4. A subsequent FIR came to be
lodged on 12.10.1997 at 02.00 AM when
accused appellant Firoz and Dilshad were
arrested on 11.10.1997 at 11.15 PM and
two similar knives were recovered from
them. The accused persons had no licence
to keep such weapons. These two accused
persons informed the police that they had
killed Fasiuddin and had also injured
Mazid with these knives. The recovered
knives were sealed separately and recovery
memo of two knives and arrest was
accordingly prepared.

5. Upon conclusion of investigation
charge sheet was submitted against the
accused
appellants,
on
which
the
Magistrate took cognizance and committed
the case to the court of sessions, and was
registered as Session Trial Nos. 383 of
1998. Charges accordingly were framed
against
the
accused
appellants
on
26.03.1998 under Sections 302/34 IPC and
307/34 IPC. Accused appellant Firoz was
also charged under Section 25/4 Arms Act
in respect of which Session Trial No.309 of
1999
was
registered.
The
accused
appellants
denied
the
charges
and
consequently trial commenced. Both the
sessions trial have been tried together.

6. The prosecution in order to
establish the charges against accused
appellants produced oral testimonies of
following witnesses:-

1. Tahzeeb Ahmad

PW-1

2.
 Majid Ali PW-2

PW-2

3.
 V. N. Singh PW-3

PW-3

4. Dr. Chiranji Lal PW-4

 PW-4

5.
 Panna Lal Sharma PW-5

 PW-5

6.
 R.A.S. Yadav PW-6

 PW-6

7. Braj Kumar PW-7

PW-7

8. M.C. Gautam PW-8

 PW-8

9. Virendra Singh PW-9

 PW-9

10. Charan Singh Yadav PW-10

 PW-10

11. Dharam Pal Singh PW-11

 PW-11

12. Wasif Ali PW-12

PW-12

13. Dr. Sangeeta Garg PW-13

 PW-13

14. Dr. Vinesh Kumar PW-14

 PW-14

7. Documentary evidences have also
been adduced by the prosecution consisting
of two FIRs as Ex.Ka. 4 & 14; written
report as Ex.Ka.1; recovery memo of
bloodstained and plain earth as Ex.Ka. 17;
recovery memo of knife and arrest as Ex.
Ka.11; postmortem report Ex.Ka. 3; two
site plan with index as Ex.Ka.12 & 16.

8. On the basis of oral and
documentary evidence, thus adduced, the
trial court has found the accused appellants
guilty of offence and has consequently
convicted
them.
Aggrieved
by
the
judgement of conviction and sentence the
9 All. Salim @ Pappu Vs. State of U.P.
957
accused appellants have preferred these
appeals before this Court.

9. On behalf of the accused appellants
three submissions have been made. First
and foremost it is urged that the accused
appellants have been falsely implicated in
the present case and the weight of evidence
on record does not support their conviction
and sentence. It is then urged that the
incident, as alleged by the prosecution,
occurred at spur of the moment and there
was neither any pre-meditation nor any
common intent to commit the offence. It is,
therefore, argued that section 34 IPC
cannot be invoked in the facts of the case
since common intention on part of the two
accused appellants was clearly lacking. It is
submitted that the accused appellants can at
best be punished for their individual act and
not under section 302 read with Section 34
IPC. It is lastly urged stated that only a
single stab wound has been inflicted in the
heat of the moment and, therefore, intent to
murder the deceased was not established. It
is submitted that there was no intention on
part of the accused appellants to murder the
deceased Fasiuddin and the incident
occurred over a trivial issue, at the spur of
the moment without any pre-meditation
and, therefore, even if section 34 IPC is
applied, yet, none of the accused appellants
are liable to be punished under section 302
IPC and can at best be punished under
section 304 part II IPC. It is also submitted
that though the accused appellant Saleem
has been granted bail vide order dated
22.01.2009 but the accused appellant Firoz
is in jail since 28.08.2008.

10. Learned A.G.A. for the State, per
contra, states that the weight of evidence
clearly supports the conclusion drawn by
the trial court inasmuch three accused
persons committed the offence with a
common intent and, therefore, section 34
IPC rightly invoked. It is urged that the
intent on record shows that all three
accused went inside the workshop to fetch
knife whereafter the incident occurred and,
therefore, there is clear evidence that
common intention was formed at the spur
of the moment and the argument that the
accused appellants can be punished for
their individual role cannot be accepted.
Learned A.G.A. also states that this is a
case of broad daylight incident in which
one person is killed while other sustained
grievous
stab
wound,
as
such
the
conviction
and
sentence
awarded
to
accused
appellants
suffers
from
no
infirmity.

11. We have heard Sri Kamlesh
Kumar, learned counsel, assisted by Sri
Kandarp Srivastava and Sri Pankaj Govil
for the accused appellants and Km. Meena,
learned A.G.A. for the State and have
perused the records brought on record.

12. We may note that accused Dilshad
who was assigned the role of stabbing the
deceased Fasiuddin was found juvenile at
the time of occurrence of crime and was
dealt with as per the law applicable.

13. Prosecution case in addition to
documentary evidence, referred to above,
has adduced oral testimonies of Tahzeeb
Ahmad PW-1, Injured Witness Mazid Ali
PW-2 and Wasif Ali PW-12 to prove the
incident. PW-1 has supported the FIR
version that he had come to workshop of
Mazid Ali at 09.30 in the morning and in
his
presence
Mazid,
Fasiuddin
and
Moinuddin asked the accused persons to
sprinkle water before sweeping the area so
that dust does not come to their workshop
on which the accused persons started
abusing and when they were objected then
958 INDIAN LAW REPORTS ALLAHABAD SERIES
the three accused with a common intent
came forwarded and Saleem caught hold of
deceased Fasiuddin while Dilshad stabbed
him. Firoz is stated to have stabbed Mazid.
In his cross-examination PW-1 has claimed
that his workshop is at a distance of nearly
750 meters from the place of occurrence
and he used to get his machine repaired at
the workshop of Firoz. He has explained
that in FIR he has narrated that he had gone
to meet Mazid and that his visit was due to
any work was not disclosed. Sohail has a
shop about 3-4 kilometres from the place of
occurrence. PW-1 has also stated that
alongwith him Sohail and Mazid are from
the same place and that the incident
occurred when they reached the workshop
of Mazid. The witness also stated that
alongwith him Ahteshyam and one other
worker
went
to
police
station
but
Ahteshyam, who happens to be brother-inlaw of Mazid, has not been produced.
Ahteshyam was called on phone who
arrived 35-40 minutes later by his Maruti
Car. However, they had gone to police
station by rickshaw. It is also stated that
when they took Mazid to police station for
lodging the report he was conscious and in
his senses. PW-1 has stated that the entire
incident occurred within 5-7 minutes. He
has emphasised that the incident occurred
at spur of the moment and they could not
apprehend the accused.

14. PW-2 Mazid Ali (injured witness)
has stated that alongwith him deceased
Fasiuddin and helper Moinuddin were
present at the workshop and Tahzeeb and
Sohail had come to meet them. He has
stated that his workshop adjoins the
workshop of accused appellants. He has
also supported the FIR version and has
stated that with intent to kill him and
Fasiuddin the accused persons stabbed him.
He was admitted to Yasodha Hospital and
that he was operated upon on account of
stab wound.

In the cross-examination the
injured witness Mazid has admitted that the
accused persons used to sweep the area in
front of their workshop in the same way
everyday but no incident in respect of it
had occurred earlier and that it was only on
the date of occurrence that such a dispute
had arisen. He has specifically stated that
Dilshad was not carrying knife when he
was sweeping the area in front of their
workshop and that these persons must have
gone inside the workshop to get the knife
and thereafter stabbed him. He has however
feigned ignorance whether the accused had
gone inside the workshop to fetch the knife
after the altercation and it is not known as
to how much time they took to come out.
He also denied that he sustained injury
elsewhere and they have falsely implicated
the accused appellants.

15. PW-12 Wasif Ali was not shown
to be the person present at the place of
occurrence in the FIR. He has disclosed
that he was standing near the workshop of
Mazid. In his cross-examination he claims
to be running a STD Booth at Kavi Nagar
and used to cross the workshop of Mazid
every
morning.
He
has
denied
the
suggestion that there existed open space
between the workshop of Mazid and the
accused persons.

16. Upon careful examination of the
statement of witnesses PW-1, PW-2 and
PW-12, we find that their presence on the
spot has been explained. PW-1 was
otherwise known to PW-2 as they hail from
same area and his presence at the workshop
cannot be doubted. Similarly, PW-12
alleged that he crossed the workshop of
Mazid everyday in the morning for going to
9 All. Salim @ Pappu Vs. State of U.P.
959
his STD Booth, therefore, his presence on
the spot also cannot be doubted. PW-2 is an
injured witness and place of occurrence is
his workshop. All three witnesses have
supported the FIR version and have clearly
stated the manner in which fight erupted.
They have been consistent in assigning the
role of catching hold to Saleem; stabbing
by Dilshad to Fasiuddin; and stabbing by
Firoz to Mazid. The statement of PW-1,
PW-2 and PW-12 is clearly corroborated by
the medical evidence, which refers to stab
wound caused to deceased Fasiuddin as
also injured PW-2.

17. From the evidence placed before
us we have no doubt that the incident had
actually occurred in front of workshop of
Mazid wherein the accused persons stabbed
Fasiuddin and Mazid, resulting in death of
Fasiuddin and stab wound caused to Mazid.
The finding of the trial court in that regard,
accordingly, is confirmed.

18. It is next to be seen in the facts of
the case as to whether the offence attributed
to accused appellants was committed on
account of common intention between three
accused persons or they are to be held
liable only for their own act.

19. Section 34 IPC is relevant and is
reproduced hereinafter:-

"34. Acts done by several persons
in furtherance of common intention.--When
a criminal act is done by several persons in
furtherance of the common intention of all,
each of such persons is liable for that act in
the same manner as if it were done by him
alone."

20. It is by now well settled that
principles of joint liability in committing an
offence is contemplated under section 34
IPC. The factum of joint liability in
committing the offence is dependent upon
existence of common intention pursuant to
which three accused acted in furtherance of
their common intention.

21. In Ramashish Yadav and others
vs. State of Bihar, (1998) 8 SCC 555 the
Court has observed as in following words:-

"Coming to the question of
applicability of section 34 for the murder of
Tapeshwar, we find from the evidence of
the three eye witnesses that while Ram
Pravesh Yadav and Ramanand Yadav
caught
hold
of
Tapeshwar,
accused
Samundar Yadav and Sheo Layak Yadav
came with gandasa and gave blows on the
head of Tapeshwar, as a result of which
Tapeshwar died, section 34 lays down a
principle of joint liability in the doing of a
criminal act. The absence of that liability is
to be found in the existence of common
intention animating the accused leading to
the doing of a criminal act in furtherance of
such intention. The distinct feature of
section 34 is the element of participation in
action. The common intention implies
acting in concert, existence of a prearranged plan which is to be proved either
from conduct or from circumstances or
from any incriminating facts. It requires a
prearranged plan and it presupposes prior
concert. Therefore, there must be prior
meeting of minds. The prior concert or
meeting of mind may be determined from
the conduct of the offenders unfolding itself
during the course of action and the
declaration made by them just before
mounting the attack."

22. In a recent decision in Gulab vs.
State of U.P. and others being Criminal
Appeal No.81 of 2021 the ingredients of
section 34 IPC has been summed up in para
960 INDIAN LAW REPORTS ALLAHABAD SERIES
24
to
27,
which
are
reproduced
hereinafter:-

"24.
Emphasizing
the
fundamental principles underlying Section
34, this Court held that:

(i) Section 34 does not create a
distinct offence, but is a principle of
constructive
liability;

(ii) In order to incur a joint
liability for an offence there must be a prearranged and pre-mediated concert between
the accused persons for doing the act
actually done;

(iii) There may not be a long
interval between the act and the premeditation and the plan may be formed
suddenly. In order for Section 34 to apply,
it is not necessary that the prosecution must
prove an act was done by a particular
person; and

(iv) The provision is intended to
cover cases where a number of persons act
together and on the facts of the case, it is
not possible for the prosecution to prove
who actually committed the crime.

25. These principles have been
adopted and applied in another two judge
Bench decision of this Court in Chhota
Ahirwar v. State of Madhya Pradesh, 2020
(213) AIC 66. Justice Indira Banerjee
speaking
for
the
two-judge
Bench
observed:

"26. To attract Section 34 of the
Penal Code, no overt act is needed on the
part of the accused if they share common
intention with others in respect of the
ultimate criminal act, which may be done
by any one of the accused sharing such
intention [see Asoke Basak [Asoke Basak
v. State of Maharashtra, (2010) 10 SCC 660
: (2011) 1 SCC (Cri) 85], SCC p. 669]. To
quote from the judgment of the Privy
Council in the famous case of Barendra
Kumar Ghosh [Barendra Kumar Ghosh v.
King Emperor, 1924 SCC OnLine PC 49 :
(1924-25) 52 IA 40 : AIR 1925 PC 1],
"they also serve who stand and wait".
27. Common intention implies acting in
concert. Existence of a prearranged plan
has to be proved either from the conduct of
the accused, or from circumstances or from
any incriminating facts. It is not enough to
have the same intention independently of
each other."

26. In Dhanpal v. State (NCT of
Delhi), 2020 (112) acc 813 (SC) the
appellant had exhorted a co-accused to kill
the deceased. The exhortation was not
repeated by the eyewitnesses in identical
terms. Further, it was also alleged that there
was no neutral witness since all the
eyewitnesses were related to the deceased
and there was a delay in lodging the FIR.
Justice Aniruddha Bose speaking for the
two judge Bench of this Court observed:

"8. There are sufficient materials,
however, to establish that the three
appellants had returned together to the
place of occurrence and attacked the
deceased victim with Dhanpal exhorting to
kill Ajay. They had grappled the victim and
said Kamal inflicted multiple injuries on
him with the knife. On the basis of
evidence disclosed, the trial court and the
High Court found that there was prior
meeting of minds of all the four convicts
and all the three appellants had intention
common with that of Kamal. On this point,
the ratio of the judgment of this Court in
Asif Khan v. State of Maharashtra [Asif
Khan v. State of Maharashtra, (2019) 5
SCC 210 : (2019) 2 SCC (Cri) 484] is
relevant. In an earlier case, Rajkishore
Purohit v. State of M.P. [Rajkishore Purohit
v. State of M.P., (2017) 9 SCC 483 : (2017)
3 SCC (Cri) 749], it has been held that to
establish common intention to cause
murder, overt act or possession of weapons
by all the accused persons is not necessary.
9 All. Salim @ Pappu Vs. State of U.P.
961
In Richhpal Singh Meena v. Ghasi
[Richhpal Singh Meena v. Ghasi, (2014) 8
SCC 918 : (2014) 6 SCC (Cri) 424], the
ratio is that in the event the nature of the
assault is such that the target person is
likely to die from the injuries resulting
therefrom, the accused must be deemed to
have known the consequences of his act.

.....

11. We find the approach of the
trial court and the High Court in appeal was
proper in dealing with the discrepancies
pointed out on behalf of the appellants. The
delay in registering the FIR has been
explained
properly
and
judgment
of
conviction cannot fail for that reason. It is a
fact that the eyewitnesses were known to
the deceased and there was no neutral
witness. But for that factor alone we cannot
exonerate the appellants, particularly since
the court of first instance and the first
appellate court have already examined the
evidence and given their findings in favour
of prosecution. We do not find any error in
the judgment of conviction and order of
sentence so far as the appellants are
concerned. All the three appeals are
dismissed."

Recently in Sandeep v. State of
Haryana, 2021 (225) AIC 108 (SC) a twojudge Bench of this Court held that an
exhortation
given
by
an
accused
immediately before a co-accused fired a
shot killing the deceased would prove his
involvement
in
the
crime
beyond
reasonable doubt. Accordingly, this Court
upheld the conviction of the accused under
Sections 302 and 34 of the IPC.

27. The evidence on the record
clearly establishes a common intention in
pursuance of which the appellant exhorted
Idrish to kill the deceased. The prosecution
is not required to prove that there was an
elaborate plan between the accused to kill
the deceased or a plan was in existence for
a long time. A common intention to commit
the crime is proved if the accused by their
words or action indicate their assent to join
in the commission of the crime. The
appellant reached the spot with a lathi,
along with Idrish who had a pistol. The
appellant's exhortation was crucial to the
commission of the crime since it was only
after he made the statement that the enemy
has been found, that Idrish fired the fatal
shot. The role of the appellant, his presence
at the spot and the nature of the exhortation
have all emerged from the consistent
account of the three eye-witnesses."

23. In light of the settled position in
law we are required to examine as to
whether there existed common intention on
part
of
the
accused
appellants
in
committing the offence.

24. It may be noticed that all the three
accused are real brothers. They were
present when the incident occurred in
which they were objected to by the
deceased and injured from sweeping before
sprinkling water, so as to avoid dust
coming to their workshop. The sudden fight
which erupted thereafter was between the
three brothers on one side and the deceased
as well as injured on the other side. PW-2
in his statement has stated that Dilshad was
not carrying knife when he was sweeping
the area in front of their workshop. It
appears otherwise logical that a person
sweeping the floor outside his workshop
would not be carrying arms (knife here).
This witness appears to be a natural witness
who has asserted that he had not seen the
accused persons going inside the workshop
to fetch knife but it remains undisputed that
the injury was caused by the accused
persons to Fasiuddin and Mazid. These
persons must have got the knife after the
fight, though in the heat of moment at that
962 INDIAN LAW REPORTS ALLAHABAD SERIES
spur. Specific role has been assigned to all
three accused inasmuch as one of the
brothers caught hold of the deceased
Fasiuddin while Dilshad stabbed him and
Firoz stabbed Mazid. The manner in which
offence occurred clearly indicates that at
spur of the moment common intention was
formed between the three brothers which
resulted in stab injury caused to deceased
Fasiuddin and injured witness Mazid.

25. Law is otherwise settled that in
order to incur joint liability for an offence
there need not be a long interval between
the act or pre-meditation and the plan may
be formed suddenly. We, therefore, are in
agreement with the conclusion drawn by
the trial court that section 34 IPC would be
attracted in the facts of the case and each of
the accused would be held liable for
offence under section 302 IPC.

26. This takes us to the last question
urged on behalf of the accused appellant in
the present two appeals whether trial court
was justified in sentencing the accused
appellants
under
section
302
IPC.
According to the accused appellants the
maximum punishment which could be
imposed upon them is under section 304
part II IPC.

27. The prosecution case clearly is
that it was at the spur of moment that a
fight erupted when the deceased and
injured objected to sweeping the area in
front of workshop of accused appellants
without sprinkling water. The witnesses
present on spot i.e. PW-1, PW-2 and PW-12
have stated that it was at spur of the
moment that incident occurred in which
one of the persons has died while other
sustained stab injury. It is also admitted to
the prosecution witnesses that no such
incident occurred earlier although accused
appellants used to clean the area in similar
fashion. In such circumstances, it is
apparent that there was no pre-meditation
on part of the accused appellants in
committing the offence which occurred at
the spur of moment.

28. Learned counsel for the accused
appellants has urged that the incident in
question would be covered under the fourth
exception to section 300 IPC, which reads
as under:-

"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."

29. We may at this stage refer to the
judgment of the Supreme Court in State of
Uttarakhand v. Sachendra Singh Rawat,
(2022) 4 SCC 227 wherein the Court
examined Exception 4 to Section 300 IPC
and observed as under:

"8. In Virsa Singh [Virsa Singh v.
State of Punjab, AIR 1958 SC 465 : 1958
Cri LJ 818] , in paras 16 and 17, it was
observed and held as under : (AIR p. 468)

"16. ... The question is not
whether the prisoner intended to inflict a
serious injury or a trivial one but whether
he intended to inflict the injury that is
proved to be present. If he can show that he
did not, or if the totality of the
circumstances justify such an inference,
then, of course, the intent that the section
requires is not proved. But if there is
nothing beyond the injury and the fact that
the appellant inflicted it, the only possible
inference is that he intended to inflict it.
Whether he knew of its seriousness, or
9 All. Salim @ Pappu Vs. State of U.P.
963
intended serious consequences, is neither
here nor there. The question, so far as the
intention is concerned, is not whether he
intended to kill, or to inflict an injury of a
particular
degree
of
seriousness,
but
whether he intended to inflict the injury in
question; and once the existence of the
injury is proved the intention to cause it
will be presumed unless the evidence or the
circumstances
warrant
an
opposite
conclusion. But whether the intention is
there or not is one of fact and not one of
law. Whether the wound is serious or
otherwise, and if serious, how serious, is a
totally separate and distinct question and
has nothing to do with the question whether
the prisoner intended to inflict the injury in
question.

17. It is true that in a given case
the enquiry may be linked up with the
seriousness of the injury. For example, if it
can be proved, or if the totality of the
circumstances justify an inference, that the
prisoner only intended a superficial scratch
and that by accident his victim stumbled
and fell on the sword or spear that was
used, then of course the offence is not
murder. But that is not because the prisoner
did not intend the injury that he intended to
inflict to be as serious as it turned out to be
but because he did not intend to inflict the
injury in question at all. His intention in
such a case would be to inflict a totally
different injury. The difference is not one of
law but one of fact;...."(emphasis supplied)

9. In Dhirajbhai Gorakhbhai
Nayak [Dhirajbhai Gorakhbhai Nayak v.
State of Gujarat, (2003) 9 SCC 322 : 2003
SCC (Cri) 1809] , on applicability of
Exception 4 to Section 300 IPC, it was
observed and held in para 11 as under :
(SCC pp. 327-28)

"11. The Fourth Exception of
Section 300 IPC covers acts done in a
sudden fight. The said Exception deals with
a case of prosecution (sic 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
964 INDIAN LAW REPORTS ALLAHABAD SERIES
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"."

10.
In
Pulicherla
Nagaraju
[Pulicherla Nagaraju v. State of A.P., (2006) 11
SCC 444 : (2007) 1 SCC (Cri) 500] , this
Court had an occasion to consider the case of
culpable homicide not amounting to murder
and the intention to cause death. It was
observed and held by this Court that the
intention to cause death can be gathered
generally from a combination of a few or
several of the following, among other,
circumstances:

(i) nature of the weapon used;

(ii) whether the weapon was carried
by the accused or was picked up from the spot;

(iii) whether the blow is aimed at a
vital part of the body;

(iv) the amount of force employed
in causing injury;

(v) whether the act was in the
course of sudden quarrel or sudden fight or
free-for-all fight;

(vi) whether the incident occurs
by chance or whether there was any
premeditation;

(vii) whether there was any prior
enmity or whether the deceased was a
stranger;

(viii) whether there was any
grave and sudden provocation, and if so,
the cause for such provocation;

(ix) whether it was in the heat of
passion;

(x) whether the person inflicting
the injury has taken undue advantage or has
acted in a cruel and unusual manner;

(xi) whether the accused dealt a
single blow or several blows."

30. Necessary ingredients to attract
4th Exception to section 300 IPC are
clearly present in the facts of the present
case inasmuch as death is caused; there
existed no pre-meditation; it was a sudden
fight; the offender has not taken undue
advantage or acted in a cruel or unusual
manner, therefore, the case in hand clearly
falls under fourth exception to section 300
IPC.
The
accused
appellants
are
accordingly
sentenced
to
ten
years
imprisonment under Section 304 Part I IPC,
by substituting the sentence of life
imprisonment awarded to them under
Section 302 IPC.

31. It is on record that the accused
appellant Saleem @ Pappu was arrested
and was on bail during trial and has also
been granted bail by this Court on
12.10.1997, during pendency of appeal.
Accused appellant Firoz was arrested on
12.10.1997 and he is in jail since then and
by
now
he
has
already
undergone
incarceration of nearly 25 years.

Since the appellant Saleem @
Pappu is on bail, his sureties and bonds
9 All. State of U.P. Vs. Balram Singh & Anr.
965
stand cancelled and he be taken into
custody for serving his remaining sentence,
and the appellant Firoz shall be released
from Jail, forthwith, unless he is wanted in
any other case, subject to compliance of
Section 437A Cr.P.C. Fine imposed upon
the accused appellants is maintained.

32. Both the appeals are thus partly
allowed on above terms.
----------
(2022) 9 ILRA 965
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2022

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
HON'BLE VIKAS BUDHWAR, J.

Government Appeal No. 23 of 2019

State of U.P. ...Appellant
Versus
Balram Singh & Anr. ...Respondents

Counsel for the Appellant:
G.A.

Counsel for the Respondents:

Criminal Law - Criminal Procedure Code,
1973 - Sections 154, 378 & 378(3) -
Indian Penal Code,1860 - Sections 302,
323, 504 & 506 - Scheduled Castes and
Scheduled Tribes Prevention of Atrocities
Act,1989 - Sections 3(2) & 5 - Arms Act,
1959- Section - 25 - Constitution of India,
1950 - Article 136 - Government Appeal -
against order of Acquittal - offence of murder
with fire arm injuries - FIR - recovery of rifle &
cartridges - Post-mortem - site plane all are
against accused - trial court acquitted all the
accused - appeal - while analysing the case from
four
concerns
it
reflect
that,
not
only
unexplained delay in lodging FIR but also non
presence of signature of first informant (PW1) in
Punchnama, coupled with material contradiction
in St.ments of PW1 & PW4, with the facts that
ballistic report does not supports the story of
persecution and why first informant (PW1)
leaving the injured deceased from the place of
incident at mercy of nature - shows that entire
prosecution case is concocted and encompasses
with weak evidence - acquittal by trial court is
well reasoned which needs no interference -
Leave to appeal rejected - consequently,
Government.(Para - 39, 40, 43) Appeal stands
dismissed.

Appeal dismissed. (E-11)

List of Cases cited:

1. Rajesh Prasad Vs St. of Bihar& anr., 2022 (3)
SCC 471,

2. Apren Joseph @ Current Kunjukunju & ors.
Vs The St. of Kerala, (1973) 3 SCC 114,

3. Tara Singh & ors. Vs St. of Pun. 1991 Supp
(1) SCC 536

4. P. Rajagopal & ors. Vs St. of T. N. , (2019) 5
SCC 403

(Delivered by Hon'ble Vikas Budhwar, J.)

1. Challenge in this appeal u/s 378 of
code
of
Criminal
Procedure
1973
(hereinafter referred to as Cr.P.C.) is made
to the judgment and order dated 29.08.2018
passed by Second Special Judge/Additional
District and Sessions Judge, Hamirpur in
Session Trial No. 128/1997 (State of U.P.
Vs. Balram Singh and 2 others) u/s 302,
323, 504, 506 IPC read with section 3(2)5
SC/ST Act, P.S. Khanna, District Hamirpur
in Case Crime No. 141/1997 as well as
Session Trial No. 143/1997 (State of U.P.
Vs. Khalbhaliya) in Case Crime No.
148/1997, u/s 25 Arms Act, P.S. Khanna,
District Hamirpur acquitting the accused
herein.

2. Brief facts of the case so unfolded
by the prosecution are to the effect that the
informant Dully Chand S/o Kamtu R/o