# Satish Kashyap & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 2 ILRA 462
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-02-10
- **Case number:** Criminal Appeal No. 3433 of 2007
- **Bench:** Bachchoo Lal, Subhash Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-kashyap-anr-in-jail-v-state-of-u-p-46826
- **Pages:** 12

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to- conviction-modification of
sentence-sudden fight -no pre-meditation
or pre-plan -no previous enmity-deceased
was drunken at the time of occurrence- all
this
resulted
under
influence
of
intoxication and in the spur of momentneither
appellants
had
taken
undue
advantage nor acted in cruel or unusual
manner-appellants held guilty u/s 304
Part-I r/w 34 IPC not u/s 302/34 IPC as
the case attracted the exception 4 of
Section 300 IPC. (Para 1 to 49)

B. The fourth exception of section 300 IPC
covers act done in a sudden fight. injuries
caused to deceased were not intentional
but
incident
took
place
under
the
influence
of
intoxication
of
parties.
deceased himself started conversation
with the appellants who were silent and
not having any weapon. there was no
premeditation and the appellants did not
take undue advantage and had also not
acted in cruel manner. In essence it was
submitted that section 302 IPC has no
application
and
in
this
case
Fourth
Exception of Section 300 IPC applies.
(Para 40 to 47)

The appeal is allowed. ( E-5)

List of Cases cited:-

## Text

462 INDIAN LAW REPORTS ALLAHABAD SERIES

28. Let a copy of this judgment
alongwith the trial court record be sent to
the Court and Jail Authorities concerned
for compliance.

29. We are really pained and wish to
draw the attention of the authorities
concerned through Registrar General that
where the accused are sentenced to life
imprisonment, even if the appeals are
pending
in
the
High
Court,
the
government should periodically exercise
power under Section 432 & 433 of
Cr.P.C. and the committee at each
districts be apprised of these provisions.

30. We are really pained that
accused are in jail for 20 years and the
matters are not even placed before the
Court. The Registry to ensure that all
matters in which accused are in jail for
longer period of incarceration and in
which more than half of their tenure is
over, those matters be listed periodically
before the Court.
----------
(2021)02ILR A462
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.02.2021

BEFORE

THE HON'BLE BACHCHOO LAL, J.
THE HON'BLE SUBHASH CHANDRA
SHARMA, J.

Criminal Appeal No. 3433 of 2007
with
Criminal Appeal No. 3179 of 2007

Satish Kashyap & Anr.
 ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Kuldeep Johri, Sri A.K. Gaur, Sri M.K.
Upadhyay, Sri Manish Tiwary, Sri Prabhat
Pandey, Sri Zafar Abbas, Sri Ashwini Kumar
Awasthi

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

A. Criminal Law - Code of Criminal
Procedure, 1973- Section 374(2) - Indian
Penal
Code,
1860-Section
302/34challenge to- conviction-modification of
sentence-sudden fight -no pre-meditation
or pre-plan -no previous enmity-deceased
was drunken at the time of occurrence- all
this
resulted
under
influence
of
intoxication and in the spur of momentneither
appellants
had
taken
undue
advantage nor acted in cruel or unusual
manner-appellants held guilty u/s 304
Part-I r/w 34 IPC not u/s 302/34 IPC as
the case attracted the exception 4 of
Section 300 IPC. (Para 1 to 49)

B. The fourth exception of section 300 IPC
covers act done in a sudden fight. injuries
caused to deceased were not intentional
but
incident
took
place
under
the
influence
of
intoxication
of
parties.
deceased himself started conversation
with the appellants who were silent and
not having any weapon. there was no
premeditation and the appellants did not
take undue advantage and had also not
acted in cruel manner. In essence it was
submitted that section 302 IPC has no
application
and
in
this
case
Fourth
Exception of Section 300 IPC applies.
(Para 40 to 47)

The appeal is allowed. ( E-5)

List of Cases cited:-

1. St.of H. P. Vs Jeet Singh (1999) 38 ACC 550
SC

2. Nathuni Yadav & ors. Vs St. of Bih. & ors.
(1997) 34 ACC 576,

3. Thaman Kumar Vs St. of U.T. of Chadigarh
(2003) 47 ACC 7
2 All. Satish Kashyap & Anr. Vs. State of U.P.
463
4. Brahm Swaroop & anr. Vs St. of U.P. (2011 )
6 SCC 288

5. Dalip & ors. Vs St. of Punj.(1953) AIR SC 364

6. Masalti Vs St. of U.P.(1965) AIR SC 202

7. Rameshwar & ors. Vs St. (2003) 46 ACC 581

8. Pappu Vs St. of M.P.,Crl. Appl. No. 751 of
2006

9. Chhabinath & Ors. Vs St. of U.P.,Crl. Appl.
No. 8238 of 2007

(Delivered by Hon'ble Subhash Chandra
Sharma, J.)

1. Both criminal appeals emanate
from the common judgment and order
dated
21.03.2007
passed
by
learned
Additional Sessions Judge, Court No. 3,
Pilibhit in Sessions Trial No. 98 of 2003
(State Vs. Harish Kashyap and two others)
arising out of Crime No. 414 of 2002 under
Section
302/34
IPC,
Police
Station
Barkheda, District Pilibhit by which
appellants
have
been
convicted
and
sentenced under Section 302 read with
Section 34 IPC with life imprisonment and
fine of Rs. 5,000/- for each, in default of
payment of fine to undergo additional
imprisonment for a period of six months,
therefore these appeals are heard and being
decided together.

2. The prosecution case in brief is that
on 17.11.2002 deceased Veerpal (brother of
informant Harpal Kashyap) was invited by
Lalu Kashyap where Veerpal, Gopal and
Lalu Kashyap took food in the feast and
thereafter Veerpal came back to his house.
They
were
talking
on
the
terrace,
meanwhile Harish, Satish s/o Kallu r/o P.S.
Barkheda came there and started to talk to
Veerpal. Veerpal said to Harish that
marriage of daughter of Rampal had been
engaged with his brother Satish. Why did
he use to stay in the house of Rampal, he
would not let it go on. While conversation
he went to door of Kalicharan with Harish
and Satish. Meanwhile sound of fire was
heard by informant and he went there. In
the way, he met to Lalu and Gopal who
also went with him. They saw that Harish
was equipped with Kasi Satish with danda
and Om Prakash with lathi. Harish, Om
Paraksh and Satish were beating Veerpal.
Informant, Lalu and Gopal interfered then
accused persons went away towards their
house. This incident took place at about 11
p.m. In the night. Injured Veerpal was
brought to Government Hospital, Barkheda
by informant with the help of Lalu and
Gopal, where doctors declared him dead.
He lay dead body under pakad tree in the
compound of hospital and arrived at police
station, lodged an F.I.R. by giving tahreer
as crime no. 414 of 2002 under Section 302
IPC against Harish, Satish and Om
Prakash. Entry of which was made in the
G.D. Report no. 2. Investigation of the case
was handed over to S.I. A.A. Khan who
moved to the place of occurrence.

3. Inquest of deceased Veerpal was
conducted
by
S.I.
A.A.
Khan
on
18.11.2002 at 7 a.m. at P.H.C. Barkheda.
Inquest report was prepared in presence of
witnesses. Dead body was got sealed. Other
essential papers were prepared and dead
body was handed over to constable Sajjan
Saran and V.C. Rajesh for post-mortem.

4. Dr. Prabhat Mishra conducted the
autopsy on the dead body of Veerpal on
18.11.2002 at 3 p.m. & prepared report
Exhibit Ka-6. Details of post-mortem are as
under:

External Examination: Time after
death about half day. He was aged about 40
464 INDIAN LAW REPORTS ALLAHABAD SERIES
years. Average built body. Rigor mortis
was present both upper and lower limbs.
Left eye swelling & closed and right eye
half opened. Mouth half opened clotted
blood present in side. Nostrils (both) no
sign of decomposition.

Ante-mortem
injuries:(1)
Multiple lacerated wound in area 6 cm x 2
cm x bone deep on left side of forehead just
above left eyebrow underneath frontal bone
fractured. (wound showing depressed are
due to fractured skull bone).

(2) Contusion over left upper eye
on the lid 6 c.m. x 3 c.m. Left eye closed
due to swelling.

(3) Abraded contusion 4 c.m. X 2
c.m. On left side of cheek, 5 c.m. From left
eye lateral ankle.

(4) Incised wound 5 c.m. X 2
c.m. X bone deep on left side of skull, 7
c.m. Above left ear underneath left parietal
bone cut & fractured.

(5) Multiple abraded contusion 7
c.m. X 1 c.m., 4 c.m. Below right elbow
joint on posterior side.

(6) Abrasion 3 cm x 1 cm on
posterior (dorsal) aspect of right palm.

(7) abrasion 1 cm x 1 cm on front
of chest, 11 cm below right nipple.

On Deeper Dissection found: 1.
Left
side
frontal
bone
fractured,
membranes lacerated, brain were found
lacerated (injury no. 1), large hemeolema
present over nostrils and brain matters. 2.
Left side parietal bone cut and fractured.
Membranes & brain lacerated. Large
hoemolema present over membranes and
brain matter (injury no. 4).

Internal examination: Scalp left
side frontal and parietal bone-fractured.
Membranes-lacerated
left
side.
Brainlacerated with haemolema. Base-NAD.
Vertebrae-NAD. Spinal card not exposed.
Thorax, wall, ribs and cartilages-NAD.
Pleura-NAD. Larynx trachea and bronchiNAD. Both lungs-NAD. ParicardiumNAD. Both chambers empty. VesselsNAD.
Paritoneum-NAD.
Cavity-NAD.
Teeth
15/16-NAD.
Oesophagus-NAD.
Contents of stomach-200 ml. semi digested
food material was present, fecal matter and
gases were present in small and large
intestine, Liver-NAD 100gm, gallbladderone half full. Pancreas-NAD. Spleen-NAD,
160 gm, both kidneys-200 gm-NAD.
Urinary bladder-empty. Generation organsNAD. Cause of death coma due to
antemortem injuries.

5. Investigating Officer visited the
place of occurrence from where he
collected blood stained and plain soil
putting it into separate boxes sealed them
and prepared fard Ext. Ka-3 on 18.11.2002.
On 19.11.2002 on the instance of accused
Om Prakash Kashyap one lathi was
recovered from his house which was fitted
with iron on its top, it was taken into
custody and recovery memo was prepared
in presence of witnesses. On 23.11.2002
accused Harish and Satish were arrested at
about 11.30 o'clock and examined by
Investigating Officer, they told him about
Kasi and danda used in causing injuries to
deceased Veerpal. On their instance kasi
and
danda
with
blood
stains
were
recovered from their house. Recovery
memo was prepared in presence of
witnesses. These articles along with cloths
of deceased found on his body were sent to
Forensic Science Laboratory, Agra for
examination.

6. After inspection of place of
occurrence, Investigating Officer prepared
the site plan on 18.11.2002 and recorded
the statements of witnesses conversant to
the facts of case, thereafter concluded the
investigation and found a case, prima facie
made out under Section 304 IPC. After
2 All. Satish Kashyap & Anr. Vs. State of U.P.
465
preparing the charge sheet, he submitted it
to the court concerned.

7. The cognizance of the offence was
taken by learned Additional Chief Judicial
Magistrate-I who provided copies of
prosecution papers to accused persons in
compliance of Section 207 Cr.P.C. and
committed the case to the court of session
for trial.

8. Learned trial court framed the
charge under Section 302 read with Section
34 IPC on the basis of material on record
and after giving opportunity of hearing to
appellants. Charge was read-over and
explained to them. They did not plead
guilty but denied it and claimed for trial.
Consequently,
case
was
fixed
for
prosecution evidence.

9. The prosecution examined P.W.1
Harpal, P.W.2 Gopal as witnesses of fact.
P.W.3 constable Om Prakash who prepared
F.I.R. on the basis of Tahreer. P.W.4 Raja
Ram @ Rajan who is witness of fard recory
of lathi. P.W. 5 Dr. Prabhat Mishra who
conducted
post-mortem
of
deceased
Veerpal and prepared the post-mortem
report. P.W.6 Kaderam witness of fard
recovery relating to danda. P.W.7 S.I.
Ashif
Ali
Khan
who
conducted
investigation of the case.

10. After conclusion of prosecution
evidence statement of appellants were
recorded under Section 313 Cr.P.C. in
which they negated the statements made by
witnesses before the court and said that
witnesses had stated falsely due to enmity.
Satish and Harish also said that they used
to go to the house of Rampal which
enraged deceased and his brother as a
result, they had been implicated falsely.
Likewise, appellant Om Prakash said that
he is relative of Satish, therefore implicated
falsely.

11. Appellants were given an
opportunity for defence but they did not
adduce any evidence in their support.

12. Learned trial Court heard the
argument for prosecution as well as
appellants, passed the judgment and order
dated 21.03.2007 in which he found all of
the appellants guilty under Section 302
read with Section 34 IPC and sentenced to
them for rigorous imprisonment for life
with a fine of Rs. 5,000/- each and in
default of payment of fine to undergo six
months additional imprisonment. Against
this judgment and order, these appeals have
been preferred.

13. We heard Sri Prabhat Pandey,
learned counsel for the appellants as well as
Sri Rajesh Mishra, learned A.G.A. for the
State and perused the record.

14. Learned counsel for the appellants
submits that the judgment and order passed
by the learned trial court is against
evidence available on record which is bad
in the eyes of law and based on the
testimony of interested witnesses those are
relatives of deceased. No any independent
witness
has
been
examined,
though,
occurrence took place in residential area.
Even the person in front of whose door
occurrence took place has not been
examined.
Prosecution
has
failed
to
establish the motive of crime, therefore, no
offence is made out against the appellants
under Section 302 IPC. In spite of this it
has come in the evidence of prosecution
witnesses that deceased and appellants
were under influence of intoxication of
wine and there was altercation between
them relating to the matter of appellants'
466 INDIAN LAW REPORTS ALLAHABAD SERIES
(Satish and Harish) staying in the house of
Rampal. There was no pre-meditation or
plan in the minds of appellants to murder
the deceased. If, it is found that prosecution
has proved its case then it only goes to the
extent of exception no. 4 of Section 300
which brings the case within the purview of
culpable of homicide not amounting to
murder and punishable under Section 304
IPC. In this way, appeals deserves to be
allowed.

15. Learned A.G.A. opposed the
submissions made by learned counsel for
the appellants and urged that in this case,
appellants caused injuries to the deceased
with lathi, danda and kassi. The injuries
inflicted were sufficient in the ordinary
course of nature to cause the death of
deceased. The case does not fall within the
ambit of exception 4 to Section 300 in any
way. Prosecution witnesses are relatives of
deceased, it is true but on account of
relation they cannot be said to be
unreliable. They are eye witnesses of the
case and they have named the appellants
without
any
enmity.
Such
relative
witnesses cannot conceal the truth and also
the real culprits. On account of village
(mohalla) rivalry, no person dares to
become a witness in a case like murder. In
such circumstances, the submissions made
by learned counsel about non-examination
of independent witness is not tenable. The
evidence on record is sufficient on the basis
of which learned trial judge has concluded
the conviction of appellants which is right
in the eye of law. There is no illegality or
impropriety. The appeals are force less and
liable to be dismissed.

16. From the submissions and perusal
of record the following questions emerge
for consideration of this Court as to
whether motive is absent, witnesses are
relatives and no independent witnesses
have been examined. The injuries caused to
deceased are not intentional but incident
took
place
under
the
influence
of
intoxication of parties during altercation
which brings the case under exception 4 of
Section 300.

17. Before we deal with the
contentions raised by learned counsel for
the appellants, it will be convenient to take
note of the evidence as adduced by the
prosecution.

18. P.W.1 Harpal is the informant
who deposed that on the day of incident,
there was baptism ceremony of the son of
Lalu Kashyap at his home. Veerpal was
invited to the feast in the evening when
Veerpal came back from the feast and on
the terrace of Gopal, Lalu Kashyap and
Veerpal were talking. He was present in his
hut situated beside it. Meanwhile Harish
and his brother Satish came there from the
house of Rampal in the neighbor-hood and
started talking to Gopal, Veerpal and Lalu.
His brother Veerpal told Harish that the
marriage of daughter of Rampal had been
engaged with his brother Satish why did he
stay in the house of Rampal and telling this
bad, he forbade him from coming to the
house of Rampal. After this Harish, Satish
and Veerpal went towards the north
direction while talking. After a while he
heard the sound of fire and went towards
that side with Lalu and Gopal. Where he
saw that in-front of door of Kalicharan;
Harish, Satish and Omprakash were beating
to his brother Veerpal with kasi, lathi and
danda. Harish was equipped with Kasi,
Satish with danda and Om Prakash with
lathi. It was about to 11 o'clock in the
night, at that time electric bulb was
lightening outside the house of Ram
Charan. In the light of that bulb, he
2 All. Satish Kashyap & Anr. Vs. State of U.P.
467
identified the accused persons when he
along with two others went there and
scolded to accused persons, they fled away.
Injured
Veerpal
was
brought
to
Government Hospital, Barkheda where
doctor told them that Veerpal had died.
Meanwhile, members of his family came
there and leaving them with the dead body,
he went to the police station and lodged an
F.I.R. after getting tahreer scribed by
Lalaram Tailor.

This witness was subjected to
gruel cross-examination by the learned
counsel for the appellants in which the
witness has not disclosed any such fact
which weakens his testimony. He has
affirmed the fact of beating by the
appellants-Satish, Harish and Omprakash.

19. P.W.2-Gopal deposed that there
was baptism ceremony of son of Lalu
Kashyap in his town in which Veerpal and
he were invited in the feast. Veerpal and he
came back after taking food in the feast and
started talking on his terrace in presence of
Lalu Kashyap, meanwhile Harish, Satish
came there from the house of Rampal.
Veerpal said to Harish & Satish that Satish
had been engaged to be married in the
house of Rampal and before marriage they
(both) used to stay in his house which
should not go on. At this conversation
started among Harish, Satish and Veerpal,
thereafter, all the three persons while
talking went to the north direction, he
(Gopal) and Lalu remained sitting on the
terrace after a while sound of fire was
heard and Harpal came out from his hut
and asked about fire, thereafter they went
towards the direction sound of fire was
heard. As they reached to the house of
Kalicharan, they saw Harish, Satish and
Omprakash beating to Veerpal. Harish was
equipped with Kasi, Satish with danda and
Om Prakash with lathi. It was at about 11
o'clock in the night. There was an electric
bulb light outside the house of Kalicharan.
He identified the accused persons in that
light. On scolding by them, accused
persons fled away. Veerpal sustained so
many
injuries.
He
was
brought
to
Government Hospital, Barkbheda where
doctor declared him to have died.

This witness has also faced gruel
cross-examination on behalf of learned
counsel for appellants. During crossexamination, he has again stated that he
along with Harpal and Lalu reached to the
house of Kalicharan. He further stated that
he saw Veerpal and appellants while
standing there, meanwhile, marpeet began.
No such statement has been made as to
indicate his absence on the place of
occurrence.

20. Both these witnesses remained
intact during cross-examination. No such
contradictions
are
visible
in
their
statements which can make their testimony
unreliable
and
unnatural.
Minor
contradictions are there but they are of
cosmetic nature and not likely to affect the
credibility of their testimony.

21. In the instant case, there is no
enmity between the parties. They belong to
near relation. There is no dispute about
identification of appellants. Appellants
have also not disclosed any enmity with the
informant as well as with prosecution
witnesses which might adversely affect
their reliability and become an excuse for
implicating them falsely while absolving
real culprits.

22. There is not even an iota of
evidence on record which may even
remotely suggest that PW-1 and PW-2 had
468 INDIAN LAW REPORTS ALLAHABAD SERIES
any grouse against the appellants for any
cause to implicate them falsely.

23. Injuries on the person of deceased
Veerpal were caused by kasi, lathi and
danda as stated by P.Ws. 1& 2. Ext. Ka-6
is the post-mortem report in which multiple
lacerated
wound,
contusion
abraded
contusion, incised wound were found on
the body of deceased Veerpal and P.W.5
Dr. Prabhat Mishra has proved the injuries
and told that injury no. 4 was caused with
sharp object like kasi and injuries no. 1, 2,
3, 5 and 7 were likely to be caused with
lathi and danda. All the injuries were
caused at about 11 o'clock in the night on
17.11.2002. He opined that cause of death
was coma due to ante-mortem injuries.

24. In this way injuries found on the
body of deceased Veerpal are proved to
have been caused with kasi, lathi and
danda at about 11 o'clock in the night on
17.11.2002 and it corroborates the manner
of causing injuries resulting into death as
stated by P.W.1 & P.W.2. Thus, the eye
witnesses
account
finds
complete
corroboration from the medical evidence on
record.

25. There is no any inordinate delay
in lodging the F.I.R. Occurrence took place
at 11 o'clock in the night on 17.11.2002 and
F.I.R. was lodged at 0.10 a.m. on
18.11.2002, after one hour and ten minutes.
It cannot be said inordinate delay.

26. P.W.7 Sub-Inspector Ashif Ali
Khan has proved the investigation of the
case. Exhibit Ka-14 and Ka-15 are farad
(recovery memo) of weapons lathi and kasi
used in the commission of crime. He has
also proved the bundles containing boxes
of blood stained and plain soil. Ext. Ka-17
is report from Forensic Science Laboratory
where kasi, lathi & danda, blood stained
and plain soil were sent for analysis in
which blood stains were also found on
them. It proves that kasi, lathi, danda were
used in commission of crime and place of
occurrence was the same as stated by PW-1
and PW-2.

27. Learned counsel has also drawn
attention of this Court towards the absence
of motive to commit murder. He urged that
the prosecution has failed to prove any
motive on the part of the appellants to
commit the crime.

28. It is true that there is no mention
of motive in F.I.R. about the commission of
crime. Even PW-1 and PW-2 have also not
disclosed anything that became the root
cause of committing murder by the
appellants except conversation started on
the part of Veerpal with the appellants in
relation to their stay in the house of Rampal
whereas marriage of daughter of Rampal
was engaged with brother of Harish but
there is no such principle or rule of law that
where the prosecution fails to prove motive
for commission of the crime, it must
necessarily result in acquittal of the
accused. Where ocular evidence is found to
be trustworthy and reliable and finds
corroboration from the medical evidence, a
finding of guilt can safely be recorded even
if the motive for the commission of crime
has not been proved.

29. In State of Himachal Pradesh Vs.
Jeet Singh 1999 (38) ACC 550 SC, it was
held that no doubt it is a sound principle to
remember that every criminal act was done
with a motive but it's corollary is not that
no
offence
was
committed
if
the
prosecution failed to prove the precise
motive of the accused to commit it as it is
almost an impossibility for the prosecution
2 All. Satish Kashyap & Anr. Vs. State of U.P.
469
to unravel full dimension of the mental
deposition of an offender towards the
person whom he offended.

30. In Nathuni Yadav and others
vs. State of Bihar and others 1997 (34)
ACC 576, it was held that motive for
committing a criminal act, is generally a
difficult area for prosecution as one
cannot normally see into the mind of
another. Motive is the emotion which
impels a man to do a particular act and
such impelling cause unnecessarily need
not be proportionately grave to grave
crimes. It was further held that many a
murders have been committed without
any known or prominent motive and it is
quite possible that the aforesaid impelling
factor would remain undiscoverable.

31. In our opinion, in the facts and
circumstances of the case the absence of
an evidence on the point of motive cannot
have any such impact so as to discard the
other reliable evidence available on
record which certainly establishes the
guilt of the accused. In the case of
Thaman Kumar vs. State of Union
Territory of Chandigarh 2003 (47) ACC
7 the Hon'ble Apex Court has reiterated
the
same
view
after
taking
into
consideration the aforementioned cases.

32. The next limb of argument of
learned counsel for the appellants is that
the prosecution had examined highly
interested and relative witnesses and they
have not produced any independent
witness in support of its case. No doubt
the witnesses of fact examined in the case
are real brother and nephew and both of
them are clearly related to the deceased.
Relationship itself is not a ground to
reject the testimony of witness, rather he
would be last person to leave the real
culprit and falsely implicate any other
person.

33. In the case of Brahm Swaroop
and another vs. State of U.P. (2011) 6
SCC 288 the Hon'ble Apex Court in Para
No.21 has observed as under

"merely because the witnesses
were related to the deceased persons, their
testimonies cannot be discarded. Their
relationship to one of the parties is not a
factor that affects the credibility of a
witness, more so, a relation would not
conceal
the
real
culprit
and
make
allegations against an innocent person. A
party has to lay down a factual foundation
and prove by leading impeccable evidence
in respect of its false implication. However,
in such cases the Court has to adopt a
careful approach and analyse the evidence
to find out whether it is cogent and credible
evidence."

34. The Court also referred cases of
Dalip and others vs. State of Punjab A.I.R.
(1953) SC 364; Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202.

35. In Masalti vs. State of U.P.
(A.I.R.) 1965 SC 202, the Hon'ble Apex
Court observed in Para No.14

"but it would, we think, be
unreasonably to contend that evidence
given by witnesses should be discarded
only on the ground that it is evidence of
partisan or interested witnesses. The
mechanical rejection of such evidence on
sole ground that it's partisan would
inveriably lead to failure of justice. No hard
and fast rule can be laid down as to how
much evidence should be appreciated.
Judicial approach has to be cautious in
dealing with such evidence; but the plea
470 INDIAN LAW REPORTS ALLAHABAD SERIES
that such evidence should be rejected
because it's partisan cannot be accepted as
correct.

36. It is common knowledge that
village (mohalla) life is faction ridden and
involvement of one or the other in the
incidents is not unusual. One has also to be
cautious about the fact that wholly
independent witnesses are seldom available
or are otherwise not inclined to comeforth.
Lest they may invite trouble for themselves
for future. Therefore, relationship of eyewitnesses inter se, cannot be a ground to
discard their testimony. There is no reason
to suppose the false implication of the
appellants at the instance of the eyewitnesses. It would also be illogical to
think that witnesses would screen the real
culprits and substitute the appellants for
them.

37. This Court has also made such
observations in Para No.14 of Rameshwar
and others vs. State 2003 (46) ACC 581.

38. In the instant case, P.W.1 is
brother of deceased and P.W.2 is also
relative of deceased and P.W.2 has
disclosed in his cross-examination that
deceased Veerpal was his uncle in relation.
Being relative is not sufficient to discard
their testimony. They are natural witnesses.
They were present at the time of incident
even on the terrace where all of them were
talking in the village (mohalla) and also
they went to the place where incident took
place between the deceased and the
accused-appellants.
They
have
also
identified the accused persons in the light
of electric bulb in the night and also they
are of the same town. So there is no any
confusion in identification. Being relative,
it can not be said that they would falsely
implicated the appellants in the case, while
leaving the real culprits free. There is no
enmity between appellants and witnesses,
therefore, no reason to implicate them
falsely. In this way, these witnesses are
wholly reliable & credible. Their testimony
cannot be discarded only on the ground that
they are relatives of the deceased. In this
regard, the argument placed by learned
counsel for the appellants cannot be
accepted.

39. In our opinion the evidence on
record clearly establishes the case of
prosecution against the appellants beyond
any shadow of doubt.

40. The next argument of learned
counsel for the appellants is that the
injuries caused to deceased were not
intentional but incident took place under
the influence of intoxication of parties.
Deceased himself started conversation with
the appellants who were silent and not
having any weapon. During altercation
assault was made in the course of a sudden
quarrel. There was no pre-meditation and
the appellants did not take undue advantage
and had also not acted in cruel manner. In
essence it was submitted that Section 302
IPC has no application and in this case
Fourth Exception of Section 300 IPC
applies.

41. In support of his argument he has
relied the case of Pappu Vs. State of
Madhya Pradesh Appeal (Crl.) 751 of
2006 decided on 11.07.2006 by Hon'ble
Supreme Court and Chhabinath and
others Vs. State of U.P. Criminal Appeal
No. 8238 of 2007 decided on 22.5.2019 by
this Court.

42. The Fourth Exception of Section
300 IPC covers acts done in a sudden fight.
The said exception deals with a case of
2 All. Satish Kashyap & Anr. Vs. State of U.P.
471
prosecution 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 subsequent conduct of
both parties puts them in respect of guilt
upon 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 in
such cases could 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 offender's
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 the 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 have
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 cruel or unusual
manner. The expression 'undue advantage'
as used in the provision means 'unfair
advantage'.

43. In the light of above noted legal
position, it would be expedient to examine
the evidence on record.

44. P.W.1 Harpal stated that accused
Harish and Satish came from house of one
Rampal Kashyap and started talking to
Veerpal,
Gopal
and
Lalu.
Deceased
Veerpal asked Harish that the marriage of
daughter of Rampal had to be engaged with
Satish, why he used to go and stay in the
house of Rampal. This was not good and he
would not come to the house of Rampal.
After this Harish, Satish and deceased
Veerpal went to north direction while
talking. Thereafter incident took place. On
page 19 of paper-book, this witness has
stated that deceased had drunk wine in
small
quantity
and
he
told
it
to
472 INDIAN LAW REPORTS ALLAHABAD SERIES
Investigating Officer. He has further stated
on page 20 that there was altercation
between Harish, Satish & Veerpal for 5-7
minutes. P.W.2 Gopal has stated that when
Veerpal, Lalu Kashyap and he were talking
on the terrace, Harish and Satish came out
of house of Rampal. Veerpal said to them
that the marriage of Satish had to be
engaged in the house of Rampal and before
marriage both of them stay there which was
not good. On this there was altercation
between Harish, Satish and Veerpal and all
these persons went towards north direction
while talking. He has further stated on page
23 of paper-book that he had disclosed it
before the Investigating Officer that they
had drunk wine in small quantity. On page
46 this witness had stated that Satish &
Harish did not start any talk but Veerpal
started to say that marriage was to be done
with Satish why did Harish use to stay
there. Meanwhile matter became worse.
P.W.7 Ashif Ali Khan, Investigating
Officer, has also stated that witness Gopal
told him in his statement that incident took
place under the effect of intoxication of
wine.

45. So far as the injuries caused to the
deceased resulting into his death are
concerned,
there
are
contusions
and
abrasions except injury no. 4 which is
incised wound on the skull.

46. From the testimony as deposed by
P.Ws. 1 & 2 it becomes clear that there was
no previous enmity between the deceased and
appellants. The incident took place suddenly.
Deceased Veerpal was drunken at the time of
occurrence. It was he who gave start to the
incident. Appellants did not start talking.
They were silent and having no any weapon.
Deceased himself asked appellants that the
marriage of daughter of Rampal was to be
engaged with Satish but Harish also used to
stay in the house of Rampal which was bad.
He would not let it go further. On this there
was altercation among them for 5-7 minutes
which resulted in marpeet before the house of
Kalicharan and causing bodily injuries to
Veerpal who succumbed to injuries. All this
resulted under influence of intoxication and
in the spur of moment. There was sudden
fight though no pre-meditation or pre-plan
was in the minds of appellants to cause
murder
of
deceased
Veerpal.
Neither
appellants seem to have taken undue
advantage nor acted in cruel or unusual
manner. It appears that on the spot, the matter
became so aggravated, passions ran so high
that appellants became very aggressive and it
resulted causing death of deceased. Thus, this
case would fall in the purview of exception 4
to Section 300 IPC which brings the case
under the category of culpable homicide not
amounting to murder and punishable under
Section
304
Part-I
IPC
with
life
imprisonment or imprisonment of either
description for a term which may extend to
10 years and with fine.

47. We held the appellants guilty
under Section 304 Part-I read with Section
34 IPC and would like to reduce sentence
of the appellants, to meet the ends of
justice, to ten years rigorous imprisonment
and fine of Rs. 5000/- each and in default
of payment of fine, to undergo six months
additional imprisonment.

48. In case, the appellants have
already served out the said period, they
would be released forthwith, if not wanted
in any other case.

49. These appeals are allowed to the
aforesaid extent.

50. Copy of this judgment alongwith
original
record
of
Court
below
be
2 All. Sanjay Maurya Vs. State of U.P.
473
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)02ILR A473
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 3660 of 2013

Sanjay Maurya ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Satya Dheer Singh Jadaun, Sri Sudist,
Sri Babu Lal Ram, Sri Ram Prakash Singh,
Sri Ravi Prakash Singh Kushwaha, Sri Vishal
Kumar Shukla, Sri Arvind Singh

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

Criminal
Law-Charge
was
formed
u/s304 B, 498A and 3/4 D.P. Act-later
charge reframed u/s302 IPC even after
about 11 witnesses were recorded and
2 witnesses were left and accused was
partly examined u/s313 Cr.P.C.-Dying
declaration does not speak about any
dowry
demand-no
motive-conviction
u/s 302 IPC converted into 304 -part
II.

List of Cases cited: -

1. R. Rachaiah Vs Home Secretary, Bangalore,
2016 0 Supreme (SC) 383

2.Surendra Singh Vs St. of U.P., 2018 0 Supreme
(All) 2467
3.Karuppasamy Vs St., 2001 Cri.L.J. NOC 70
(Madras).

(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1. Heard Sri S.D. Singh Jadaun for
the sole appellant and learned A.G.A. for
the respondent.

2. This appeal challenges the
judgment dated 3.8.2013 passed by Shri
Krishan Pratap Singh, Additional Session
Judge, Court No.1, Varanasi, in Sessions
Trial No.717 of 2010, under Sections
498A/302/304B of IPC and 3⁄4 D.P. Act,
Police Station - Shivpur, District -
Varanasi, convicting and sentencing the
appellant under Section 302 IPC for life
imprisonment and fine of Rs. 25,000/-
failing in payment of fine two years
additional rigorous imprisonment.

3. Before we begin to pen down the
reasons, we are shocked that the charge
was framed on 12.1.2011 which was for
commission of offence under Section
304B/498A and also under Section 3⁄4 of
D.P. Act. This charge came to be framed
against the accused on 12.1.2011. The
charge was framed by one Sri D.K.
Srivastava,
learned
Addl.
District
&
Sessions Judge, Varanasi.

4. After his transfer, very strangely
the new incumbent Sri Krishna Pratap
Singh altered the charge and charged the
accused for commission of offence under
Section 302 I.P.C. Unfortunately, the
wordings of the charge were the same. We
would not have discussed this but the
learned Judge reframed the charge after
about evidence of 11 witnesses were
recorded and evidence of Umesh Narain