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

- **Citation:** (2021) 2 ILRA 421
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-01-20
- **Case number:** Criminal Appeal No. 1237 of 2013
- **Bench:** Dr. Kaushal Jayendra Thaker, Gautam Chowdhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sharafat-anr-in-jail-v-state-of-u-p-46813
- **Pages:** 6

## Headnote

Lawr-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Sections 302/34 & Arms
Act,1959-Section
4/25-challenge
toconviction-deceased wanted to elope with
a person other than her husband- there
was a heated discussion and during the
quarrel one of the accused had tried to see
that the deceased remaining in the four
corners of the home or go back to her
matrimonial home as she wanted to elope
with a person though she was a married
lady
having
four
children-witnesses
turned hostile being a family members-
accused brothers had no intention of
doing away of their sister but in heat of
the moment the incident has occurred-It
is homicidal death but not murder-
accused guilty for Section 304 of I.P.C.
read with Section 34 but not with 302
read
with
Section
34
I.P.C.
-The
punishment is reduced to seven-year
incarceration. (Para 1 to 22)

The Appeal is partly allowed. (E-5)

List of Cases cited: -

## Text

2 All. Sharafat & Anr. Vs. State of U.P.
421
sentencing the appellant no.2 Bharat
Sharan Singh, is affirmed.

83. The appellant no.2 Bharat Sharan
Singh is on bail. His bail bonds are
cancelled. He is directed to surrender
before the concerned Court forthwith to
serve out the aforesaid sentence.

84. Further, in the light of the
aforesaid
discussion,
the
impugned
judgment and order, passed by trial Court,
so far it relates to the conviction and
sentence of appellant no.1 Smt. Phulau @
Phoolwati, is set aside and appeal filed by
her is allowed. She is acquitted from the
charges levelled against her. She is on bail.
Her bail bonds are cancelled.

85. The appeal is partly allowed and
the impugned judgment and order is
modified to the extent as above.

86. Keeping in view the provision of
Section 437-A of the Code, appellant no.1
Smt. Phulau @ Phoolwati is hereby
directed forthwith to furnish a personal
bond of a sum of Rs.20,000/- each and two
reliable sureties each of the like amount
before the trial Court, which shall be
effective for a period of six months, along
with an undertaking that in the event of
filing of Special Leave Petition against this
judgment or for grant of leave, she, on
receipt of notice thereof, shall appear
before Hon'ble Supreme Court.

87. A copy of this judgment along
with lower court record be sent to trial
Court by FAX for immediate compliance.
----------
(2021)02ILR A421
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.01.2021
BEFORE

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

Criminal Appeal No. 1237 of 2013

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

Counsel for the Appellants:
Sri Faraz Kazmi, Sri Noor Mohammad, Ritu
Dhaka

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

A.
Criminal
Lawr-Code
of
Criminal
Procedure, 1973-Section 374(2) & Indian
Penal Code, 1860-Sections 302/34 & Arms
Act,1959-Section
4/25-challenge
toconviction-deceased wanted to elope with
a person other than her husband- there
was a heated discussion and during the
quarrel one of the accused had tried to see
that the deceased remaining in the four
corners of the home or go back to her
matrimonial home as she wanted to elope
with a person though she was a married
lady
having
four
children-witnesses
turned hostile being a family members-
accused brothers had no intention of
doing away of their sister but in heat of
the moment the incident has occurred-It
is homicidal death but not murder-
accused guilty for Section 304 of I.P.C.
read with Section 34 but not with 302
read
with
Section
34
I.P.C.
-The
punishment is reduced to seven-year
incarceration. (Para 1 to 22)

The Appeal is partly allowed. (E-5)

List of Cases cited: -

1. Suresh @ Kala Vs St. NCT of Delhi, CRLA
No.1284 of 2019

2. Nandlal Vs St. of Mah. (2019) 5 SCC 224
422 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Surain Singh Vs St. of Punj. (2017) 5 SCC 796

4. Deepak Vs St. of U.P. (2018) 8 SCC 228

5. Budhi Singh Vs St. of H.P. (2012) 13 SCC 663

6. Atul Thakur Vs St. of H.P. & ors. (2018) 2 SCC
496
(Delivered by Hon'ble Dr. Kaushal
Jayendra Thaker, J.
& Hon'ble Gautam Chowdhary, J.)

1. Heard Shri Noor Mohammad,
learned counsel for the appellants and
learned AGA for the State.

2. This appeal has arisen from the
judgement and order dated 22.02.2013
passed by learned Additional Sessions
Judge, Saharanpur in S.T. No.2 of 2012,
State of U.P. v. Sharafat and another
(Crime No.308/11) under Section 304
I.P.C., Police Station Mandi, District
Saharanpur and S.T. No.1 of 2012, State
v. Sharafat (Crime No.309 of 2011) under
Section 25/4 Arms Act, Police Station
Mandi, District Saharanpur. The learned
Sessions
Judge
convicted
both
the
accused for life imprisonment under
Section 302 read with section 34 of
Indian
Penal
Code
with
fine
of
Rs.10,000/- and six months rigorous
imprisonment under Section 25/4 of the
Arms Act.

3. The factual scenario as it unfurls
from the record and the F.I.R are that the
accused in unison caused death of the
deceased on 26.7.2011 at 3.45 p.m. when
Bano and Khursheed had lodged the
F.I.R. convening to the Police that her
sister Riyashat who was wife of one
Sharafat son of Saif Ali residing in Siraj
Colony,
Police
Station
Mandi
was
married before 12 years with Sharafat.

4. It is submitted by Shri Noor
Mohammad that the prosecution started
against both the accused who are brothers
of the deceased for commission of offence
under Section 304 of Indian Penal Code
and the charge sheet was laid against them
for commission of offence under Section
304 read with section 34 of Indian Penal
code. The accused were committed to the
court of session as the case was triable
exclusively by the court of sessions.

5. It is admitted position of fact that
both the accused are in jail since 26.7.2011
and might have been in jail even during the
period of investigation before they were
enlarged on bail.

6. The deceased girl had eloped with
one another person. Sharafat-appellant is
the brother and other is the husband.
Brother is the accused appellant before us.
Brother was trying to explain to deceased,
Rasheed not to elope, she had a loving
husband but she was bent on doing so in hit
of the moment both the brothers caused
death of their sister.

7. The prosecution examined several
witnesses so as to bring home the charge
framed against the accused as enumerated:

1.
Deposition
of
Bano
14.3.12 PW1
2.
Deposition
of
Khursheed
14.3.12 PW2
3.
Deposition
of
Gulista
19.3.12 PW3
4.
Deposition
of
Naseem
20.4.12 PW4
5.
Deposition
of
Dr.
Manoj
Kumar
30.4.12 PW5
2 All. Sharafat & Anr. Vs. State of U.P.
423
Chaturvedi
6.
Deposition
of
Veer Singh
1.6.12
PW6
7.
Deposition
of
Dal Chand
5.6.12
PW7
8.
Deposition
of
Subhash Chand
6.6.12
PW8

8. In support of ocular version
following documents were filed:

1
First
Information
Report
26.7.11
&
26.7.11
Ex.Ka.17
&
Ex.
Ka.21
2
Written Report 26.7.11 Ex.Ka.1
3
Recovery
Memo of blood
stained,
knife,
plain earth and
cloth
26.7.11 Ex. Ka.3,
8 and 12
4
Postmortem
Report
27.7.11 Ex. Ka.4
5
Site Plan with
Index
26.7.11
and
28.7.11
Ex.Ka.9,
13 and 19

9. Learned counsel for the appellant
has contended that if this Court feels that
the case is made out against the accused
and they are not to be accorded benefit of
doubt,
he
presses
into
service
the
provisions of Section 304 of I.P.C.
According to learned counsel, the learned
Judge could not have framed fresh charge
after some of the witnesses had turned
hostile. According to the learned Advocate,
on the evidence of all the hostile witnesses
and Sharafat has been sentenced to six
months
rigorous
imprisonment
for
commission of the offence under Section
25/4 of the Arms Act (the said period is
already over) has convicted the accused
under Section 302 I.P.C. which could not
have been done.

10. The following judgments of the
Supreme Court are cited by the learned
counsel so as to contend that offence under
Section 302 is not made out would solely
applying in the facts of this case:

(i) Suresh @ Kala v. State NCT
of Delhi, Criminal Appeal No.1284 of
2019; decided on 27.8.2019.

(ii)
Nandlal
v.
State
of
Maharashtra, (2019) 5 SCC 224;

(iii) Surain Singh v. State of
Punjab, (2017) 5 SCC 796;

(iv) Deepak v. State of Uttar
Pradesh, (2018) 8 SCC 228;

(v) Budhi Singh v. State of
Himachal Pradesh, (2012) 13 SCC 663;

(vi) Atul Thakur v. State of
Himachal Pradesh and others, (2018) 2
SCC 496.

11. Learned counsel for the State has
taken us through the record and has
contended that the vital part of the body
was attacked by the appellant No.1 may be
the deceased was sister but he was having
knowledge and his intention was also there,
otherwise he would not have inflicted blow
on the vital part of the body by the
instrument which was recovered as his
behest.

12. We have not discussed the
evidence of each witness in detail as most
of them have turned hostile being family
members. It was a moral conviction by the
learned Session Judge, the informant Bano
who is the wife of Khursheed has also not
supported the prosecution witness who is
the sister of the deceased. The incident
occurred about eight months from the date
424 INDIAN LAW REPORTS ALLAHABAD SERIES
of she given her deposition on 14.3.2014
nothing much turns on her turning hostile
she claims herself to be a illiterate lady.

13. As far as PW-2 is concerned
who is resident of the said place and
knows the accused he has deposed that
deceased Rasheed eloped with one Firoz
son of Akbar and the brothers were
annoyed and he did not see the incidence.
PW-3, Gulista has also turned hostile and
not
supported
the
prosecution.
Unfortunately, PW-4, Naseem has also
turned hostile. The evidence of PW-5, Dr.
Manoj Kumar Chaturvedi as in his
postmortem
report
which
we
have
narrated in the beginning and we do not
wish to repeat the same.

14. The police authorities who were
thereafter examined as it is ocular version
stated that he has taken the statement of
the
witnesses
thereafter
the
313
statements are also recorded.

15. As such we are convinced that
the evidence was very scanty and oral
testimony on the record of the trial Judge
was not so on which conviction could be
returned leave apart under Section 302
I.P.C., but it appears that the learned
Judge has convicted the accused on the
basis of his own ideology and on the
basis of the hostile witnesses PW-1, PW3 and that finding of knife at the behest
of the accused.

16. This is a case of no evidence,
however, the accused are in jail since
more than ten years. The learned Judge
had relied on which could not have been
made on the basis for conviction in fact
the conviction of the accused should not
have been recorded, but as the learned
counsel has only for contending that it is
not a case under Section 302 but case for
lesser sentence we are constrained to
decide.

17. This takes us to the issue of
whether the offence would be punishable
under Section 299 or Section 304 I.P.C.

18. Considering the evidence of these
witnesses and also considering the medical
evidence including post mortem report,
there is no doubt left in our mind about the
guilt
of
the
present
appellants
and
admission on part of accused. However, the
question which falls for our consideration
is whether, on reappraisal of the peculiar
facts and circumstances of the case, the
conviction of the appellant under Section
302 of the Indian Penal Code should be
upheld or the conviction deserves to be
converted under Section 304 Part-I or PartII of the Indian Penal Code. It would be
relevant to refer Section 299 of the Indian
Penal Code, which read as under:

"299.
Culpable
homicide:
Whoever causes death by doing an act with
the intention of causing death, or with the
intention of causing such bodily injury as is
likely to cause death, or with the knowledge
that he is likely by such act to cause death,
commits the offence of culpable homicide.

19. The academic distinction between
''murder' and ''culpable homicide not
amounting to murder' has always vexed the
Courts. The confusion is caused, if Courts
losing sight of the true scope and meaning
of the terms used by the legislature in these
sections, allow themselves to be drawn into
minute abstractions. The safest way of
approach
to
the
interpretation
and
application of these provisions seems to be
to keep in focus the keywords used in the
various clauses of Section 299 and 300.
2 All. Sharafat & Anr. Vs. State of U.P.
425
The following comparative table will be
helpful in appreciating the points of
distinction between the two offences.

Section
299
Section 300
A person
commits
culpable
homicide
if the act
by which
the death
is caused
is done-
Subject to certain exceptions
culpable homicide is murder is
the act by which the death is
caused is done.

INTENTION

(a) with the
intention of
causing
death; or
(1) with the intention of
causing death; or
(b)
with
the
intention of
causing
such bodily
injury as is
likely
to
cause
death; or
(2) with the intention of
causing such bodily injury as
the offender knows to be
likely to
cause the death of the person
to whom the harm is caused;
KNOWLE
DGE
KNOWLEDGE
(c) with the
knowledge
that the act
is likely to
cause
death.
(4) with the knowledge that
the act is so immediately
dangerous
that it must in all probability
cause death or such bodily
injury as is likely to cause
death, and without any excuse
for incurring the risk of
causing death or such injury as
is mentioned above.

20. It is very clear from the F.I.R.
though unsupported by the prosecution and
other witnesses of facts that there was a
heated discussion and during the quarrel
one of the accused had tried to see that the
deceased remaining in the four corners of
the home or go back to her matrimonial
home as she wanted to elope with a person
though she was a married lady having four
children.

21. The accused are the brothers of
deceased, they are in jail for a period of more
than 10 years. It is a matter of fact as it is
transpires from the F.I.R. and as we have held
that it is homicidal death but not murder. We
hold the accused guilty for Section 304 of
I.P.C. read with Section 34 but not with 302
read with Section 34 I.P.C. The punishment
is reduced to seven years incarceration, the
fine of Rs.10,000/- is reduced but Rs.1,000/-
as the medical evidence as well as the
evidence of hostile witnesses permit us to
substitute, we are of the confirmed opinion
that the punishment of seven years with fine
reduced to Rs.1,000/- read with Section 34 if
the fine is not paid, the sentence would be
default sentence of three months.

22. While going through the record,
we are convinced that the accused
brothers had no intention of doing away
of their sister but in hit of the moment the
incident has occurred. Learned Judge
instead of writing philosophy, if he did
not think it was a case of acquittal but
could have punished under Section 304
part I or II of I.P.C. which was attracted
in the facts of this case.

23. Record and proceedings be sent
back to the trial court.
426 INDIAN LAW REPORTS ALLAHABAD SERIES

24. This court is thankful to Shri Noor
Mohmmad and learned AGA for ably
assisting this Court in getting this old
matter disposed off.
----------
(2021)02ILR A426
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.02.2021

BEFORE

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

Criminal Appeal No. 2009 of 2007
&
Criminal Appeal No. 947 of 2007

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

Counsel for the Appellants:
Sri Surya Narayan, Sri Ali Hasan, Sri
Ishtiyaq Ali

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

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal
Code,1860-Section
302/34application-rejection-interested
witness-reliability
of-close
relative
cannot
be
characterised
as
an
"interested witness"-however, must be
scrutinized carefully-if on such scrutiny,
evidence is found to be intrinsically
reliable, inherently probable and wholly
trustworthy, conviction can be based on
the "sole" testimony of such witnessClose relationship of witness with the
deceased or victim is no ground to be
reject his evidence-on the contrary,
close relative of the deceased would
normally be most reluctant to spare the
real culprit and falsely implicate an
innocent person-the trivial contradiction
of the statement can not create doubt
about the incident.(Para 48 to 51)

B. The relative of deceased disclosed
all the facts about the incident-PW-1
and PW-2 were present at the place of
occurrence-they
were
the
direct
evidence
or
eye-witness-while
statement of DW-1 is not reliable-
there was no previous enimity between
the accused and deceased and no
party-bandi-appellants murdered the
deceased with the common intention,
it has been proved beyond doubtaccused gets no benefit of defense
witness who stated that he did not see
the
occurrence
nor
the
place
of
incidence
is
his
place
of
sitting(baithak)-Hence, the trial court
rightly observed the evidence and did
no
irregularity
in
passing
the
order.(Para 52 to 58)

The appeal is rejected. (E-5)

List of Cases cited:-

1. Yogesh Singh Vs Mahaveer Singh & anr.,
(2017) 11 SCC 195

2. Ramasheesh Rai Vs Jagdeesh Singh,(2005)
10 SCC 498

3. Subodh Nath & anr. Vs St. of Tripura,(2013)
CLJ 2308

4. Vipin Kumar Mondal Vs St. of W.B. ,(2010) 12
SCC 91

5. St. of Punj. Vs Jugraj Singh & anr.,(2002)
SCC (Cri) 630

6. Amit Vs St. of U.P. (2012) 1 JCRC 703

7. Sudarshan Reddy & anr. Vs St. of A.P.(2006)
2 CAR SC 742

8. Gangadhar Behra & anr. Vs St. of Ori.,(2003)
SCC (Cri.)

9. Bhaskar Rao & anr. Vs St. of Mah.,(2018) 6
SCC 591