# State of U.P v. Mahipal Singh

- **Citation:** (2023) 9 ILRA 958
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Government Appeal No. 213 of 1984
- **Bench:** Surya Prakash Kesarwani, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-v-mahipal-singh-50813
- **Pages:** 10

## Headnote

Criminal Law -Indian Penal Code, 1860 -
Sections 302, 304 Part-II, 34 & 300
Exception 4 - Code of Criminal Procedure,
1973 - Section 313 - Appeal Against
Acquittal and Conviction - The State
appealed against the acquittal of the accused
under Section 302 IPC, while the accused
appealed against his conviction under Section
304 Part-II read with Section 34 IPC, sentenced
to five years' rigorous imprisonment, arising
from a sessions trial for the stabbing death of
the deceased on 13.08.1981. The prosecution
proved the accused's involvement through eyewitnesses (P.W.-1, P.W.-2, P.W.-3), recovery of
blood-stained clothes (Group 'O'), and postmortem evidence of a fatal thigh injury. The
accused claimed self-defense and that blood
stains were from police beating, but evidence
confirmed his presence and a single knife blow
to a non-vital part during a sudden quarrel, as
per Mahesh Balmiki and State of Rajasthan. The
court held that Exception 4 of Section 300 IPC
applied, justifying the trial court's conviction
under Section 304 Part-II due to lack of
premeditation and the non-vital nature of the
injury. Self-defense was rejected
as the
evidence showed mutual provocation. Both
appeals dismissed, conviction upheld, bail bonds
cancelled, and accused directed to surrender or
face arrest if the sentence is incomplete. (Paras
16-26)
Both appeals dismissed.
List of Cases cited:

## Text

958 INDIAN LAW REPORTS ALLAHABAD SERIES
person accused of committing an offence
under PMLA going scot free without facing
trial and without seeking pardon in PMLA
case by making a full and true disclosure of
the whole of the circumstances within his
knowledge relative to the offence and it
would defeat the ends of justice.

58. In view of the foregoing
discussion, I am of the considered view that
there is no illegality in the cognizance/
summoning order dated 08.08.2019 passed
in Complaint Case No.121/2019 in the
Court of Session Judge / Special Judge
PMLA, Lucknow, and there is no ground to
quash the proceedings of the complaint
filed against the applicant under the PMLA.
The application under Section 482 Cr.P.C.
lacks merit and the same is, accordingly,
dismissed.
---------
(2023) 9 ILRA 958
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Government Appeal No. 213 of 1984
With
Criminal Appeal No. 2419 of 1983

State of U.P. ...Appellant
Versus
Mahipal Singh ...Respondent

Counsel for the Appellant:
A.G.A.

Counsel for the Respondent:
Sri P.N. Misra, Sri Devendra Kumar Tiwari,
Sri R.S. Yadav, Sri Rajiv Lochan Shukla, Sri
Surendra Kumar Yadav, Sri Ray Sahab
Yadav

Criminal Law -Indian Penal Code, 1860 -
Sections 302, 304 Part-II, 34 & 300
Exception 4 - Code of Criminal Procedure,
1973 - Section 313 - Appeal Against
Acquittal and Conviction - The State
appealed against the acquittal of the accused
under Section 302 IPC, while the accused
appealed against his conviction under Section
304 Part-II read with Section 34 IPC, sentenced
to five years' rigorous imprisonment, arising
from a sessions trial for the stabbing death of
the deceased on 13.08.1981. The prosecution
proved the accused's involvement through eyewitnesses (P.W.-1, P.W.-2, P.W.-3), recovery of
blood-stained clothes (Group 'O'), and postmortem evidence of a fatal thigh injury. The
accused claimed self-defense and that blood
stains were from police beating, but evidence
confirmed his presence and a single knife blow
to a non-vital part during a sudden quarrel, as
per Mahesh Balmiki and State of Rajasthan. The
court held that Exception 4 of Section 300 IPC
applied, justifying the trial court's conviction
under Section 304 Part-II due to lack of
premeditation and the non-vital nature of the
injury. Self-defense was rejected
as the
evidence showed mutual provocation. Both
appeals dismissed, conviction upheld, bail bonds
cancelled, and accused directed to surrender or
face arrest if the sentence is incomplete. (Paras
16-26)
Both appeals dismissed.
List of Cases cited:

1. Munshi Ram & ors. Vs Delhi Administration,
AIR 1968 SC 702

2. Mahesh Balmiki @ Munna Vs St. of M.P.,
(2000) 1 SCC 319

3. Dhirajbhai Gorakhbhai Nayak Vs St.of Guj.,
(2003) 9 SCC 322

4. Pulicherla Nagarajun Vs St. of A.P., (2006) 11
SCC 444
9 All. State of U.P. Vs. Mahipal Singh
959
5. St. of Raj.Vs Leela Ram @ Leela Dhar, (2019)
13 SCC 131

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Ms. Nand Prabha Shukla, J.)

1. The Government Appeal No. 213
of 1984 has been filed praying to set aside
the acquittal of the accused/opposite party
under Section 302 IPC. The Criminal
Appeal No. 2419 of 1983 has been filed
praying to set aside the conviction of the
appellant under Section 304 Part-II read
with Section 34 IPC and to acquit the
accused/appellant. Both the appeals arise
from the judgment and order dated
10.10.1983 in Sessions Trial No. 156 of
1982 (State Vs. Mahipal) passed by the
Sessions Judge, Jhansi convicting the
accused Mahipal under Section 304, Part II
IPC, read with Section 34 IPC, and
sentencing him to undergo five years R.I.

2. These two appeals are connected
and pending in this Court from the last
about 40 years. Since, the accused/
appellant was not present, therefore, this
Court in the Government Appeal No. 213
of 1984, vide order dated 01.07.2013
directed the Chief Judicial Magistrate,
Jhansi to take recourse to all the process
permissible under law including issuing
bailable warrant against the accused
Mahipal for procuring and ensuring his
presence before this Court on 05.08.2013.
It was further observed that in case the
accused/respondent is reported to have died
then, the Chief Judicial Magistrate shall
verify the fact of death of the accusedrespondent. As per office report dated
06.09.2013, the respondent Mahipal Singh
has left the place of his residence about 20
years ago. Thereafter, several orders were
passed from time to time and office reports
were submitted. Order dated 18.04.2015
passed by this Court reads as under:

"Heard
learned
Additional
Government Advocate for the State of U.P.

In the present case, non-bailable
warrant has been issued against the
accused-respondent, Mahipal because his
whereabouts were not known. It is reported
that he had left his village about twenty
five years back by selling the same.

The compliance report of the
order dated 21.7.2014 has not been
received from Chief Judicial Magistrate,
Jhansi.

In such circumstance, we are
directing that the compliance of the orders
passed by this Court issuing non-bailable
warrant
against
the
accused
person,
Mahipal be made by Senior Superintendent
of Police, Jhansi by way of ensuring the
arrest of the accused-respondent, Mahipal.
After arresting the accused-respondent,
Mahipal, he shall be produced before this
Court on 20th July, 2015.

List on 20th July, 2015.

Let a copy of this order be
communicated to Senior Superintendent of
Police, Jhansi through Chief Judicial
Magistrate,
Jhansi
forthwith
for
compliance."

3. Thereafter, Sri Ray Sahab Yadav
and Sri Surendra Kumar Yadav have put in
appearance on behalf of the accusedrespondent, who stated on 20.07.2015 that
a criminal appeal has been preferred
against the conviction. Vide order dated
05.08.2015, this Court directed the office to
trace out the said appeal. The office traced
out the appeal filed by the accusedrespondent
against
conviction
under
Section 304 Part-II read with Section 34
IPC. Vide order dated 27.08.2015 and
960 INDIAN LAW REPORTS ALLAHABAD SERIES
21.09.2015, the Criminal Appeal No. 2419
of 1983 filed by the accused Mahipal was
directed to be connected with the present
Government Appeal No. 213 of 1984. The
accused/respondent Mahipal had filed the
Criminal Misc. Bail Application No.
434823 of 2015 and was released on bail
by order dated 29.01.2016. Thereafter,
these two appeals were listed number of
times but none appeared on behalf of the
accused.
Consequently,
non-bailable
warrant
was
issued
by
order dated
27.02.2019. An order dated 15.05.2019 was
passed directing the Superintendent of
Police, Jhansi to ensure the arrest of the
accused Mahipal Singh. It appears that
thereafter based on office reports, this
Court passed an order dated 09.09.2022, as
under:

"No one is present on behalf of
the accused respondent.

We find that on the earlier
occasions also no one was present for the
accused respondent.

As
per
office
report
dated
14.9.2021 accused respondent Mahipal
Singh has left his house about 15 years
back and residing somewhere else and for
this reason non bailable warrants could not
be executed.

Office is directed to send details
of sureties of the accused respondent
Mahipal Singh to the court below within a
week so that the proceedings under Section
446 Cr.P.C. may be initiated against the
sureties.

List after six weeks."

4. From the record, it appears that the
accused Mahipal Singh is economically
weak person.

5. Considering the facts, this Court
appointed Sri Rajeev Lochan Shukla as
Amicus Curiae to argue the appeal on
behalf of the accused/opposite party in
Government Appeal and the appellant in
the connected Criminal Appeal No. 2419
of 1983. The order dated 03.07.2023 is
reproduced below:

"1. From the order sheet of this
appeal, it appears that the accused-opposite
party/appellant of the connected Criminal
Appeal No.2419 of 1983 is economically a
very weak person. As per report of the
Chief Judicial Magistrate, Jhansi dated
01.12.2022, presently, the accused/opposite
party is residing in Brahma Nagar Colony,
Lahargird, Police Station- Sirpri Bazar,
Jhansi and he runs a "Mungfali Ka Thela"
near Chaman Ganj Chowki, Sipri Bazar
Jhansi. Twice, non-bailable warrants were
issued to the accused/opposite party. He
engaged
counsel,
however,
counsel
engaged by him is not appearing.

2. Under the circumstances, we
find it appropriate to appoint an amicus
curiae.

3. Let Shri Rajiv Lochan Shukla
(learned Panel Counsel of Allahabad High
Court Legal Services Committee) be
appointed as amicus curiae to argue this
case on behalf of the accused-opposite
party/appellant of the connected Criminal
Appeal No.2419 of 1983.

4. Let a copy of paper book and
other relevant papers be supplied to the
aforesaid amicus curiae within a week to
prepare and argue the case.

5. Amicus curiae shall be paid
fees, as per norms.

6. List in the month of August,
2023 before appropriate Bench alongwith
aforesaid connected criminal appeal."

6. Pursuant to the aforenoted
order dated 03.07.2023, Sri Rajeev Lochan
Shukla, Advocate has argued the appeal on
behalf
of
the
accused-Mahipal
9 All. State of U.P. Vs. Mahipal Singh
961
Singh/opposite
party
in
Government
Appeal and the appellant in Criminal
Appeal No. 2419 of 1983.

7. Heard Sri K.P. Pathak, learned
A.G.A. for the State and Sri Rajeev Lochan
Shukla, learned counsel for the accused
Mahipal Singh in Government Appeal No.
213 of 1984 and connected Criminal
Appeal No. 2419 of 1983.

Facts:

8. Briefly stated facts of the present
case are that on 13.08.1981, a First
Information Report No.138/1981 under
Section 302 IPC, PS- Mauranipur, District-
Jhansi was registered at about 6:30 P.M.
with respect to an incident of the even date,
which took place at about 5:30 P.M. As per
F.I.R., the accused-Mahipal Singh and
Gucchan stabbed the deceased-Indal by
knife on 13.08.1981 causing injuries in his
abdomen and thigh, which resulted in his
death. The informant is the P.W.-1, Kailash,
who is the real brother of the deceasedIndal. The accused-Mahipal Singh was
arrested on the same day and his blood
stained clothes were recovered and sent for
chemical examination. No knife could be
recovered. The Investigating Officer visited
the place of incident on the same day and
prepared a recovery memo taking samples
of
blood
found
on
the
earth
and
'Chabutara', which were also sent for
chemical
examination.
Autopsy
was
conducted on the body of the deceasedIndal on 14.08.1981. As per post mortem
report, the following ante mortem injuries
were found on the body of the deceased:

"ANTE MORTEM INJURIES:

1. Stabbed wound (punctured) 1"
x 1⁄2" x 31/2" oblique on lateral side and
back of left thigh 3⁄4" above, lateral and
backwards to left lateral condyle of femur,
edge of wound one is sharp and other is
blunt, wound is wedge shaped. Fascia,
muscle artery, vein are cut and injuries of
lateral and back of thigh. Popliteal artery
and vein are cut from behind. Direction of
wound is left to right and slightly
downwards.

2. Superficial incised wound 3⁄4" x
linear on lateral side of left abdomen,
upper part obliquely and below upwards".

9. As per post mortem report, the cause
of death is shock haemorrhage as a result of
injury sustained on the thigh. The Injury no.2
i.e. the injury on the abdomen was found to
be superficial. The Injury no.1 i.e. the injury
on the thigh resulted in cutting of muscle
artery, vein and injury of lateral and back of
thigh. Popliteal artery and veins were cut
from behind and direction of wound was left
to right and slightly downwards.

10. As per the chemical examination
report, human blood was found on pyjama,
shirt, underwear and kurta of the deceased.
The blood group 'O' was found on blood
stained clothes of the deceased-Indal i.e.,
pant, shirt, underwear and baniyan.

11. The prosecution examined six
witnesses,
namely,
eye
witness
P.W.-
1/informant (Kailash, real brother of the
deceased), eye witness P.W.-2 (Puran), eye
witness P.W.-3 (Ram Sarup), P.W.-4 (Hari
Dayal, witness of recovery memo of blood
stained clothes of accused-Mahipal Singh and
also witness of arrest of accused-Mahipal
Singh), P.W.-5 (Dr. D.B. Mangal, who
conducted autopsy on the dead body of the
deceased-Indal) and P.W.-6 (Shambhu Dayal,
S.I.-Investigating Officer).

12. From the defence side, the
accused-Mahipal gave his statement under
962 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 313 Cr.P.C. To a question, he stated
that he was caught by the police from his
house at about 7:30 P.M. and was beaten,
which resulted in blood stains on his
clothes. To another question, he stated that
the deceased-Indal was murdered by the
other
accused-Guchhan. The
accusedGuchhan absconded and he could not be
arrested. The defence also produced D.W.-1
(Dr. S.K. Khare, Private Pathologist of Shiv
Pathological
Laboratory,
Panchkuiyan
Chauraha, Jhansi), who stated in his
evidence on 24.09.1983 that he took blood
samples
of
the
accused-Mahipal
on
22.09.1983 to test his blood group and on
testing, blood group was found to be 'O'.

13. After considering the evidences,
the learned Trial Court had passed the
impugned judgement dated 10.10.1983
whereby the learned Trial Court convicted
the accused-Mahipal under Section 304
Part-II read with Section 34 IPC and
sentenced him to undergo 5 years R.I.
Aggrieved, the State has filed the above
noted Government Appeal No.213 of 1984
and the accused-Mahipal has filed the
Criminal
Appeal
No.2419
of
1983
challenging his conviction.

Submissions :

14. Shri K.P. Pathak, learned AGA for
the State submits that the prosecution has
proved the guilt of the accused-Mahipal
beyond reasonable doubt that he has murdered
the deceased-Indal and, thus, there was no
occasion for the learned Trial Court to convict
the accused-Mahipal Singh under Section 304
Part-II read with Section 34 IPC instead the
accused-Mahipal Singh deserves
to be
convicted and sentenced under Section 302
IPC. Learned AGA has drawn our attention to
the evidence of eye witnesses, recovery memo
and chemical examiners report.

15. Shri Rajeev Lochan Shukla,
learned Amicus Curiae appearing on behalf
of
the
accused-opposite
party
in
Government Appeal No.213 of 1984 and on
behalf of the accused-appellant in Criminal
Appeal No.2419 of 1983 submitted as
under:

(i) Presence of eye witnesses on
the spot is doubtful.

(ii) Witnesses are unreliable as
they
have
continuously
made
improvements in their evidences and there
are inconsistencies in their evidences.

(iii) Clothes of the accusedMahipal recovered by the Investigating
Officer containing blood stains merely
contains the blood stains of the accusedMahipal Singh, on account of beating by
the police at the time of arrest. As per
report of the pathologist, the blood group of
the accused-Mahipal Singh is 'O' and the
blood group found on the blood stained
clothes of the accused-Mahipal Singh is
also 'O', which proved that the blood stains
appeared on the clothes of the accusedMahipal Singh was in fact the blood of the
accused-Mahipal Singh, on account of
bleeding due to beating by the police. No
evidence of blood group of the deceasedIndal could be filed by the prosecution to
establish that the blood group of the
deceased-Indal was the same as was found
on the blood stained clothes of the accusedMahipal
Singh.
The
accused-Mahipal
Singh has taken a clear stand in his defence
statement under Section 313 Cr.P.C. that
the blood stains on the clothes were of his
blood due to beating by Daroga, which
could not be disproved by the prosecution.
In his defence, the accused-Mahipal Singh
has also stated under Section 313 Cr.P.C.
that the deceased-Indal was murdered only
by the accused-Guchhan. The blood group
on the clothes of the deceased were not
9 All. State of U.P. Vs. Mahipal Singh
963
categorised. Hence, the blood found on the
clothes of the accused-Mahipal Singh is not
corroborated with the blood group of the
deceased-Indal. It has not been mentioned
by the chemical examiner in his report as to
whether the blood group of the deceased
was 'O+' or 'O-' and it simply mentioned
as blood group 'O' and, thus, the blood
group of the deceased found on his clothes
could not be connected with the blood
group of the accused-Mahipal Singh. Thus,
the prosecution has completely failed to
establish beyond reasonable doubt the
involvement of the accused-Mahipal Singh
in the incident in question and the accusedMahipal Singh is entitled for benefit of
doubt.

(iv) As per First Information
Report and the evidence of P.W.-1, the
deceased-Indal has threatened the accusedMahipal Singh and in self-defence, the
accused-Mahipal gave single blow on
non-vital part of the body of the
deceased-Indal. Thus, even if it is
assumed, as per prosecution story, that
the injury on the thigh of the deceasedIndal was inflicted by the accusedMahipal Singh, still the accused-Mahipal
Singh is entitled for benefit of selfdefence, particularly, when the injury
caused on the thigh, is on non-vital part
of the body. In the case of Munshi Ram
and Others vs. Delhi Administration
reported in AIR 1968 SC 702, Hon'ble
Supreme Court has settled the law that
even if an accused does not take plea of
self-defence, it is open to the Court to
consider such a plea if the same arises
from the materials on record. Therefore,
the accused-Mahipal Singh is entitled for
the benefit of self-defence and he could
not be convicted even under Section 304
Part-II I.P.C.

Discussion and Findings :

We have carefully considered the
submissions of learned counsels for the
parties and perused the record.

16. The recovery memo dated
13.08.1981 of blood stained clothes of the
deceased-Indal has been proved by the
P.W.-6
(Investigating
Officer).
The
recovery memo dated 13.08.1981 of the
recovery of blood stained clothes of the
accused-Mahipal Singh and his arrest in the
presence of P.W.-4 has been proved by the
P.W.-4 in his evidence. He proved that there
was no bleeding from the body of the
accused-Mahipal Singh at the time of his
arrest. The P.W.-6 (Investigating Officer)
has also stated that while arresting the
accused-Mahipal, some scuffle took place.
The blood group found on the blood stained
clothes of the accused-Mahipal Singh and
the blood group found on the blood stained
clothes of the deceased-Indal are one and
the same i.e., Group 'O'. Therefore, by
evidence, the presence and involvement of
the accused-Mahipal Singh at the date, time
and place of occurrence of the incident is
proved. That apart, his presence at the date,
time and place of occurrence and his
participation in the commission of offence
has also been proved by the eye witnesses
P.W.-1, P.W.-2 and P.W.-3. Although, the
eye witness P.W.-2 retracted to some extent
in his evidence but still he maintained that
the injury was caused to the deceased-Indal
by
the
accused-Mahipal
Singh
and
Guchhan. Thus, the presence of the
accused-Mahipal Singh in the commission
of offence at the date, time and place of the
incident in question is proved.

17. The P.W.-1 has stated in his
evidence that when he was returning
alongwith his deceased-brother at about 5
P.M., near the house of Bhoopat, the
accused persons, Mahipal and Guchhan
964 INDIAN LAW REPORTS ALLAHABAD SERIES
came and when the deceased-Indal asked
them that why they are harassing the P.W.-
1, then they spoke to the deceased that you
are taking side of your brother and we will
set your mind right and suddenly they
attacked with knife upon the deceasedIndal. He also stated that the accusedMahipal Singh, at the time of incident, was
wearing pant and bushirt, which has stains
of the deceased's blood. Nothing adverse
could be brought out by the defence in
cross-examination of the P.W.-1, which
may indicate that the accused-Mahipal
Singh has not received the stains of blood
of the deceased-Indal on his clothes in the
incident in question.

18. In his evidence, the eye witness
P.W.-2 has also proved that the accusedMahipal and Guchhan have caused knife
injuries
to
the
deceased-Indal,
who
received injuries in his stomach and thigh.
In his cross-examination, the P.W.-2 stated
that he had not seen the accused-Mahipal
Singh stabbing the deceased-Indal but he
had seen the accused persons with knife
and the deceased-Indal in injured condition
and when he asked the deceased-Indal, then
he told that the accused persons, Mahipal
and Guchhan have attacked on him.

19. In his evidence, the eye witness
P.W.-3 has stated that the accused-Mahipal
had stabbed the deceased-Indal on thigh
and the accused-Guchhan gave blow by
knife on his abdomen. He also stated that
he has seen the accused persons, Mahipal
and Guchhan stabbing the deceased-Indal
by knife. He also stated in his crossexamination that the deceased-Indal has
also told that the accused persons have
stabbed him with knife.

20. Thus, the evidence of P.W.-1,
P.W.-2 and P.W.-3 when read together
leaves no manner of doubt that the accusedMahipal Singh has given one blow
(stabbing) by knife on the left thigh of the
deceased-Indal. The injury on the left thigh
being cause of his death is also proved by
the post mortem report and the evidence of
P.W.-5
(doctor,
who
conducted
the
autopsy). The P.W.-5 has also proved the
report of the chemical examiner with
respect to the clothes of the deceased-Indal
and blood stains found thereon. He stated
in his cross-examination on a suggestion
that if deceased could have been treated
immediately in a very good hospital, then it
was possible to stop the bleeding and there
could have been possibility to save the life
of the deceased-Indal.

21. The D.W.-1 (a private pathologist)
has given a blood group report of the
accused-Mahipal Singh dated 22.09.1983
(Exhibit Ka.6) and on perusal of it from the
original record, we find that it merely
mentions the blood group of the accusedMahipal Singh to be of Group 'O'. Thus,
this blood test report does not help the
accused-Mahipal Singh in any manner
inasmuch as blood group of the blood
stains found on the clothes of the deceasedIndal and the blood group of the blood
found on the clothes of the accusedMahipal are one and the same i.e., Group
'O', as per chemical examiner's report and
the report of the private pathologist (D.W.-
1).

22. So far as the conviction of the
accused-Mahipal Singh under Section 304
Part-II read with Section 34 IPC instead of
Section 302 IPC is concerned, we find that
the thigh is a non-vital part of the body. The
injury was caused by knife by the accusedMahipal Singh. It appeared from the own
evidence of P.W.-1 that it was at the heat of
the passion that upon a sudden quarrel and
9 All. State of U.P. Vs. Mahipal Singh
965
without the accused-Mahipal Singh having
taken undue advantage, gave knife blow to
the deceased-Indal on a non-vital part of
the body of the deceased-Indal.

23. Hon'ble Supreme Court in
Mahesh Balmiki @ Munna Vs. State of
M.P.(2000) 1 SCC 319 has opined that:

"9. ...... there is no principle that
in all cases of a single blow Section 302
IPC is not attracted. A single blow may, in
some cases, entail conviction under Section
302 IPC, in some cases under Section 304
IPC and in some other cases under Section
326 IPC. The question with regard to the
nature of offence has to be determined on
the facts and in the circumstances of each
case. The nature of the injury, whether it
is on the vital or non-vital part of the body,
the weapon used, the circumstances in
which the injury is caused and the manner
in which the injury is inflicted are all
relevant
factors
which
may
go
to
determine the required intention or
knowledge of the offender and the offence
committed by him."
(Emphasis supplied by us)

24. In State of Rajasthan vs. Leela
Ram @ Leela Dhar (2019) 13 SCC 131
Hon'ble Supreme Cour has discussed the
issue where the single knife blow will fall
within Section 302 or 304 Part I or 304 Part
II of IPC and held as under : -

"In
Dhirajbhai
Gorakhbhai
Nayak vs. State of Gujarat (2003) 9 SCC
322, this Court while discussing the
ingredients of Exception 4 of Section 300
IPC, held thus: "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 bring a case within Exception 4
966 INDIAN LAW REPORTS ALLAHABAD SERIES
all the ingredients mentioned 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 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 be further 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".

In Pulicherla Nagarajun vs. State
of A.P. (2006) 11 SCC 444, this Court while
deciding whether a case falls under Section
302 or 304 Part I or 304 Part II IPC, held
thus: "Therefore, the Court should proceed
to decide the pivotal question of intention,
with care and caution, as that will decide
whether the case falls under Section 302 or
304 Part I or 304 Part II. Many petty or
insignificant matters - plucking of a fruit,
straying of cattle, quarrel or children,
utterance of a rude word or even an
objectionable
glance,
may
lead
to
altercations and group clashes culminating
in deaths. Usual motives like revenge,
greed, jealousy or suspicion may be totally
absent in such cases. There may be no
intention. There may be no premeditation.
In fact, there may not even be criminality.
At the other end of the spectrum, there may
be cases of murder where the accused
attempts to avoid the penalty for murder by
attempting to put forth a case that there
was no intention to cause death. It is for
the courts to ensure that the cases of
murder punishable under Section 302, are
not converted into offences punishable
under Section 304 Part I/II, or cases of
culpable homicide not amounting to
murder, are treated as murder punishable
under Section 302. 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.
The
above
list
of
circumstances is, of course, not exhaustive
and there may be several other special
circumstances with reference to individual
cases which may throw light on the
question of intention."
(Emphasis supplied by us)

25.

Under
the
circumstances,
Exception 4 of Section 300 IPC defining
culpable homicide not amounting to murder
is attracted on the facts of the present case.
9 All. Sanjay Kumar Singh Vs. Dir. Mahila Kalyan U.P. Lko. & Ors.
967
Consequently, the conclusion of the learned
Trial Court to invoke Section 304 Part-II
I.P.C. cannot be said to be incorrect or
unjustified.

26. The submission of learned Amicus
Curiae raising the plea of self-defence is
totally misplaced inasmuch as the evidence
of P.W.-1 and P.W.-3 clearly established
that there took place a sudden action in the
heat of passion upon a sudden quarrel
inasmuch it was the deceased-Indal, who first
spoke to the accused-Mahipal that report of
harassment of his brother shall be made and he
shall set them right by breaking their bones
and it is thereafter, the scuffle took place and a
single blow of stabbing by knife was made by
the accused-Mahipal on the left thigh of the
deceased-Indal which is a non vital part of the
body. In his cross-examination, the P.W.-5
(doctor, who conducted the autopsy) has also
stated that if bleeding could have been stopped
by immediate surgical operation, then the life
of the deceased-Indal could have been saved.
This shows that Exception 4 of Section 300
IPC was invokable and the learned Trial Court
has rightly held the accused-Mahipal Singh
liable to be convicted and sentenced under
Section 304 Part-II read with Section 34 IPC.

27. For all the reasons aforestated, we
do not find any merit in the Government
Appeal No.213 of 1984 and also in
Criminal
Appeal
No.2419
of
1983.
Therefore, both the appeals are dismissed.

28. We record our appreciation for
Shri Rajiv Lochan Shukla, learned Amicus
Curiae for rendering valuable assistance to
the Court in deciding these old pending
appeals.

29. The bail bonds of the accusedMahipal Singh are hereby cancelled. The
accused-Mahipal Singh shall surrender
forthwith before the Court concerned. In
the event, he does not surrender, the Court
concerned shall take all appropriate steps
for his arrest, if the accused-Mahipal Singh
has not yet completed the sentence awarded
to him under the impugned judgement and
order. In the event, the accused-Mahipal
Singh has already completed the sentence
awarded to him under the impugned
judgement and order, then he shall not be
arrested unless wanted in any other case.

30. Let the record as well as copy of
the judgement be transmitted to the Trial
Court for information and compliance.
----------
(2023) 9 ILRA 967
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 25.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 2611 of 2003

Sanjay Kumar Singh ...Petitioner
Versus
Dir. Mahila Kalyan U.P. Lko. & Ors.
 ...Respondents

Counsel for the Petitioner:
P.K. Khare

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India, 1950 -
Article 226 - Reversion from Promoted
Post - Principles of Natural Justice -
Petitioner challenged the reversion order dated
24.04.2003, reverting him from Senior Clerk to
Junior Clerk, nearly a decade after his
promotion on 27.10.1994, without notice or
opportunity of hearing. Petitioner, appointed as
Junior Clerk in 1985 and promoted to Senior
Clerk, argued that reversion after such a long
period, without fault on his part, was illegal,
relying on P.N. Premachandran and Shekhar