# Vijai Nandan Srivastava v. State Of U.P

- **Citation:** (2016) 8 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-24
- **Bench:** Arvind Kumar Tripathi, Mukhtar Ahmad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijai-nandan-srivastava-v-state-of-u-p-44339
- **Pages:** 12

## Text

8 All. Vijai Nandan Srivastava Vs State Of U.P.
495
(2016) 8 ILRA 495
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.08.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE MUKHTAR AHMAD, J.

Criminal Appeal No.- 333 Of 1983

Vijai Nandan Srivastava ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Sanjiv Ratan

Counsel for Respondent:
A.G. A.

Legislation referred to : Indian Penal Code, 1860 - Sections 299, 300 (Exception 4), 302, 304 Part I, 304
Part II, 324
Indian Evidence Act, 1872 - Section 27 (Admissibility of disclosure statement leading to recovery)
Code of Criminal Procedure, 1973 - Section 313.

FACTS :
The appellant-accused Vijai Nandan Srivastava was a tenant of the deceased Ashok Kumar Sharma, resident
of Mohalla Peepal Mandi, Agra. He had vacated the tenanted premises but had not paid seven months' arrears
of rent. On 14 December 1981, at about 5.30 p.m., the deceased along with P.W.4 Jai Gopal, P.W.2 Padam
Chandra Sharma (brother of deceased), and P.W.6 Kali Charan went to the house of the appellant in
Saraswati Nagar, Balkeshwar, to demand the arrears of rent and the key to the premises. When the deceased
demanded the rent and key, the appellant abused him; the deceased abused him in return, whereupon the
appellant stabbed the deceased with a knife on his left side chest and fled towards his house. The deceased
fell down in the lawn and succumbed to the injury at the spot.
The appellant was apprehended from his house by P.W.1 Head Constable Mahipal Singh, who had rushed to
the spot on hearing shouts. A blood-stained knife was recovered from a heap of piston and rings lying in the
courtyard of the appellant's house, at his instance and on his pointing out, which was proved by P.W.5
Narendra Singh (witness of recovery) and P.W.7 Inspector Baljit Singh (Investigating Officer). The postmortem conducted by P.W.9 Dr. Sudhir Chandra revealed a single ante-mortem incised wound 2.5 cm × 1 cm
penetrating the chest cavity below the left nipple, with the pericardium punctured and filled with clotted
blood, and the vessels of the right atrium and upper right ventricle cut - death being due to shock and
haemorrhage. The chemical examiner's report confirmed human blood on the knife and clothing.
The defence version, set up under Section 313 Cr.P.C. and supported by D.W.1 Smt. Pranita Srivastava (wife
of the appellant), was that it was the deceased who had placed an open knife on the appellant's chest and
threatened him, whereupon the appellant twisted the deceased's wrist, and during the ensuing scuffle the
deceased sustained injury from his own knife and fell. This version was denied by all three eyewitnesses. The
trial court, relying upon the prosecution eyewitnesses, convicted the appellant under Section 302 IPC and
496 INDIAN LAW REPORTS ALLAHABAD SERIES

sentenced him to life imprisonment. The present criminal appeal was preferred against that conviction and
sentence.

Questions of Law
(i) Whether the testimony of eyewitnesses who are friends or close relatives of the deceased is liable to be
discarded solely on account of such relationship or intimacy, or whether their evidence requires only closer
scrutiny?
(ii) Whether the absence of the accused's signature or thumb impression on a disclosure statement/recovery
memo renders the statement inadmissible or the recovery unreliable under Section 27 of the Indian Evidence
Act, 1872?
(iii) Whether, in a case of a single knife blow inflicted during a sudden verbal altercation in the heat of passion
- without premeditation, without repetition of blows, and without any undue advantage being taken - the
offence falls under Exception 4 to Section 300 IPC so as to reduce the conviction from Section 302 IPC to
Section 304 Part II IPC?
(iv) What are the essential ingredients required to invoke Exception 4 to Section 300 IPC and what
distinguishes Section 304 Part I from Section 304 Part II IPC in such circumstances?

Held
(i) Evidence of interested or related witnesses: The evidence of eyewitnesses who are friends or
relatives of the deceased cannot be discarded merely on that ground. However, the court is required to
exercise greater care and caution in scrutinising their testimony. In the present case, the ocular account of
P.W.4 Jai Gopal and P.W.6 Kali Charan - whose presence on the spot was admitted by the accused himself
- coupled with the evidence of the independent witness P.W.1 Head Constable Mahipal Singh and the
recovery of the blood-stained knife at the instance of the appellant, inspired confidence and was sufficient to
establish that it was the appellant who caused the fatal knife injury to the deceased.
(ii) Signature of accused on disclosure statement/recovery memo - not mandatory: There is no
legal requirement that a disclosure statement under Section 27 of the Indian Evidence Act must bear the
signature or thumb impression of the accused to be admissible. The earlier observation to the contrary
in Jackaran Singh v. State of Punjab, 1995 Cri LJ 3992, was subject to suo motu review by the Supreme
Court, and the corrigendum published in 1998 clarified that no such proposition was laid down. The Apex
Court in State of Rajasthan v. Teja Ram, AIR 1999 SC 1776, categorically held that the Investigating Officer is
not obliged to obtain the signature of the accused on the recovery memo. The recovery of the knife in the
present case was fully proved by P.W.5 and P.W.7.
(iii) Application of Exception 4 to Section 300 IPC - ingredients: To invoke Exception 4 to Section
300 IPC, four conditions must be satisfied: (a) the act was done without premeditation; (b) it occurred in a
sudden fight; (c) it was done in the heat of passion upon a sudden quarrel; and (d) the offender did not take
undue (i.e. unfair) advantage or act in a cruel or unusual manner. The cause of the quarrel and who first
offered provocation are not relevant; the decisive factor is that the occurrence must have been sudden and
unpremeditated and the offender must have acted in a fit of anger. Where, on a sudden quarrel, a person in
the heat of the moment uses a weapon that is handy and causes a single injury - one of which proves fatal
- he is entitled to the benefit of Exception 4, provided he has not acted cruelly or taken undue advantage.
[Surinder Kumar v. Union Territory of Chandigarh, (1989) 2 SCC 217; Arumugam v. State, (2008) 15 SCC 590
- relied upon]
(iv) Section 304 Part I vs. Part II - distinction: Where both intent and knowledge to cause death are
present, the offence is one under Section 304 Part I IPC. Where there is only knowledge - without intention
to cause death or such bodily injury as is likely to cause death - the offence falls under Section 304 Part II
IPC. In the facts of the present case, the incident arose from a sudden exchange of abuses followed by an
immediate scuffle in the heat of passion. The appellant caused only a single stab wound without repetition of
blows, indicating he did not take undue advantage of being armed. The level of preparedness could not be
characterised as premeditation. There was no intention to cause death - only knowledge that the act was
8 All. Vijai Nandan Srivastava Vs State Of U.P.
497
likely to cause death - and accordingly the case falls under Exception 4 to Section 300 IPC read with Section
304 Part II IPC.

Result: Appeal partly allowed. Conviction under Section 302 IPC set aside and modified to one under Section
304 Part II IPC. Sentence of life imprisonment substituted by rigorous imprisonment for ten years and a fine
of Rs. 20,000/-, with six months' further rigorous imprisonment in default of payment of fine. Judgment and
order of the Vth Additional Sessions Judge, Agra, modified accordingly.

Cases Referred:
Surinder Kumar v. Union Territory of Chandigarh, (1989) 2 SCC 217
Arumugam v. State, (2008) 15 SCC 590
Jackaran Singh v. State of Punjab, 1995 Cri LJ 3992 (and suo motu review reported in 1998
J.V.(1) Ker pp. 1-5)
Natarajan v. Union Territory of Pondicherry, 2003 Cri LJ 2372
State of Rajasthan v. Teja Ram, AIR 1999 SC 1776.

(Delivered by Hon'ble Mukhtar Ahmad, J.)

1. This criminal appeal has been preferred against the judgment and order dated 12.1.1983
passed by Vth. Additional Sessions Judge, Agra in Sessions Trial No. 206 of 1982, convicting the
accused under Section 302 I.P.C. and sentencing him to undergo life imprisonment.

2. The prosecution case in nut shell is that an F.I.R. was got lodged by Jai Gopal (P.W.1)
on 14.12.1981 at Police Station New Agra by stating that he is originally resident of
Hanumangarhi, Hathras but presently residing in Mohalla Peepal Mandi, Police Station Chatta with
his brother in law Ram Briksha Chimniwale; that he had friendship with Ahsok Kumar s/o Hari
Shankar Sharma (deceased), resident of Peepal Mandi; that Vijai Nandan Srivastava- appellant was
a tenant of Ashok Kumar and had not given rent for about seven months; that the house was kept
locked by him though he was not residing therein and was residing in a rented house in Saraswati
Nagar, Balkeshwar; that on the day of incident i.e. on 14.12.1981 at about 5.30 p.m. he along-with
Ashok Kumar, Padam and Kali Charan went to the house of Vijai Nandan Srivastava to get the rent
and key and when they reached at the door of his house he came out. Ashok Kumar demanded the
rent and key from him but he asked "which rent and which key" and started abusing. Ashok
Kumar too abused him on which Vijai Nandan Srivastava stabbed in his left side chest by knife and
thereafter he ran away towards his house. Ashok Kumar fell down in the lawn and succumbed to
the injury sustained. On their shouting people of nearby and police personnel came there. Vijai
Nandau Srivastava was caught by the police . On this information an FIR (Ex Ka 2) bearing case
crime No.509/81 under section 302 I.P.C. was registered against accused appellant Viajy Nandan
Srivastava by PW 1 Constable Krishna Baboo Chauhan. Entry in G.D. was also made by him.
Investigation was entrusted to Inspector Baljit Singh (P.W.7). He reached on the spot, prepared site
plan Ex. Ka 9. On the pointing out of the accused-appellant recovery of knife was made from his
house and Fard Ex. Ka 2 was prepared. He also took blood stained and plain mud from the spot and
and prepared fard Ex. Ka-8. Inquest of deceased was also conducted by him. Clothes recovered
from the dead body, knife, sample of blood stained and plain mud were sent for chemical analysis
thereafter. Dead body was sent for postmortem through constable Mahipal Singh PW 3. Dr Sudhir
498 INDIAN LAW REPORTS ALLAHABAD SERIES

Chandra PW 9 conducted post mortem on the dead body of deceased. As per chemical analyst
report, on all the articles there was human blood, however, blood group could not be ascertained on
account of having been disintegrated. He also recorded the statements of the witnesses. After
concluding investigation he submitted the charge-sheet against accused appellant under section 302
I.P.C. Learned Magistrate concerned committed the case to the court of sessions, where charge
under Section 302 I.P.C. was framed against accused appellant, who pleaded not guilty and claimed
trial.

3. In order to bring home the charge of murder against appellant the prosecution has
examined nine witnesses. P.W.1 Head constable 280 Mahi Pal Singh is the witness who after being
relieved from the V.I.P. duty was going with constable Kamlesh Kumar . Hearing the shouting he
had rushed to the spot just after the incident. He had caught the accused from his house. P.W. 2
Padam Chandra Sharma is the brother of the deceased. He is examined as eye witness. P.W. 3
Constable 1324 Mahipal Singh had taken the dead body of the deceased in sealed cover to the Post
Mortem House. . P.W. 4 Jai Gopal is the first informant. He has also deposed an eye witness
account of the incident. P.W. 5 Narendra Singh is the witness of recovery of knife at the instance of
the accused-appellant. P.W. 6 Kali Charan was also produced as an eye witness of the occurrence.
P.W. 7 Baljit Singh is the Investigating Officer who had conducted the investigation and submitted
the charge-sheet. Constable Krishna Baboo Chauhan P.W. 8 is a witness who had made the G.D.
Entry and lodged F.I.R. against the accused-appellant. Dr. Sudhir Chandra P.W. 9 is a witness who
conducted post-mortem on the dead body of the deceased. He has proved the post mortem report
Ex. Ka 16.

4. After concluding the prosecution evidence statement of accused under Section 313
Cr.P.C. was recorded. He admitted that he resided in the house of deceased as tenant but vacated
the same. Though it was admitted that rent was due but he has specifically denied about putting the
lock thereon. Except Padam presence of first informant Jai Gopal and Kalicharan on the place of
occurrence was also admitted. He further stated that it was the deceased who had put open knife on
his chest and demanded rent forcibly, then he caught the hand of Ashok Kumar in which he was
having the knife and twisted it. Thereafter scuffling took place between them, in which the knife of
deceased stabbed in his own left side chest, consequently he fell on the ground and scummed to the
injuries sustained. Thereafter Jai Gopal and Kali Charan ran away from there. He denied from
making recovery of knife on his instance. It was also stated that deceased Ashok Kumar was facing
trial under Section 376 and 307 I.P.C, Kali Charan was also accused in a case under Section 307
I.P.C. and Jai Gopal was also an accused in a case under Section 307 and 324 I.P.C. As such all the
three were history- sheeter criminals. D.W.1 Parinita Srivastava, wife of the accused was examined
from the side of defence.

5. Learned Trial Judge relying on the evidence adduced on behalf of the parties and in
particular, the deposition of the eye witnesses found the appellant guilty and sentenced him to
under go rigorous imprisonment for life and story set up by the defence was dis-believed.
Aggrieved by that judgment and order of conviction and sentence, the instant appeal has been
preferred.
8 All. Vijai Nandan Srivastava Vs State Of U.P.
499
6. We have heard Mr. Mewa Lal Shukla, amicus curiae for the appellant, Mr. Mahendra
Bahadur Yadav, learned A.G.A. and gone through the record .

7. Perusal of the record indicates that it is a case where the happening of incident is more or
less admitted. It is not disputed that appellant resided in the house of deceased as a tenant. It is also
not disputed that the accommodation was vacated by the appellant but as per the prosecution
version it was locked by him while as per defence version no lock was lying thereon. There is also
no dispute that seven months rent was due against the appellant. Place of occurrence and time of
incident is also admitted. The defence has not denied the presence of the prosecution witnesses Jai
Gopal PW4 and Kali Charan PW6 on the spot at the time of occurrence while presence of Padam
PW2, brother of deceased has specifically been denied. It is also not in dispute that deceased died
on the spot by sustaining injury of knife. The main dispute is that as per prosecution version
appellant stabbed Ashok Kumar with knife on his left side chest which resulted in his death while
as per defence version, the deceased, in scuffle with appellant sustained injuries from his own knife
which proved fatal.

8. Challenge to the impugned judgment inter-alia is primarily on the following grounds-

A) That eye witnesses PW 4 Jai Gopal and P.W. 6 Kali Charan are close friends of
the deceased as such these witnesses are highly interested witnesses but conviction is based merely
on the evidence of aforesaid witnesses, which is not trust worthy and reliable, as such conviction of
appellant is liable to be set aside .

B) That P.W.2 Padam Chandra Sharma, brother of the deceased was not present on
the spot otherwise he would be the first informant of the incident. Further, he was serving as Lower
Division Clerk in Hindi Sansthan and was on duty on the date of incidence though he in his
deposition before the court has stated that he had taken half day leave on that day but no such proof
is made is made available on record. (C) That the incident has not occurred as per prosecution
version but deceased sustained injuries at his own.

(D) That no recovery of knife was made at the instance of the appellant and fact of
bearing no signatures of accused on it is sufficient to prove the same as fake.

9. Learned A.G.A. has denied these arguments by saying that prosecution witnesses are
natural and truthful and they have given the true version of the occurrence. The prosecution case is
constant with the facts disclosed in the FIR. The accused was arrested from his own house and
weapon of assault i.e. knife was recovered on his pointing out from his own house which was
having blood stains. As per chemical examination report there was human blood on it; that P.W. 2
was also present on the spot and learned Trial Court has rightly relied upon the prosecution
evidence. It is also argued that recovery of weapon was proved by P.W. 5 and P.W.67and mere on
the ground of non bearing signature of accused, the same cannot be disbelieved.
500 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Admittedly the friendship and intimacy of P.W. 1 Jai Gopal and P.W. 6 Kalicharan and
relationship of P.W.2 Padam Chandra Sharma being brother of deceased are not in dispute. But we
are of the view that the evidence of witnesses cannot be discarded merely on such ground, of
course much care and caution shall be required in scrutinizing their evidence.

11. The sequence of events and manner of occurrence are properly revealed by the
evidence of following witnesses adduced on behalf of prosecution.

12. The prosecution has examined Head Constable Mahipal Singh PW1 as an independent
witness, who in his deposition has stated that on 14.12.1981 he along-with constable Kamlesh
Kumar was coming after being relieved from V.I.P. duty. They heard shouting by people "Chakoo
Maar Diya Khoon Kar Diya" upon which they rushed towards the place of occurrence where he
saw the deceased lying dead on the ground having a lot of blood. The culprit was said to be in his
house and he caught him there from.

13. P.W.2 Padam Chandra Sharma, elder brother of the accused has stated that along-with
Ashok Kumar Sharma (deceased) Kalicharan and Jai Gopal had gone to the house of the accused in
Mohalla Saraswati Nagar to demand the arrears of rent and key of the tenamant. When Ashok
Kumar demanded the rent and key from the appellant accused but he started abusing him upon
which Ashok Kumar also abused him. Then accused stabbed by knife towards left side of the chest
of the deceased and soon thereafter rushed to his house. Ashok Kumar Sharma succumbed to the
injuries sustained.

14. PW 4 Jai Gopal, is the first informant and the eye witness of the incident . He is
permanent resident of Hathras but at the time of occurrence was living with his brother-in-law Ram
Chandra in Agra. He happened to be a friend of the deceased. This witness showing his presence on
the spot narrated that it was the accused who has committed the murder of the deceased by causing
knife blow on his chest and rushed towards his house from where he was detained by the police.
Blood stained knife was also recovered on his pointing out from the heap of piston and rings etc.
lying in the lawn of his own house. He has also proved the F.I.R. which was got lodged by him.

15. P.W.5 Narendra Singh has stated that weapon of assault i.e. knife was got recovered by
the accused on his pointing out from the heap of piston and rings etc. lying in the court yard of his
own house. He has proved the recovery memo of knife, Ex-Ka-8 prepared on the spot.

16. P.W.6 Kalicharan is also an eye witness of the occurrence. He by showing his presence
along-with Ashok Kumar and Padam Chandra Sharma at the place of occurrence has stated that
Ashok Kumar Sharma demanded rent and key from the appellant but accused-appellant denied and
abused Ashok Kumar upon which Ashok Kumar also abused him on which accused Vijai Nandau
Srivastava committed murder of Ashok Kumar by causing knife blow in the left side of chest and
after causing injury accused-appellant rushed towards his house. Ashok Kumar after running 2-3
steps fell down on the ground and succumbed to the injuries. He has also stated that when accused
caused knife blow on the deceased at that time Padam and Jai Gopal were also present. They all
8 All. Vijai Nandan Srivastava Vs State Of U.P.
501
shouted on which two police constables came on the spot. We informed them that accused was
inside his house on which he was detained by PW1 constable Mahipal Singh there from. He has
also narrated that inquest of the dead body was conducted on the spot by the police. In his cross
examination he has admitted that he was arrested in a false case lodged by Ram Kishan Topiwala in
which he was bailed out. He has denied that he was ever convicted in any case of pick-pocketing.
He further stated in his cross examination that it was wrong to allege that Ashok Kumar with a
view to kill Vijai Nandau Srivastava attacked on him.

17. P.W.7 Baljit Singh, the Investigating Officer has narrated that after lodging of F.I.R. he
arrived on the spot where inquest of dead by of Ashok was conducted on his dictation by S.I. P.P.
Karnwal and has proved the inquest report and other papers prepared at that time. He has also
stated that on interrogation by police accused had stated that knife by which he had committed
murder of Ashok Kumar Sharma was hidden in the heap of piston and rings in his house and got
recovered blood stained knife. According to him accused-appellant further stated that it was the
knife by which he had caused injury to Ashok Kumar; that the blade of the blood stained knife was
covered with cotton and thereafter it was sealed; that signature of witnesses were obtained on the
Fard. He also stated that statement of witnesses were recorded and after concluding investigation
charge-sheet was submitted. He has proved the charge-sheet.

18. P.W.9 Dr. Sudhir Chandra is the witness who has conducted autopsy on the dead body
of the deceased. He found following injury on the body of deceased:-

"Anti mortem incised wound 2.5 cm x 1 cm up to chest cavity deep 1.5 cm lat. and
below the left nipple. Pericardium was punctured and full of clotted blood. Lower part Vessels of
right Antrim and upper part of right Ventricle were cut down".

19. It was stated by him that death was caused due to shock and hemorrhage on account of
anti-mortem injuries. He has also proved post-mortem report. In his cross examination he further
stated that direction of injury was from upward to downward. It is also opined that heart of the
deceased was also punctured due to the knife injury.

20. Defence case is that it was the deceased Ashok Kumar who puts open knife on the
chest of the appellant on which appellant twisted his hand in which he was having the knife and
during scuffle deceased sustained injury by his own knife. It would be proper to mention here that a
suggestion of this effect was given to the eye witnesses PW-2, PW-4 and PW-6 that deceased
himself was having a knife and tried to assault the appellant-accused, who twisted the hand of
deceased in which it stabbed the left chest of deceased and all the witnesses denied from such
happening.

21. D.W.1 Smt. Pranita Srivastava was produced to establish the defence version. She also
admitted that they were tenant in the house of deceased Ashok Kumar but it was vacated unlocked,
however rent for 7 months was due on them. As the deceased was criminal, he wanted to extract
money in the garb of rent. She also stated that occurrence took place at about 6.00 p.m. After
502 INDIAN LAW REPORTS ALLAHABAD SERIES

hearing the abuse, she came out from her house and saw that abuses were being exchanged between
her husband and Ashok Kuamr,. That Ashok Kumar put opened knife on the chest of her husband
and threatened him that he would recover the rent on the point of knife. Her husband twisted the
wrist of Ashok Kumar in which he was having knife on which Kali Charan, Jai Gopal and two
others made an attempt to pounce over her husband, in which Ashok Kumar fell down and his own
opened knife entered into his left side chest. Thereafter she and her husband came into the room of
their house. It was also stated by her that Padam Kumar was not present on the spot.

22. Adverting to the ocular evidence of PW-4 Jai Gopal and PW-6 Kali Charan (even if the
evidence of PW2 Padam Chand Sharma is ignored) coupled with the evidence of PW1 Constable
Mahi Pal Sing and fact of recovery of weapon of assault, knife are sufficient to show that appellantaccused is the person, who caused injuries on vital part (chest) of the deceased, which proved fatal
and the defense version that deceased sustained injury by his own knife does not appear to be
believable. As per suggestion given to the eye witnesses deceased sustained injuries by his own
when his hand was twisted by the appellant-accused. There was nothing about scuffling or felling
down of deceased. First time in the statement of accused under Section 313 Cr.P.C. appellant
disclosed improved version that scuffling had taken place between appellant and deceased in which
deceased sustained injury by his own knife then fell down but as per D.W.1 deceased fell down on
open knife kept by him which entered in his left side chest. These three versions shows that defence
set up by the appellant could have not been established. It cannot be disputed that the prosecution
has to prove his case beyond any reasonable doubt. If the prosecution succeeds in proving its case
and defence has not succeeded in proving its case in that situation too the accused persons shall be
held guilty. In this case presence of the witnesses of fact P.W. 4 Jai Gopal, first informant and
P.W.6 Kalicharan is admitted. They have narrated the prosecution story and the way of causing
injury by appellant and their evidence supported with other evidence inspire confidence. The
statement of D.W.1 is not reliable as it is a changed and improved version of defence which has
been tried to be established by D.W.1.The direction of injury was found downward from upward
and doctor has suggested that such type of injury was possible to be inflicted by the knife, which
was shown in the court . Further the knife was recovered from the house of the appellant containing
blood stains at his instance .The recovery of knife and disclosure statement in which appellant
admitted his guilt, have been very well proved by PW5 Narendra Singh and PW7 Baljit Singh
Investigating officer in their oral testimonies.

23. We shall now consider whether there is any merit in the argument that the Investigating
Officer must obtain the signature of the accused in the recovery memo to make it admissible. In
Jackaran Singh v. State of Punjab 1995 Cri LJ 3992 originally there was an observation by the
Apex Court to the effect that the failure to obtain the signature in the disclosure statement affects
the reliability of the same. The said case was decided on April 20, 1995. The Apex Court
subsequently held that the observation contained to that effect in that decision was to be reviewed.
Therefore, the registry was directed to post the case before the same Bench for suo motu review. It
was heard on 25-4-1996. The Supreme Court issued a corrigendum, which is reported in Jackaran
Singh v. The State of Punjab (1998 J. V. (1) (Ker) pp 1 to 5). It reads as follows :--
8 All. Vijai Nandan Srivastava Vs State Of U.P.
503
Page

Instead of

Read
Page 6
 does not bear the signatures or thumb
 was made long time after the
Line 8 impression of the appellant. Even, appellant was taken into custody
to 17 the recovery memo of the revolver and the by the investigating agency and
 cartridges, Ex. P-9/A, which is also it is doubtful whether the same
 attested by Yash Pal and
 was voluntarily made by
 Sukhdev Singh, ASI does not bear either appellant
 the signatures or the thumb impression
 of the accused. The absence of the
 signatures or the thumb impression
 of an of an accused on the disclosure
 of the Evidence Act detracts materially
 from the authenticity and the reliability
 of the disclosure statement.

24. So, the legal effect is that there is no dictum laid down in Jackaran Singh's case (supra)
to the effect that the statement made by an accused to be admissible under Section 27 must contain
his signature or thumb impression. These aspects were elaborately considered in Natarajan v.
Union Territory of Pondicherry 2003 Cri LJ 2372. Further, in State of Rajasthan v. Teja Ram
AIR 1999 SC 1776 the Apex Court held that the Investigating Officer is not obliged to obtain the
signature of an accused. Since the Apex Court had suo motu reviewed the observations contained
in Jackaran Singh's case (supra), that decision is not an authority to hold that to accept a statement
under Section 27, it must contain the signature or thumb impression of the accused. It only makes
that part of such statement relevant and admissible in evidence as would fall within the ambit of
that section. Further knife and clothes of deceased were sent for chemical analysis where from it is
reported that the blood on all these articles was human blood. As such the submission advanced by
learned counsel for appellant has no substance

25. In our view learned Trial Judge after thread bare analysis of the evidence of both sides
and also taking into account the entire material brought on record arrived at a correct conclusion
that it was the appellant-accused who stabbed the deceased resulting his death. The prosecution had
succeeded in establishing its case beyond all reasonable doubt against the accused-appellant. We
have no reason to differ from the finding recorded by learned Additional Session Judge as such we
also endorse the same view.

26. Learned counsel for appellant has lastly contended that the natter in hand does not fall
within section 302 I.P.C. and considering single injury and all round facts, at the most it was a case
under section 324 I.P.C. But learned counsel for the appellant has failed to demonstrate as to how
this case shall come within the ambit of section 324 I.P.C. Hence we found no force in his
arguments.

27. The question however still remains as to the nature of the offence committed by the
accused and whether it falls under Exception 4 of Section 300, IPC.
504 INDIAN LAW REPORTS ALLAHABAD SERIES

In the case of Surinder Kumar vs Union territory of Chandigarh (1989)2 SCC 217, the
Apex Court has held as under:-

"7. To invoke this Exception four requirements must be satisfied, namely, (i) it was
a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and
(iv)The assailant had not taken any undue advantage or acted in a cruel manner. The cause of the
quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The
number of wounds caused during the occurrence is not a decisive factor but what is important is
that the occurrence must have been sudden and unpremeditated and the offender must have acted
in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon
which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of
this Exception provided he has not acted cruelly."

(emphasis supplied)

28. Further in the case of Arumugam v. State,(2008) 15 SCC 590 at page 595 in support
of the proposition of law that under what circumstances Exception 4 to Section 300, IPC can be
invoked if death is caused, it has been explained as under:-

"18. 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 Penal Code, 1860.
It takes two to make a fight. Heat of passion requires that there must be no time for the passions to
cool down and in this case, the parties had worked themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat between two and more persons whether with or
without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily
depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to
show that there was a sudden quarrel and there was no premeditation. It must further be shown
that the offender has not taken undue advantage or acted in cruel or unusual manner. The
expression ''undue advantage' as used in the provision means ''unfair advantage'."

29. Thus, if there is intent and knowledge then the same would be a case of Section 304
Part I and if it is only a case of knowledge and not intention to cause murder and bodily injury then
the same would fall under Section 304 Part II. We are inclined to accept the view that in the facts
and circumstances of the present case, it cannot be said that the appellant/accused had any intention
of causing the death of the deceased when he committed the act in question. The incident took
place out of sudden fight and scuffling, hence the accused is entitled to the benefit of Section 300
Exception 4 of IPC.
8 All. Vijai Nandan Srivastava Vs State Of U.P.
505
30. In this matter it is a fact that there was exchange of abuses and just there after sudden
scuffling took place between appellant and deceased in heat of passion. Level of preparedness
namely being armed with knife was not such that it could be called a premeditation attack, coupled
with this fact also that appellant caused a single stab injury. Absence of any repetition of blow
clearly reveals that the appellant did not take any undue advantage of his having been armed with
knife or having acted in any cruel or unusual manner. Thus, in entirety, considering the factual
scenario of the case on hand, the evidence on record and in the background of legal principles laid
down by Apex Court in the cases referred to above, we are inclined to hold that the case of
appellant comes under Exception 4 to section 300 IPC. and as such, the appropriate conviction of
the appellant would be under Section 304 Part II, IPC instead of Section 302 IPC. Consequently the
conviction of appellant is modified from 302 IPC into one under section 304 (II) IPC, sentencing
him to undergo rigorous imprisonment for 10 years with fine of (Rs. 20,000/-) rupees twenty
thousand. In case of default of fine, he shall further undergo six months rigorous imprisonment.

31. The judgment and order impugned is modified up to the extent indicated above.

32. Accordingly the appeal is hereby partly allowed.
------------
506 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 506
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.08.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1317 Of 2008
&
Criminal Appeal No.- 1268 Of 2008

Santosh ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for Appellant:
Dilip Kumar, Bakhteyar Yusuf, Rajiv Gupta, S.V.Singh, Ashwini Kumar Awasthi, Anoop Trivedi, Ashok Kumar
Srivastava, D.S. Chauhan, Kuldeep Saxena, Manish Tiwary, Pankaj Kr. Shukla, Pankaj Sharma, Pawan
Bhardwaj, Pramod Bhardwaj, Rajeev Goswami, S.V.Goswami

Counsel for Respondent:
Govt. Advocate.

Legislation referred to Indian Penal Code, 1860 - Ss. 34, 302; Code of Criminal Procedure, 1973 - S. 313.

CHARGE AND SENTENCE IMPOSED BY TRIAL COURT :
Each of the three accused-appellants - Ali Ahmad, Zameel and Abdul Sattar - was convicted under Section
302 read with Section 34 of the Indian Penal Code by the Additional Sessions Judge, Court No. 2, Etawah in
S.T. No. 20 of 2000, arising out of Case Crime No. 337 of 1999, P.S. Kotwali, District Etawah, and sentenced
to life imprisonment with a fine of Rs. 5,000/- each, with a default stipulation of one year additional rigorous
imprisonment in case of non-payment of fine.

FACTS :
The prosecution case originated from a written First Information Report (Ext. Ka. 1) lodged by Mohd. Arif
(P.W. 1), son of the deceased, at P.S. Kotwali, District Etawah on 24.06.1999. The FIR was registered at 9.35
A.M. as Case Crime No. 337 of 1999 under Section 302 IPC. The motive disclosed in the FIR was a dispute
over construction of shops in a graveyard situated near an overhead water tank on the bye-pass road at
Etawah. Appellant Ali Ahmad had been constructing shops in this graveyard, assisted by the other two
appellants Zameel and Abdul Sattar. The City Magistrate, Etawah, issued a stay order on the construction. The
appellants suspected that the stay order was procured at the instance of the deceased Mohd. Israel (first
informant's father), who allegedly intrigued with Bashiruddin, the then Mutawalli (manager) of the graveyard.
On 23.06.1999 at 10.30 A.M., the appellants came to the saw mill of the deceased and warned him that he
had deprived them of their livelihood by getting the construction stopped and he would have to face
consequences.
On 24.06.1999 at approximately 8.30 A.M., the deceased Mohd. Israel was proceeding to his saw mill from his
residence on a scooter. He was being followed at some distance by his brother Mohd. Afzaal (P.W. 3, the star
eye-witness) and the latter's friend Chand on a motorcycle. When the deceased reached in front of Nafees