1

Reserved

AFR

Court No. - 45

Case :- CRIMINAL APPEAL No. - 1212 of 1983

Appellant :- Jangaliya And Others

Respondent :- State of U.P.

Counsel for Appellant :- P.S.Raghav,Dharmendra

Singhal,S.I.Jafri,S.P.S. Raghav,Shivendra Raj Singhal

Counsel for Respondent :- D.G.A.

Hon'ble Manoj Misra,J.

Hon'ble Shamim Ahmed,J.

(Delivered by Manoj Misra, J.)

1.This appeal is against the judgment and order dated

11.05.1983 passed by Special Judge, Bulandshahr in S.T.

No.57 of 1983 whereby, the appellant no.1 (Jangaliya) has

been convicted under Section 302 IPC and the appellant

no.2 (Shiv Lal) has been convicted under Section 302 IPC

read with Section 114 IPC and both have been sentenced to

imprisonment for life.

2.The appeal of appellant no.2 (Shiv Lal) was abated

vide order dated 27.11.2021 consequent to his death. This

appeal therefore survives qua appellant no.1 (Jangaliya).

INTRODUCTORY FACTS

3.On a written report (Ex. Ka-1), dated 25.10.1982,

scribed by Sunder Swarup (PW-2), made by Lakhpat Singh

(PW-1), son of Nanua (the deceased), the first information

report (FIR) was registered at P.S. Shikarpur, District

Bulandshahr as Case Crime No.246 of 1982, at 19.00 hours,

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on 25.10.1982. The allegation in the FIR is that informant’s

chak (a consolidated piece of agricultural holding) adjoins

the chak of his uncle (Tau - father’s elder brother) Shiv Lal

(appellant no.2). Three to four months before, the informant

had installed a tube-well. The channel of its flow passed

through the chak of his uncle (Shiv Lal). On 25.10.1982,

the informant and the deceased were working in their chak

when, at about 5 pm, informant’s uncle (Shiv Lal) and his

son (Jangaliya) (the surviving appellant no.1) started

dismantling the channel which passed through their field.

When the deceased requested them not to dismantle the

channel, Shiv Lal abused him and exhorted Jangaliya to

beat informant’s father. On this exhortation, Jangaliya

administrated ‘Fawra’ (spade) blows hitting the head of the

deceased. On witnessing this, the informant, who was at the

spot, raised alarm, as a result, Gagan Singh, Kewal Singh

came running to the spot and witnessed the incident. By

alleging that informant’s father died on the spot and

Jangaliya and Shiv Lal escaped with the ‘Fawra’ (spade),

the FIR was lodged.

4.The inquest was conducted on 26.10.1982, by about

7.15 am, of which an inquest report (Ex. Ka-4) was

prepared by Investigating Officer (Mahendra Singh-PW-3).

On 26.10.1982 itself, blood stained earth and plain earth

was recovered from the spot of which collection memo (Ex.

Ka-11) was prepared. Autopsy was conducted by Dr.

Chandra Prakash (PW-4) on 26.10.1982 at about 4.30 pm.

The autopsy report (Ex. Ka-14) notices:

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External Examination

Average built body. Rigor mortis present all over. No

Sign of decomposition.

Ante-mortem injuries:-

(i) Incised wound 5½” x 4” into skull cavity deep

extending from left parietal region to left lateral neck

around left ear.

(ii) Incised wound 1” x ½” into bone deep on left

frontal head 2½” above left eyebrow.

(iii) Incised wound 2” x ½” into scalp deep on

posterior head in middle.

(iv) Incised wound ½” x ¼” into muscle deep on tip

of right index finger on ventral aspect.

Internal Examination

Skull cavity cut underneath injury no.1. All soft tissues

under injury no.1 cut through an through upto bone depth

in neck. Membranes cut under injury no.1. Left lateral

procuses of second to fourth cervical vertebrae cut under

injury no.1.

Cause of death:- Death due to shock and haemorrhage

as a result of injury no.1. The estimated time of death

about one day back.

5.After investigation, the appellants were charge sheeted,

vide charge sheet dated 28.11.1982 (Ex. Ka-13). On which,

cognizance was taken and case was committed to the court

of session. By order dated 01.02.1983, Jangaliya (the

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surviving appellant no.1) was charged for the offence

punishable under Section 302 IPC whereas Shiv Lal

(appellant no.2) was charged for the offence of instigating

Jangaliya to commit the murder of Nanua punishable under

Section 302 read with Section 114 IPC.

6.During the course of trial, the prosecution examined

five witnesses. After taking on record the prosecution

evidence and the statement of the accused under Section

313 CrPC, the trial court convicted and sentenced the

appellants, as above. Hence, this appeal.

7.Before we proceed to notice the submissions of the

learned counsel for the parties, it would be useful to notice,

in brief, the testimony of the prosecution witnesses.

PROSECUTION EVIDENCE

8.The prosecution examined five witnesses. Their

testimony, in brief, is as follows:-

9.PW-1- Lakhpat Singh (the informant). PW-1 is the son

of the deceased. He proved the incident as narrated in the

FIR noticed above. He also stated that at the time of the

incident Shiv Lal had abused the deceased and had exhorted

Jangaliya by saying “Maar Saale Ko”. PW-1 stated that on

that instigation, Jangaliya inflicted blows with Fawra

(spade). The incident was witnessed by him along with

Sunder and Gagan. PW-1 stated that on infliction of Fawra

blows his father died on spot. PW-1 stated that he, Gagan

and Sunder tried to catch the accused but they ran away

with the spade. PW-1 stated that he dictated the FIR and

after it was written and read out to him, he had put his

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thumb impression. The report was exhibited as Ex. Ka-1.

During cross examination, PW-1 stated that his grand

father (Khamani) had three sons, namely, Shiv Lal

(appellant no.2), Nanua (the deceased) and Bhagwanta. All

three have common holding. PW-1 stated that he never saw

Bhagwanta in his lifetime. Suggestion was given to PW-1

that in the year 1967 from the informant side a suit was

instituted for getting the share of Bhagwanta. In response to

the suggestion, PW-1 stated that he has no knowledge of

any such case and stated that, in all, in the joint khata,

there were 24 bighas of land; out of which, Nanua (the

deceased) had 12 bighas. PW-1 stated that tube-well was

installed 3-4 months before the incident. PW-1 stated that

before the incident he had ploughed 3 - 4 bighas of land.

PW-1 stated that on that day Jangaliya (the appellant no.1)

was working in his field. At the time of the incident, Gagan

and Sunder were also present in their adjoining fields. PW-1

stated that the incident was witnessed by him, Gagan and

Sunder but he was not aware whether any other person

witnessed the incident. He clarified that the channel of the

tube-well was not built by him but it was a government

built channel (Sarkari Nali) and in that channel, his tube-

well’s water flowed. On further cross examination, PW-1

stated that towards west of the tube-well, he had made

some constructions to derive water from the channel, these

constructions fell in the field of Shiv Lal. When these

constructions were raised, Shiv Lal and Jangaliya raised no

dispute. PW-1 also stated that on that day, before

dismantling the channel, there was no altercation or fight

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between the informant side and the accused side. PW-1

stated that the channel, which was dismantled, also

irrigated the fields of Jangaliya and Shiv Lal. PW-1 stated

that except for dismantling the channel, there was no other

reason for the incident to have occurred. In respect of his

presence at the spot, PW-1 stated that when his father (the

deceased) had objected to the dismantling of channel by

Jangaliya, PW-1 was ploughing his field with a plough

(Hal). PW-1 stated that on his alarm, Gagan and Sunder

arrived at the spot. Thereafter, they all three went to the

spot where the deceased was lying. PW-1 stated that by the

time he reached the spot, Nanua was dead. PW-1 stated

that when he left the spot to lodge report, he had asked

Gagan to be present near the body. PW-1 stated that he

brought Sunder Singh to his house and there he dictated

the report to him.

PW-1 stated that he reached the police station

between 7-8 pm where his report was lodged and after

lodging the report, he came back to the village. The I.O.

came later, by night. The body kept lying at the spot over

night and the police constables also remained near the body

that night. In respect of the light condition when the report

was lodged, PW-1 stated that at the time when the report

was dictated, it had become dark. In respect of scribing the

report, PW-1 stated that the report was scribed because he

believed that the police personnel might insist for a written

report. PW-1 stated that prior to this, he had never gone to

the police station. PW-1 admitted that agriculturists used to

purchase water from his tube-well and Gagan also used to

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purchase water from his tube-well but Sunder never

purchased water. PW-1 stated that the spot where the

deceased was killed is not the field of Sunder but is near

the field of Gagan whereas Sunder was working in the field

which he had taken on Batayi and was sowing potato. In

respect of the site plan prepared by the I.O., PW-1 stated

that the site plan was not prepared at his instance but it

must have been prepared by the I.O. after spot inspection

as he had shown the spot to the I.O. and had also shown

him the field where he was working.

In respect of existence of light at the time of the

incident, PW-1 stated that at the time when the incident

occurred, the sun had not set. In respect of the spot, he

stated that when he arrived at the spot, Nanua was lying 2-

4 paces north of the channel. He denied the suggestion that

at the time of the incident no one was present.

10.PW-2 Sunder Swarup. He is the scribe of the written

report (Ex. Ka-1). PW-2 stated that at the time of the

incident, he was in the field of Gagan. With him, Gagan

was there. At that time, he heard screams of Lakhpat (PW-

1), who was ploughing his own field. On hearing his

screams, they saw that near the tube-well Jangaliya was

assaulting Nanua with his spade and near Jangaliya his

father Shiv Lal was there. By the time they could reach the

spot, Jangaliya and Shiv Lal had escaped. They checked

whether Nanua was alive but he was found dead. PW-2

stated that Lakhpat (PW-1) dictated the report to him which

was in his handwriting.

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During cross examination, he stated that he had not

informed the I.O. that Aziz’s field was on Batayi with him.

PW-2 also stated that towards west of the field of Gagan,

there is his tube-well. PW-2 stated that he had to go

towards his tube-well near which Gagan’s field fell. When

he was going towards his tube-well, Gagan joined him as it

was evening time. He stated that, by mistake, he said that

he told Gagan to come to his house. PW-2 stated that he

had informed the I.O. that when he was going towards his

tube-well, through the field of Aziz, from a distance of 100

paces, he watched Jangaliya assaulting the deceased. PW-2

stated that the spot from where he noticed the incident

adjoins the field of Lakhpat (PW-1) and at that time

Lakhpat was ploughing his field. PW-2 again reiterated that

by the time he could reach the tube-well/spot, the accused

had escaped and he had seen them running away. PW-2

stated that by the time he had arrived at the tube-well, the

accused must have ran 100 paces. PW-2 stated that he had

written the report at the house of Lakhpat (PW-1) and by

the time he had written the report, it was not dark but 10-

15 minutes later, it had turned dark.

In paragraph 3 of his statement, during cross

examination, PW-2 stated that when he had left with

Lakhpat to lodge the report, at the spot, except Gagan,

there was no body else. He denied the suggestion that he

takes water from Lakhpat for the field which is on Batayi

with him. PW-2 stated that near that field, there is tube-

well of Kanti, which is at a distance of 200-250 paces away

from the field of Aziz. PW-2 also stated that he saw the

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I.O. next day morning and the I.O. was seen inquiring from

people around him. PW-2 stated that the I.O. had prepared

the site plan in his presence and in the presence of

Lakhpat. PW-2 stated that the I.O. had recorded his

statement. He denied the suggestion that he was not at the

spot and that on account of his relations with PW-1, he is

telling lies.

11.PW-3 - Mahendra Singh - Investigating Officer. PW-3

stated that on the date of lodging the report, he was posted

as Sub-Inspector at the police station concerned and with

him Lalta Prasad, Head Muharrir, was posted. By

recognising the signature of Lalta Prasad, he proved the

chik FIR and the GD entry of the written report, which

were exhibited as Ex. Ka-2 and 3 respectively. PW-3 stated

that, thereafter, he proceeded to the spot and found the

body of Nanua at the spot. For the safety of the body, he

deputed a constable there. PW-3 stated that by the time

they could reach the spot, it was dark therefore inquest was

deferred to next day. PW-3 stated that next day, inquest

was conducted. He proved the inquest report and the papers

prepared by him for autopsy such as photo-nash, chalan-

lash, letter to Chief Medical Officer, etc., which were

exhibited as Ex. Ka-5 to Ka-10. He proved the sealing of

the body as also lifting of blood stained and plain earth

from the spot. The recovery memos were exhibited and

recovered material were also produced and exhibited. PW-3

stated that he had recorded the statements of Lakhpat Singh

(PW-1), Gagan Singh (not examined) and Sunder Swarup

(PW-2) and had prepared the site plan at their pointing out.

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The site plan was exhibited as Ex. Ka-12. PW-3 stated that

he obtained photocopy of the autopsy report on 28.10.1982

and made a search for the accused. PW-3 stated that on

12.11.1982 he recorded the statement of Head Muharrir

Lalta Prasad who had made GD entry of the written report

and on 27.11.1982, he had recorded the statement of Shiv

Lal and on 27.11.1982 itself he had recorded the statement

of Jangaliya in jail. PW-3 stated that after completing the

investigation, he submitted charge sheet, which was marked

as Ex. Ka-13.

During cross examination, PW-3 stated that the spot

from where Lakhpat (PW-1) had witnessed the incident is

shown by him in the site plan and that during site

inspection he had noticed that the field had been recently

ploughed. PW-3 stated that the field of Aziz would be at a

distance of 150 paces from the tube-well. PW-3 stated that

Sunder (PW-2) had no field of his own. PW-3 stated that he

left for the spot after registration of the report at about

7.30 pm. PW-3 stated that he remained at the spot near the

dead body till 9.30 pm to 10 pm and, in between, he had

noticed the marks on the body and had given instructions

to the constables to protect the body. PW-3 stated that he

had not noticed any digging of the mud near the body. PW-

3 stated that near the spot there was no tube-well of the

witness Sunder Swarup (PW-2). PW-3 stated that he made

spot inspection on the next day at 9.40 am and the body

was handed over to the constable for autopsy at 7.15 hours.

He stated that papers in connection with inquest and

autopsy were prepared before 7.15 am. PW-3 stated that the

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first CD parcha was prepared on 26.10.1982, which was

sent to the C.O. office on 27.10.1982. PW-3 stated that

there is no endorsement of the C.O. office in respect of

receipt of that parcha. PW-3 stated that he had prepared

the site plan with the help of the informant and the

witnesses. He denied the suggestion that at the time of

preparing the site plan, he received no help from the

informant.

12.PW-4 - Dr. Chandra Prakash - Autopsy Surgeon. He

proved the autopsy report and the injuries mentioned

therein, which have already been noticed above. On his

statement, the autopsy report was marked as Ex. Ka-14.

PW-4 also proved the clothes, etc. of the deceased which

were marked material exhibit. He accepted the possibility of

the injuries found on the body of the deceased as a result

of Fawra (spade) blows. He also accepted the possibility of

death to have occurred at 5 pm on 25.10.1982.

During cross examination, PW-4 stated that he had

received 10 papers from the police at the time of autopsy

and those papers were received by him around 12 noon of

26.10.1982. He accepted that it may be possible that those

papers were received earlier or later. He also accepted the

possibility of injuries found on the body of the deceased as

a consequence of heavy sharp edged weapon.

13.PW-5- Natthu Singh- the constable who carried the

cadaver for autopsy. PW-5 stated that he was handed over

the body for autopsy on 26.10.1982 and till the body was

delivered for autopsy, the body was kept in secured custody

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and was not allowed to be touched by anyone.

During his cross examination, PW-5 stated that the

body was delivered to him in the morning at 7.30 am. The

mortuary was 34-35 km away and they covered the distance

on a ‘Tonga’ and reached the mortuary by 9.30 am. PW-5

stated that he delivered the papers concerning the body at

around 4 pm.

14.After the prosecution had led its evidence, the

incriminating circumstances appearing in the prosecution

evidence were put to the accused. The accused-appellant

Jangaliya pleaded that the deceased had installed a tube-

well and was drawing a channel for selling water through

the field of accused in connection with which there was

litigation. In the litigation, the accused had won. In

connection with the dispute, earlier also, altercations had

taken place. But, on the date of the incident there was no

altercation.

15.We have heard Sri Dharmendra Singhal, learned

Senior Counsel, assisted by Sri Shivendra Raj Singhal, for

the surviving appellant no.1; Sri Pankaj Saxena, learned

AGA, for the State; and have perused the record.

SUBMISSIONS ON BEHALF OF THE APPELLANT

16.The learned counsel for the appellant submitted that

the incident occurred late evening when the sun was about

to set. The incident occurred in an open field, near the

tube-well which was far away from the village abadi. None

was present to witness the incident and the prosecution

story was developed against the accused persons on ground

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of enmity, as there existed a property dispute. If Lakhpat

had been present at the spot he would have made an

attempt to save his father but since Lakhpat neither made

any attempt to save his father nor had suffered an injury in

the incident, the prosecution story does not inspire

confidence. The presence of PW-2 at the spot is not natural

as he did not have any field adjoining the spot and being

scribe of the written report, if his presence is not disclosed

in the written report, the possibility of him being present at

the spot is extremely doubtful. Further, there is no recovery

of the spade to corroborate the prosecution story. In the

alternative, learned counsel for the appellant submitted that

even if the prosecution story is accepted as correct, the

dispute was in respect of carrying water channel through

the field of accused for selling water to others which, by

itself, was an illegal act and the accused had every right to

protect their field and if in connection with exercise of that

right there had been an altercation or fight and there was

no exhortation to kill but only to beat, if in that fit of rage,

injury with the help of spade was caused, the offence would

not travel beyond the one punishable under Section 304

Part II IPC therefore, in the worst case scenario, the

appellant is not liable to be convicted under Section 302

IPC.

SUBMISSIONS ON BEHALF OF THE STATE

17.Per contra, learned AGA submitted that this is a case

where a prompt first information report has been lodged.

The distance of the police station from the spot is 3 km and

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the written report was lodged at 19.00 hours i.e. at 7 pm

in respect of an incident that occurred at 5 pm. From the

testimony of the witnesses, it has come on record that sun

had not set by the time of the incident therefore, there was

sufficient light to witness the incident. The presence of PW-

1 was quite natural as he was ploughing his own field and

his father (the deceased) was at his tube-well when the

assault took place. Absence of injuries on the body of PW-1,

or PW-1’s attempt to save his father, is not a good ground

to disbelieve his presence because by the time he could

arrive at the spot, his father had been administered blows

by the surviving appellant no.1 and the surviving appellant

no.1 along with his own father (appellant no.2) had effected

his escape. It has been submitted that the prosecution

evidence appears natural and the medical report also

corroborates the oral testimony. It has been submitted that

there is no suggestion to the prosecution witnesses that the

incident occurred at some other spot or at some other time

and there is also no suggestion whatsoever to the

prosecution witnesses that the first information report was

ante-timed. Further, there is a suggestion to PW-2 that he

takes water from the informant party to irrigate the field

taken by PW-2 on Batayee therefore, the argument that PW-

2 had no field around is not sustainable. Hence, PW-2’s

presence at the spot is also proved. It has thus been

submitted that the eye witness account coupled with

surrounding circumstances have clearly proved that the

surviving appellant no.1 administered multiple spade blows

on vital part of the body of the deceased and therefore he

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was rightly convicted for the offence punishable under

Section 302 IPC.

ANALYSIS

18.Having noticed the rival submissions and the

prosecution evidence in detail, the following features stand

out:-

(a) that, the deceased Nanua is the brother of accused

Shiv Lal (non surviving appellant no.2) and the surviving

appellant no.1 (Jangaliya) is the son of Shiv Lal which

means appellant no.1 is the nephew of the deceased,

whereas the informant is the son of the deceased and

nephew and cousin brother, respectively, of the two

accused, namely, Shiv Lal and Jangaliya; (b) that, a tube-

well was established by the deceased, the water channel of

which passed through the field of the accused in respect of

which the accused had raised objection and, according to

own statement of the accused, in the past there had been

altercations in that regard; (c) that, according to the

explanation of the surviving appellant no.1 under Section

313 CrPC, a suit was instituted by the deceased which was

decided in favour of the accused; (d) that, from paragraph 7

of the judgment of the trial court, it appears that the said

suit, which was instituted by Lakhpat (PW-1) in the revenue

court, was for partition against Shiv Lal (non surviving

appellant no.2) and it was dismissed. In fact, this suit, as

per the observations of the trial court, was not only against

non surviving appellant Shiv Lal but against Nanua (the

father of PW-1) also; (e) that, the witnesses were not in

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close proximity to the deceased at the time when the

deceased was assaulted rather, they reached the spot after

the assault had taken place and the accused were about to

escape, which means that the witnesses were not in a

position to intervene at the time of the assault; (f) that,

according to the autopsy surgeon, the injuries found on the

body of the deceased could have been a result of infliction

of blows from a spade.

19.Bearing in mind the key features noticed above, what

stands out is that there are no suggestions to the

prosecution witnesses in respect of the incident occurring at

some other time or that there were other enemies of the

deceased having a strong motive to finish him. There is

also no challenge to the spot and of the spot having fields

of the deceased and the accused around. Thus, if the

accused were in their field and the deceased and his son

were managing their own field the presence of the two

parties at the spot is quite natural. According to the

testimony of the prosecution witnesses, the incident

occurred at 5 pm on 25.10.1982 and by that time the sun

had not set and there was light. The first information report

was scribed and was lodged at a police station 3 km away

at 7 pm. There is no suggestion that the first information

report was ante-timed. Nothing has been shown to indicate

that the police was in collusion with the informant and

being in collusion with the informant, the first information

report was ante-timed. In these circumstances, the first

information report is prompt and therefore it can be taken

that there was no time for the informant to contrive the

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prosecution story.

20.In the aforesaid background when we notice the

testimony of PW-1 (the son of the deceased), we find that

according to him at the time of the incident his father had

arrived at the spot upon noticing that the water channel

was being dismantled by the accused. When the deceased

intervened and objected to dismantling of the water

channel, Shiv Lal (non surviving appellant no.2) exhorted

his son (the surviving appellant no.1) to beat the deceased

Nanua by stating “Maaro Saale Ko”. On this exhortation,

spade blows were inflicted by the surviving appellant no.1.

Noticing this, PW-1, who was ploughing his field at a short

distance, raised an alarm and ran towards the spot. By the

time he could reach, the fatal blows had been inflicted and

the accused had escaped. The presence of PW-1 at the spot

does not appear doubtful and is rather proved by the

circumstance that the investigating officer, during the course

of investigation, at the time of spot inspection, noticed that

the field had been ploughed. Thus, by keeping in mind

that the medical evidence has accepted the possibility of the

injuries sustained by the deceased as a consequence of

spade blows and had also accepted the possibility of death

to have occurred at or about the time put by the eye

witness account, in our view, it has been proved beyond

reasonable doubt that the deceased died due to infliction of

spade blows by the surviving appellant no.1 (Jangaliya). At

this stage, we may notice that there is no suggestion to the

prosecution witnesses that the deceased had other enemies

who could have been a cause of his murder. There is also

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no suggestion to the prosecution witnesses that PW-1

himself was interested in finishing off the deceased for some

reason. Thus, for all the reasons mentioned above, we do

not find a good ground to disbelieve the ocular account

rendered by PW-1. The testimony of PW-1 is clear and is

consistent throughout in respect of the time, place and the

manner in which the incident occurred, which is

corroborated by medical evidence as well as the material

collected during investigation.

21.In so far as the PW-2 is concerned, he claims to have

been there as he had the field of Aziz on ‘Batayee’ from

where he arrived at the spot with Gagan. Gagan has not

been examined as prosecution witness and from the

statement of PW-2 it appears that he arrived at the spot

when the accused had already escaped and were away from

the spot by quite a distance (100 paces). Most importantly,

even though the written report is stated to have been

scribed by PW-2 but his presence as a witness of the

incident is not shown in the first information report. In

these circumstances, it appears to us that PW-2 may have

arrived at the spot on hearing alarms raised by PW-1 and,

therefore, it would not be appropriate for us to rely on his

statement as an eye witness of the incident. Nevertheless,

the statement of PW-2 serves as a corroborative material to

prove that PW-1 had promptly taken his help to scribe the

written report to lodge the first information report in

respect of the incident. Thus, the testimony of PW-2

supports the prosecution case to prove that the incident

occurred on or about 5 pm and that the report was

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promptly lodged.

22.As we have found the testimony of PW-1 wholly

reliable and corroborated by surrounding circumstances

including the material collected during the course of

investigation, we affirm the findings returned by the trial

court that the deceased died due to infliction of spade

blows by the surviving appellant no.1 (Jangaliya).

23.Now, the question that arises for our consideration is

whether the accused appellant no.1 Jangaliya is liable to be

convicted for the offence punishable under Section 302 IPC

or under Section 304 Part I or Section 304 Part II of the

Indian Penal Code. The other question that arises for our

consideration is that if we find the appellant not liable to

be convicted under Section 302 IPC but under Section 304

Part I or Section 304 Part II, then what would be the

appropriate sentence.

24.To appropriately address the above issue, we have to

first examine as to when culpable homicide would amount

to a murder. Before that we have to examine as to when a

person commits the offence of culpable homicide. In that

regard, Section 299 IPC provides as follows:-

“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.”

25.In the instant case, there are four external injuries

20

found on the body of the deceased. Injuries no.2 and 3

though are on vital part but there appears no underlying

fracture to those injuries. Injury no.2 is bone deep and

injury no.3 is scalp deep. Injury no.4 is on non vital part,

namely, index finger and is muscle deep. The fatal injury is

injury no.1. Injury no.1 is skull cavity deep extending from

left parietal region to left lateral neck around left ear.

Underlying the injury no.1, all soft tissues are cut through

and through upto bone depth in neck. Membranes are cut,

brain cut and second and fourth cervical vertebrae cut. In

these circumstances, it can be said that at the time of

causing that injury, the inflictor of that wound had inflicted

that injury with the knowledge that he is likely by such act

would cause death. Notably, there is no case of the defence

that the injury no.1 was inflicted accidentally. Therefore, by

all means, the appellant no.1 is liable for the offence of

culpable homicide.

26.As to whether he is liable for the offence of murder,

we have to examine the provisions of Section 300 IPC to

find out as to when a culpable homicide is murder. Section

300 IPC, without exceptions, reads as follows:-

“300. Murder.—Except in the cases hereinafter

excepted, culpable homicide is murder, if the act by

which the death is caused is done with the intention

of causing death, or—

(Secondly) —If it is done 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, or—

21

(Thirdly) —If it is done with the intention of causing

bodily injury to any person and the bodily injury

intended to be inflicted is sufficient in the ordinary

course of nature to cause death, or—

(Fourthly) —If the person committing the act knows

that it is so imminently dangerous that it must, in all

probability, cause death or such bodily injury as is

likely to cause death, and commits such act without

any excuse for incurring the risk of causing death or

such injury as aforesaid.”

27.In the instant case, the argument of the learned

counsel for the appellant is that the surviving appellant no.1

is a rustic villager. At the time of the incident, he was with

his father (Shiv Lal-non surviving appellant no.2) in his own

field and was with a spade, which is a common agricultural

implement. Spade by its nature is not a weapon of assault

but can be converted into one. Admittedly, according to the

prosecution case, the deceased had set up a tube-well,

water channel of which flowed through the field of the

accused, as a consequence of which, the accused were

annoyed and were raising objection and in the past also,

there had been altercation. It is argued on behalf of the

appellant that no one has a right to draw a water channel

from another’s field and therefore if the owner protects his

interest and seeks to dismantle that water channel, his

action is in furtherance of exercise of his right to property

and that, by itself, is no offence. The intervention by the

deceased in that exercise of right had evoked a strong

reaction, leading a person to lose his self control and,

therefore, if, as a result of which, blows were inflicted in

that spur of the moment, it cannot be said that the blows

22

were inflicted with an intention of causing death. Hence, it

would not be a case of murder. It was argued that if it is

assumed, from the nature of the injuries caused, that the

injuries inflicted were such that they, in all probability,

would have caused death then the case of the appellant

would be covered by the exceptions to Section 300 of the

IPC.

28.To appropriately test the aforesaid submissions, it

would be useful to extract the exceptions to Section 300

IPC. These are extracted below:-

“Exception 1.—When culpable homicide is not

murder.—Culpable homicide is not murder if the

offender, whilst deprived of the power of self-control

by grave and sudden provocation, causes the death of

the person who gave the provocation or causes the

death of any other person by mistake or accident.

The above exception is subject to the following

provisos:

First.- That the provocation is not sought or

voluntarily provoked by the offender as an excuse for

killing or doing harm to any person.

Secondly.- That the provocation is not given by

anything done in obedience to the law, or by a public

servant in the lawful exercise of the powers of such

public servant.

Thirdly.- That the provocation is not given by

anything done in the lawful exercise of the right of

private defence.

23

Explanation.—Whether the provocation was grave and

sudden enough to prevent the offence from amounting

to murder is a question of fact.

Exception 2.—Culpable homicide is not murder if the

offender, in the exercise in good faith of the right of

private defence of person or property, exceeds the

power given to him by law and causes the death of

the person against whom he is exercising such right of

defence without premeditation, and without any

intention of doing more harm than is necessary for

the purpose of such defence.

Exception 3.—Culpable homicide is not murder if the

offender, being a public servant or aiding a public

servant acting for the advancement of public justice,

exceeds the powers given to him by law, and causes

death by doing an act which he, in good faith,

believes to be lawful and necessary for the due

discharge of his duty as such public servant and

without ill-will towards the person whose death is

caused.

Exception 4.—Culpable homicide is not murder if it is

committed without premeditation in a sudden fight in

the heat of passion upon a sudden quarrel and

without the offender having taken undue advantage or

acted in a cruel or unusual manner.

Explanation.—It is immaterial in such cases which

party offers the provocation or commits the first

assault.

Exception 5.—Culpable homicide is not murder when

the person whose death is caused, being above the

24

age of eighteen years, suffers death or takes the risk

of death with his own consent.”

29.The learned counsel for the appellant submits that the

case of the appellant would fall in any one or more of the

following Exceptions, namely, Exception-1, Exception-2 and

Exception-4.

30.Per contra, learned AGA submits that the case of the

appellant would not fall in any of the exceptions and it

would be covered by clauses secondly and thirdly of Section

300 therefore, the appellant is liable to be punished for

murder.

31.Before proceeding further, we may notice that this is a

case where there are multiple blows on the head of the

deceased. There are three incised wounds found on the

head region. No doubt, injuries no.2 and 3 were not fatal

but what is important is that the accused was targeting a

vital part, perhaps most vital part of the body. Therefore, it

can be said with certainty that the accused had the

intention of causing such bodily injury which he knew that

it is likely to cause death of the person to whom the harm

is caused, particularly, when we see it in the context of

injury no.1 which reflects that the underlying tissues,

vertebrae etc were all cut through and through. It is also

important to notice here that the deceased had died on the

spot. In these circumstances, in our considered view,

appellant’s act traveled from the genus of culpable homicide

to the species of murder. Therefore, we would now have to

ascertain whether the case of the appellant fell in any of

25

the exceptions to Section 300 IPC.

32.At the outset, we may observe that Exceptions 3 and

5 to Section 300 IPC do not apply to the facts of the case

at all, therefore, we do not propose to discuss the same.

Thus, we shall discuss the applicability of Exception 1,

Exception 2 and Exception 4.

33.Before examining the applicability of Exceptions 1 and

4, we deem it appropriate to address the applicability of

Exception 2. Exception 2 applies to a case where the

offender in the exercise in good faith of the right of private

defence of person or property, exceeds the power given to

him by law and causes the death of the person against

whom he is exercising such right of defence without

premeditation, and without any intention of doing more

harm than is necessary for the purpose of such defence.

Here there is nothing to indicate that the deceased was

armed and was doing some damage to the property of the

accused. It is not shown that the deceased inflicted any

blows to the accused. It has also not come in the

prosecution evidence that the water channel was being

installed on the day of occurrence and to protect the

property, the appellant exceeded his right of self defence.

Rather, the tube well was there since last few months. In

these circumstances, if the deceased intervened and raised

objection to dismantling of an existing water channel, it did

not trigger exercise of right of private defence of either

property or person. Hence, in our view, we rule out the

applicability of Exception 2 to Section 300 IPC.

26

34. In the instant case, according to the prosecution case,

the accused were dismantling the water channel of the

deceased. The deceased intervened. On his intervention, non

surviving appellant no.2 (Shiv Lal), elder brother of the

deceased, exhorted his son (surviving appellant) to beat the

deceased by uttering “Maar Saale Ko”. It is argued by

learned counsel for the appellant that in a recent decision

in the case of Litta Singh Vs. State of Rajasthan: (2015) 15

SCC 327 the Apex Court interpreted the utterances “Maar

Saale Ko” as not “Maar Do”, that is, it may not mean that

exhortation was with an intention that the person exhorted

should kill. It is submitted that this would indicate that

there was no intention to kill. In our view, this may be a

mitigating circumstance qua the non surviving appellant

no.2 (Shiv Lal) but would not serve as a mitigating

circumstance qua the surviving appellant no.1 (Jangaliya)

who inflicted three blows on the head including a fatal

blow vide injury no.1 which not only cut underlying tissues

through and through but also cut underlying skull, brain

and vertebrae, resulting in instantaneous death. .

35.Now, we shall examine the applicability of Exception

4. The ingredients for applicability of Exception 4 are: (i)

there must be a sudden fight; (ii) there was no pre-

meditation; (iii) the act was committed in heat of passion;

and (iv) the assailant had not taken any undue advantage or

acted in a cruel manner. If the said ingredients are present,

the cause of quarrel would not be material as to who

offered the provocation or started the fight. Although the

term fight has not been defined in IPC but the consistent

27

view is that it implies mutual assault by use of criminal

force and not mere verbal duel. In Bhagwan Munjaji

Pawade v. State of Maharashtra, (1978) 3 SCC 330 (Para 6),

it was observed that where the accused is armed and the

deceased is unarmed, Exception 2 can have no application

and Exception 4 to Section 300 would not apply if there is

sudden quarrel but no sudden fight between the deceased

and the accused. It was held that ''Fight' postulates a

bilateral transaction in which blows are exchanged.

36.In the instant case, there is no disclosure about the

sudden quarrel or altercation or exchange of blows. There is

nothing to indicate that the deceased had any weapon such

as lathi or agricultural implement in his hand which he

may have raised to be used, or have used, at the time

when he was assaulted by the surviving appellant no.1. In

fact, the explanation of the appellant under Section 313

CrPC denies occurrence of any altercation or fight on the

date of the incident. In such circumstances, in our

considered view, Exception 4 to Section 300 IPC would not

apply.

37.At this stage, we may notice two decisions, which

were cited by the learned counsel for the appellant to bring

out appellant’s case within Exception 4 to Section 300 IPC.

The first case cited by the learned counsel for the appellant

is a decision in the case of Surain Singh Vs. State of

Punjab: (2017) 5 SCC 796. The other decision cited was of

Litta Singh (Supra).

38.In Surain Singh’s case (Supra) the Apex Court

28

reiterated the law as to when Exception 4 to Section 300

IPC would apply by observing as follows:

“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 all

the ingredients mentioned in it must be found. It is to

be noted that the fight occurring in Exception 4 to

Section 300 IPC is not defined in IPC. It takes two to

make a fight. Heat of passion requires that there must

be no time for the passions to cool down and in this

case, the parties had worked themselves into a fury

on account of the verbal altercation in the beginning.

A fight is a combat between two and more persons

whether with or without weapons. It is not possible to

enunciate any general rule as to what shall be

deemed to be a sudden quarrel. It is a question of

fact and whether a quarrel is sudden or not must

necessarily depend upon the proved facts of each

case.”

39.In Surain Singh’s case (supra) the facts, which have

been noticed in the judgment of the Supreme Court, are as

follows:-

“At about 11:00 a.m., both the sides started

quarrelling and had a heated exchange of words as

Surain Singh (the appellant-accused) objected to the

presence of Bhajan Singh, who was relative of Amrik

Singh and not a party to the proceedings. Surain

29

Singh-the appellant-accused, took out his Kirpan and

gave a blow to Bhajan Singh. When the complainant

party tried to stop the appellant-accused, he gave a

Kirpan blow to Mander Singh. He also assaulted

Harbans Singh (since deceased) with Kirpan. Darshan

Singh also took out his Kirpan and started giving

blows to Santa Singh (since deceased). The injured

were taken to Guru Gobind Singh Medical Hospital

Faridkot, where Santa Singh and Harbans Singh

succumbed to their injuries.”

40.On the above set of facts, the Apex Court found

Exception 4 to Section 300 IPC applicable and convicted the

accused under Section 304 Part 2 IPC instead of Section 302

IPC by observing as under:-

“The scuffle took place in the heat of passion and all

the requirements under Section 300 Exception 4 of

the IPC have been satisfied. Therefore, the benefit of

Exception 4 under Section 300 IPC is attracted to the

fact situations and the appellant-accused is entitled to

this benefit.’

41.In the instant case, there is no evidence or even an

explanation by way of statement under section 313 CrPC

that there was a scuffle between the deceased and the

surviving appellant no.1. There is virtually nothing to show

that there was a fight between the two. Hence, in our

considered view, the benefit of Exception 4 to Section 300

IPC would not be available to the appellant in light of the

law noticed above.

42.In Litta Singh’s case (supra), the other decision which

30

has been relied upon by the learned counsel for the

appellant, the Supreme Court by considering the nature of

the injuries and the weapons used to cause those injuries,

namely, lathi, in paragraph 23, observed as follows:-

“17. Considering the nature of the injury caused to

the deceased and the weapons i.e. lathi and gandasi

(sickle) used by them, it cannot be ruled out that they

assaulted the deceased with the knowledge that the

injury may cause death of the person. Moreover, there

is no evidence from the side of the prosecution that

the accused persons pre-planned to cause death and

with that intention they were waiting for the deceased

coming from the field and then with an intention to

kill the deceased they assaulted him.”

43.In the instant case, there are three injuries caused by

one person and all the three injuries were on the head.

Those injuries are stated have been inflicted with a ‘Fawra’

and injury no.1 is not only fatal but has been inflicted with

great amount of force so much so that not only muscles

were cut through and through but membranes, skull and

the vertebrae were also cut as a consequence of which the

deceased died on the spot. Thus, even if it is assumed that

there is no premeditated intention to kill the deceased but

the injury was caused with intention of causing such bodily

injury as the offender knew to be likely to cause death of

the person to whom the harm was caused and, in any case,

that injury was sufficient, in ordinary course, to cause death

and therefore, in our view, the benefit of the decision of

Litta Singh’s case (supra) would not be available to the

31

surviving appellant no.1 (Jangaliya).

44.Although, the learned counsel for the appellant had

not specifically argued that the case of the appellant would

fall within the ambit of Exception 1 to Section 300 IPC but

to explore whether the case would come under Exception 1,

we proceed to examine the matter in that context.

45.To seek the benefit of Exception 1 to Section 300 IPC,

following conditions are to be satisfied:- (1) there must be

provocation to the accused; (2) the provocation must be

grave; (3) the provocation must also be sudden; (4) the

provocation must have deprived the accused of his power of

self-control; (5) the offence must have been committed

during loss of self-control; and (6) the person killed must

have been the person giving provocation, or any other

person by mistake or accident.

46.In K.M. Nanavati Vs. State of Maharashtra: AIR 1962

SC 605, it was held:-

“The test of "grave and sudden" provocation

under the Exception must be whether a reasonable

person belonging to the same class of society as the

accused, placed in a similar situation, would be so

provoked as to lose his self control.”

47.In the instant case, if we go through the facts as laid

out in the prosecution evidence it would appear that the

water channel regarding which there appeared a dispute

was there for quite sometime. The tube-well was installed

3-4 months before the incident. The prosecution evidence is

that the water channel was being dismantled by the accused

32

when the deceased intervened. The prosecution evidence is

silent with regard to the nature of the intervention; with

regard to an altercation having taken place consequent to

the intervention; and with regard to exchange of blows

between the accused and the deceased. The prosecution

evidence is to the effect that when the deceased noticed the

accused dismantling the water channel, he went to the spot.

There, non surviving appellant no.2 exhorted his son (the

surviving appellant no.1) to assault the deceased. On that

exhortation, the surviving appellant no.1 inflicted blows

with the help of his ‘Fawra’ (spade). The determining factor

for applicability of Exception 1 in this scenario would be

whether the intervention of the deceased caused grave and

sudden provocation to the offender that made him lose

power of self control to inflict those kind of injuries while

he had no control over his emotions. For applicability of

Exception 1 the provocation should not be sought or

voluntarily provoked by the offender as an excuse for killing

or doing harm to any person. In the instant case, the

deceased intervened only when the water channel was being

dismantled. If the water channel had been in existence from

before and there had been a flow of water through that

water channel from before and the suit for partition had

been dismissed, as would be clear from paragraph 7 of the

judgment of the trial court in respect of which no

arguments have been raised in this appeal, there was no

occasion, in our view, for the accused to be so provoked as

to lose his power of self control and inflict three injuries on

the head including one with so much force that it cut the

33

skull, damaged the brain and the vertebrae including the

muscle sheets as has been noticed by the autopsy surgeon.

Therefore, in our view, the surviving appellant no.1 is not

entitled to the benefit of Exception 1.

48.Having discussed the arguments advanced by the

learned counsel for the appellant and having noticed the

nature of the injuries caused and that the prosecution has

been able to successfully prove that those injuries were

caused by the accused appellant, keeping in mind that those

injuries were such that would fall in clause ‘Secondly’ and

‘Thirdly’ of Section 300 IPC, we are of the considered view

that the appellant would be liable to be convicted for an

offence of murder, as has been held by the trial court. We,

therefore, affirm the judgment and order of the trial court.

The appeal is, accordingly, dismissed. The surviving

appellant no.1 (Jangaliya) is reported to be on bail. His bail

bonds are cancelled. He shall be taken into custody

forthwith to serve out the sentence awarded by the trial

court.

49.Let a copy of this order be certified to the court

below along with the record for information and

compliance.

Order Date :- 31.05.2022

AKShukla/-