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AFR

Court No. 48

Reserved on: 14.10.2019

Delivered on: 05.11.2019

CRIMINAL APPEAL No. 2233 of 1987

Kaptan Singh ----Appellant

Vs

State of Uttar Pradesh ----Respondent

WITH

CRIMINAL APPEAL No. 2252 of 1987

H.N. Singh ----Appellant

Vs

State of Uttar Pradesh ----Respondent

__________________________________________________________

For Appellants : Sri Sangam Lal Kesharwani

Advocate

For Respondent/State: Sri J.K. Upadhaya learned, AGA

__________________________________________________________

Hon'ble Pritinker Diwaker, J.

Hon'ble Raj Beer Singh, J.

Per: Raj Beer Singh,J

1.Both these appeals have been preferred against the judgment and

order dated 26.08.1987 passed by IVth Additional Sessions Judge,

Kanpur Nagar in Session Trial No. 199 of 1986 (State Versus Kaptan

Singh and H.N. Singh) under Sections 302, 323/34 & 324/34 of I.P.C.,

P.S. Kalyanpur, District Kanpur Nagar, whereby accused-appellant H.N.

Singh has been convicted under Section 302 and accused-appellant

Kaptan Singh has been convicted under Section 302/34 and they have

been sentenced to life. Both the accused-appellants have further been

convicted under Section 324/34 IPC and sentenced to rigorous

imprisonment for one year. Both the sentences have been directed to run

concurrently.

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2. Both the accused-appellants H.N. Singh and Kaptan Singh as well

as the deceased Ram Niwas Rao were tenants in residential building of

(PW-2) informant-Ram Singar Pandey. On 03.05.1986 at around 8.30

P.M. informant Ram Singar Pandey (landlord) came at the said premises

and demanded electricity dues from accused-appellant Kaptan Singh.

Accused-appellant Kaptan Singh objected the same by saying that

electricity bill is exaggerated and thus he would not pay the same.

Meanwhile, another tenant accused-appellant H.N.Singh also came and

protested that landlord was demanding more electricity dues and they

would not pay the same and he even started abusing (PW-2) Ram Singar

Pandey. At the same time, another tenant Ram Niwas Rao (deceased)

came and tried to intervene, but accused-appellant Kaptan Singh gave a

knife blow at the chin of (PW-2) Ram Singar Pandey, while being

infuriated by intervention of Ram Niwas Rao, accused-appellant H.N.

Singh gave a knife blow in inguinal region of Ram Niwas Rao (deceased)

by exhorting that the deceased always used to support the landlord.

Hearing the noise, one Raj Kishore, Bachcha Lal, Jitendra Tewari and

some other tenants of the premises reached there and intervened. Ram

Niwas Rao (deceased) was taken to Hallet Hospital and was admitted

there but, on the same night, he succumbed to his injuries in the hospital.

3.(PW-2) Ram Singar Pandey reported the matter to the police by

submitting written complaint Ex. Ka-1 and on that basis, case was

registered under Sections 324/304 of I.P.C. against both the accused-

appellants on 04.05.1986 at 3.30 P.M. vide first information report Ex.

Ka-13.

4.Deceased Ram Niwas Rao, while he was in injured condition, was

medically examined on 03.05.1986 vide MLC Ex.Ka-15 and following

injuries were found on the person of deceased.

(i) Incised wound (lt.) inguinal area 1.8 cm x 8 cm x

muscle deep with fresh bleeding. Margins sharp cut

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with cut end of hair bulb seen.

(ii) He was admitted for observation and treatment as

the case of stabbed wound. According to the opinion of

the doctor, the injury was fresh and caused by some

sharp edged object.

5.After death of deceased, (PW-3) S.S.I. Shanker Singh conducted

inquest proceeding on 04.05.1986 vide inquest report Ex.Ka-2 and other

related documents were prepared and the dead body of the deceased Ram

Niwas Rao was sent for postmortem.

6.Postmortem on the dead body of the deceased was conducted on

04.05.1986 by (PW-4) Dr. P.S. Misra vide postmortem report Ex. Ka-12

and following injuries were found on the body of deceased.

(I) Stab wound 2 cm. x ½ cm. x 10 cm. on the left

inguinal region. Femoral artery was cut. Margin clean

cut and gapping present.

(ii) Stitched cut open wound present on right arm front.

As per Autopsy Surgeon, the death had been caused on

account of shock and haemorrhage as a result of injury

no.1.

7.(PW-2) Ram Singar Pandey was medically examined by (PW-6) Dr.

N.C. Yadav vide MLC Ex.Ka-16, and following injuries were found on his

body;

(i) Traumatic swelling left side scalp 1.5 cm. x 1 cm.

in red colour.

(ii) Incised wound just below left angle of mouth 1.2

cm. x .3 cm.x skin deep with fresh bleeding. M.G.

examination shows cut hair bulb

(iii) Abraded contusion left thigh lower end outer

aspect 1.5 cm. x 1 cm. with fresh oozing of blood is

there.

complained pain in chest.

8.(PW-3) S.S.I. Shanker Singh conducted investigation and after

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completion of the same, both accused-appellants were charge sheeted vide

Ex. ka-11.

9.Learned Trial court framed charge under Section 302 of I.P.C.

against accused-appellant H.N. Singh while accused-appellant Kaptan

Singh was charged under section 302/34 of I.P.C. Both the accused-

appellants were further charged under Sections 323/34 and 324/34 of

I.P.C. They pleaded not guilty and claimed trial.

10.In order to bring home guilt of accused-appellants, prosecution has

examined eight witnesses. After prosecution evidence, both the accused-

appellants were examined under Section 313 of Cr. P.C., wherein they

denied the prosecution evidence and claimed false implication, however,

no evidence was adduced in defence.

11.After hearing and analyzing the evidence on record, the accused-

appellant H.N. Singh was convicted under Section 302 of I.P.C., whereas

accused-appellant Kaptan Singh was convicted under Section 302/34 of

I.P.C. and both the accused-appellants were further convicted under

Section 324/34 of I.P.C. vide impugned judgment and order dated

26.08.1987 and were sentenced as stated in paragraph no.1 of this

judgment.

12.Being aggrieved, accused-appellant H.N. Singh has preferred

Criminal Appeal No. 2252 of 1987 and accused-appellant Kaptan Singh

has preferred Criminal Appeal No. 2233 of 1987.

13.Heard Sri Sangam Lal Kesherwani, learned Amicus on behalf of

both the accused-appellants and Sri J.K. Upadhaya, learned A.G.A. for

the State-respondents.

14.Learned Amicus Curiae for the appellants submits:-

(i)that (PW-1) Vimla Devi is an interested witness and similarly

(PW-2) Ram Singar Pandey is also not an independent

witness. No independent witness has been examined and

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thus, their testimony is not reliable.

(ii)that so far as conviction of accused-appellant Kaptan Singh

under Section 302/34 of I.P.C. is concerned, no specific role

has been assigned to him in causing death of deceased. He

has not caused any injury to the deceased. It was submitted

that the incident took place suddenly and thus, there is no

question of any pre-arranged plan between accused persons

and thus, accused-appellant Kaptan Singh can not be

convicted under section 302/34 IPC as there is nothing to

show the common intention to cause murder of deceased.

(iii)that, even if the prosecution evidence is accepted as such, no

case under Sections 302 or 302/34 of I.P.C. is made out. The

alleged incident took place suddenly without any

premeditation in the heat of passion due to dispute over

electricity bill. Accused-appellant H.N. Singh has given

single knife blow at the deceased, while accused-appellant

Kaptan Singh has not caused any injury to him. It was

submitted that, even if the prosecution evidence is accepted

as such, at the most only a case under Section 304 Part II of

I.P.C. is made out against the accused-appellant H.N. Singh.

(iv)that the alleged incident took place on 03.05.1986 and a

period of 33 years have already elapsed and thus the purpose

would be served if accused-appellants were sentenced to the

period already undergone.

15.On the other hand, supporting the impugned judgment, it has been

argued by the State counsel that there is clear and cogent evidence of

(PW-1) Vimla Devi and (PW-2) Ram Singar Pandey, which unerringly

point out the guilt of accused-appellants. As the alleged incident took

place inside the premises thus, (PW-1) Vimla Devi, who is wife of

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deceased, is natural witness, as she was residing with her husband Ram

Niwas Rao (deceased) in the same premises. Similarly, (PW-2) Ram

Singar Pandey is also a reliable and credible witness. Both these witnesses

have been subjected to cross-examine but no major contradiction or

inconsistency could emerge. However, it was fairly admitted by the State

counsel that the alleged incident took place suddenly at spur of moment.

16. We have considered the rival submissions and gone through the

entire record.

17.(PW-1) Vimla Devi, who is wife of deceased Ram Niwas Rao, has

stated that she was residing with her husband in a rented premises

belonging to (PW-2) Ram Singar Pandey. Accused-appellant Kaptan

Singh and H.N. Singh were also tenants in the same premises. On the day

of incident, at about 8.30 P.M. she was sitting at door of her house and

was talking with her mother-in-law and husband Ram Niwas

Rao (deceased). At the same time landlord (PW-2) Ram Singar Pandey

was demanding electricity dues from accused-appellant Kaptan Singh and

meanwhile, accused-appellant H.N. Singh also reached there. Accused

appellant Kaptan Singh stated that landlord (PW-2) Ram Singar Pandey is

demanding exaggerated electricity dues and both the accused-appellants

Kaptan Singh and H.N. Singh started abusing (PW-2) Ram Singar Pandey.

(PW-1) Vimla Devi further stated that her husband went there and asked

accused-appellants as to why they were abusing but accused-appellant

Kaptan Singh gave knife blow at (PW-2) Ram Singar Pandey, while

accused-appellant H.N. Singh gave knife blow at her husband Ram Niwas

Rao. Thereafter, both the accused-appellants fled away from spot. The

incident was also witnessed by her mother-in-law and some other persons

in the light of electricity. The deceased Ram Niwas Rao was taken to

hospital but on the same night at about 01.00 P.M., deceased Ram Niwas

Rao succumbed to his injuries.

18. (PW-2) Ram Singar Pandey stated that he is owner of the House

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No. 116/665 situated at Rawatpur, P.S. Kalyanpur, District Kanpur Nagar

and in that premises, accused-appellant H.N. Singh, Kaptan Singh as well

as some other persons namely, Raj Kishore, Bachcha Lal, Jitendra Tewari

and deceased Ram Niwas Rao were tenants. On the day of incident, at

about 8.00 P.M. he came at his premises and demanded electricity charges

Rs. 15/- from accused-appellant Kaptan Singh, but accused-appellant

Kaptan Singh was ready to give only Rs. 10/-. In the meantime, another

tenant H.N. Singh came there and started abusing (PW-2) Ram Singar

Pandey. By that time, another tenant deceased Ram Niwas Rao also came

there and objected the conduct of accused-persons but accused-appellant

Kaptan Singh gave a knife blow at the lip of (PW-2) Ram Singar Pandey,

while accused-appellant H.N. Singh gave a knife blow in testicles region

of Ram Niwas Rao by stating that he always used to support the landlord

Ram Singar Pandey. This incident was witnessed by wife of deceased

Ram Niwas Rao, his mother and several other persons. After the incident,

both the accused-appellants fled away from the spot. The alleged incident

was seen in the light of electricity. (PW-2) Ram Singar Pandey and

deceased Ram Niwas Rao were taken to Hallet hospital and were

medically examined but deceased Ram Niwas Rao expired on the same

night at around 1.00 P.M.

19.(PW-3) S.S.I. Shanker conducted investigation and has proved the

documents including site plan of the spot. (PW-4) Dr. P.S. Mishra has

conducted postmortem. (PW-5) H.C. Chandra Kumar has recorded FIR.

(PW-6) Dr. N.C. Yadav has medically examined injured (PW-2) Ram

Singar Pandey as well as deceased Ram Niwas Rao, while (PW-7)

Constable Chandrapal Singh has assisted during investigation. (PW-8)

Jitendra Tewari has not supported prosecution and was declared hostile.

20.Close scrutiny of the evidence shows that the statements of (PW-1)

Vimla Devi and (PW-2) Ram Singar Pandey are clear, cogent and credible.

Theyhave been subjected to cross-examination, but they remained stick to the

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prosecution version and no such fact, contradiction or inconsistency could

emerge, so as to create any doubt about their testimony. Keeping in view

the fact that after incident, deceased as well as injured were taken to

hospital and were admitted there and that on the same night deceased Ram

Niwas Rao has succumbed to injuries, it is apparent that the first

information report of the incident was lodged without any undue delay.

Version of (PW-1) Vimla Devi finds corroboration from testimony of

(PW-2) Ram Singar Pandey and is fully consistent with medical evidence.

It is also to be kept in mind that (PW-2) Ram Singar Pandey has himself

sustained injuries in the same incident. In Jarnail Singh Vs. State of

Punjab (2009) 9SCC 719, the Supreme Court reiterated the special

evidentiary status accorded to the testimony of an injured accused. The

fact that the witness sustained injuries at the time and place of occurrence,

lends support to his testimony that he was present during the occurrence.

In case, the injured witness is subjected to lengthy cross- examination and

nothing can be elicited to discard his testimony, it should be relied upon.

Similar view was expressed in the case of Krishan v State of Haryana,

(2006) 12 SCC 459. Hon'ble Supreme Court in Criminal Appeal Nos.

513-514 of 2014 Baleshwar Mahto & Anr. v. State of Bihar & Anr.,

decided on 09.01.2017, has reiterated the law as under :

"28. The question of the weight to be attached to the evidence of a

witness that was himself injured in the course of the occurrence

has been extensively discussed by this Court. Where a witness to

the occurrence has himself been injured in the incident, the

testimony of such a witness is generally considered to be very

reliable, as he is a witness that comes with a built-in guarantee of

his presence at the scene of the crime and is unlikely to spare his

actual assailant(s) in order to falsely implicate someone.

"Convincing evidence is required to discredit an injured witness."

[Vide Ramlagan Singh v. State of Bihar [(1973) 3 SCC 881:1973

SCC (Cri) 563:AIR 1972 SC 2593], Malkhan Singh v. State of U.P.

[(1975) 3 SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12],

Machhi Singh v. State of Punjab [(1983) 3 SCC 470 : 1983 SCC

(Cri) 681], Appabhai v. State of Gujarat [1988 Supp SCC 241 :

1988 SCC (Cri) 559 : AIR 1988 SC 696], Bonkya v. State of

Maharashtra [(1995) 6 SCC 447 : 1995 SCC (Cri) 1113], Bhag

Singh [(1997) 7 SCC 712 : 1997 SCC (Cri) 1163], Mohar v. State

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of U.P. [(2002) 7 SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c),

Dinesh Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3

SCC (Cri) 472], Vishnu v. State of Rajasthan [(2009) 10 SCC 477 :

(2010) 1 SCC (Cri) 302], Annareddy Sambasiva Reddy v. State of

A.P. [(2009) 12 SCC 546 : (2010) 1 SCC (Cri) 630] and Balraje v.

State of Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri)

211] 29. While deciding this issue, a similar view was taken in

Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 : (2010) 1 SCC

(Cri) 107] , where this Court reiterated the special evidentiary

status accorded to the testimony of an injured accused and relying

on its earlier judgments held as under: (SCC pp. 726-27, paras 28-

29)

"28. Darshan Singh (PW 4) was an injured witness. He had been

examined by the doctor. His testimony could not be brushed aside

lightly. He had given full details of the incident as he was present

at the time when the assailants reached the tubewell. In

Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3)

SCC 235 : 1994 SCC (Cri) 1694] this Court has held that the

deposition of the injured witness should be relied upon unless there

are strong grounds for rejection of his evidence on the basis of

major contradictions and discrepancies, for the reason that his

presence on the scene stands established in case it is proved that

he suffered the injury during the said incident.

In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC

(Cri) 2021] a similar view has been reiterated observing that the

testimony of a stamped witness has its own relevance and efficacy.

The fact that the witness sustained injuries at the time and place of

occurrence, lends support to his testimony that he was present

during the occurrence. In case the injured witness is subjected to

lengthy cross-examination and nothing can be elicited to discard

his testimony, it should be relied upon (vide Krishan v. State of

Haryana [(2006) 12 SCC 459 : (2007) 2 SCC (Cri) 214] ). Thus,

we are of the considered opinion that evidence of Darshan Singh

(PW 4) has rightly been relied upon by the courts below."

30. The law on the point can be summarised to the effect that the

testimony of the injured witness is accorded a special status in law.

This is as a consequence of the fact that the injury to the witness is

an inbuilt guarantee of his presence at the scene of the crime and

because the witness will not want to let his actual assailant go

unpunished merely to falsely implicate a third party for the

commission of the offence. Thus, the deposition of the injured

witness should be relied upon unless there are strong grounds for

rejection of his evidence on the basis of major contradictions and

discrepancies therein." In this very judgment, relationship between

the medical evidence and ocular evidence was also discussed,

based on number of earlier precedents, as under: "33. In State of

Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it

was held as follows: (SCC p. 101, para 15)

"15. The opinion given by a medical witness need not be the last

word on the subject. Such an opinion shall be tested by the court. If

the opinion is bereft of logic or objectivity, the court is not obliged

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to go by that opinion. After all opinion is what is formed in the

mind of a person regarding a fact situation. If one doctor forms

one opinion and another doctor forms a different opinion on the

same facts it is open to the Judge to adopt the view which is more

objective or probable. Similarly if the opinion given by one doctor

is not consistent with probability the court has no liability to go by

that opinion merely because it is said by the doctor. Of course, due

weight must be given to opinions given by persons who are experts

in the particular subject."

In Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp

(3) SCC 235 : 1994 SCC (Cri) 1694] the Court has held that the

deposition of the injured witness should be relied upon unless there are

strong grounds for rejection of his evidence on the basis of major

contradictions and discrepancies, for the reason that his presence on the

scene stands established in case it is proved that he suffered the injury

during the said incident.

It has been held that law on the point can be summarised to the

effect that the testimony of the injured witness is accorded a special status

in law. This is as a consequence of the fact that the injury to the witness is

an inbuilt guarantee of his presence at the scene of the crime and because

the witness will not want to let his actual assailant go unpunished merely

to falsely implicate a third party for the commission of the offence. Thus,

the deposition of the injured witness should be relied upon unless there

are strong grounds for rejection of his evidence on the basis of major

contradictions and discrepancies therein.

21.When the aforesaid principles are applied in the facts of this case,

we find that testimony of injured witness (PW-2) Ram Singar Pandey is

quite cogent and categorical. It is correct that (PW-1) Vimla Devi is wife

of deceased but as incident took near her house, thus, her presence at spot

is quite natural. It is well settled position that a natural witness may not be

labelled as interested witness. Interested witnesses are those who want to

derive some benefit out of the litigation/case. In case the circumstances

reveal that a witness was present on the scene of occurrence and had

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witnessed the crime, his deposition cannot be discarded merely on the

ground of being closely related to the victim. Generally close relations of

the victim are unlikely to falsely implicate anyone. Law reports are replete

with cases, wherein it has been laid down that Relationship is not

sufficient to discredit a witness unless there is motive to give false

evidence to spare the real culprit and falsely implicate an innocent person

is alleged and proved. A witness is interested only if he derives benefit

from the result of the case or as hostility to the accused. (Vide State of

Punjab Vs Hardam Singh, 2005, S.C.C. (Cr.) 834, Dilip Singh Vs State of

Punjab, A.I.R. 1983, S.C. 364, Harbans Kaur V State of Haryana, 2005,

S.C.C. (Crl.) 1213; and State of U.P. vs. Kishan Chandra and others, 2004

(7), S.C.C. 629). It is pretty much settled that a close relative, who is a

very natural witness in the circumstances of a case, cannot be regarded as

an 'interested witness.

22.In the instant case presence of (PW-1) Vimla Devi is quite natural

and she deposed cogently. She has been subjected to cross-examination

but no adverse fact could come out. Further, (PW-2) Ram Singar Pandey

is an injured eye witness. There are absolutely no reasons to doubt his

testimony, which finds ample corroboration from (PW-1)Vimla Devi as

well as supported by medical evidence. Considering all aspects, testimony

of (PW-1) Vimla Devi and (PW-2) Ram Singar Pandey is found credible.

We find no force in argument that (PW-1) Vimla Devi and (PW-2) Ram

Singar Pandey are not reliable or they are interested witnesses.

23.In view of aforesaid, it is clear that the prosecution has been able to

prove the alleged incident, however, it is to be considered whether both

the accused-appellants were having common intention to cause death of

the deceased. Perusal of evidence shows that the alleged incident took

place suddenly at the spur of moment. There is no evidence to indicate

that accused persons have any pre-arranged plan to commit murder of

deceased. It is settled law that the common intention to commit a criminal

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act depends upon the circumstances. In the case of Hira Lal Malik v.

State, 1977 CrLJ 1921, the Supreme Court observed that :

“38.Common intention is a state of mind of an accused

which can be inferred objectively from his conduct

displayed in the course of commission of crime as also

prior and subsequent attendant circumstances. Mere

participation in the crime with others is not sufficient to

attribute common intention to one of others involved in

the crime. The subjective element in common intention

therefore should be proved by objective test. It is only

then one accused can be made vicariously liable for the

acts and deeds of the other co-accused.”

The Supreme Court in the case of Ramesh Singh @ Photti v. State

of A.P., (2004) 11 SCC 305, has extensively dealt with the scope of

Section 34 of the IPC. It was observed that :

“To appreciate the arguments advanced on behalf of

the appellants it is necessary to understand the object

of incorporating Section 34 in the Indian Penal Code.

As a general principle in a case of criminal liability it

is the primary responsibility of the person who

actually commits the offence and only that person

who has committed the crime can be held to guilty. By

introducing Section 34 in the penal code the

Legislature laid down the principle of joint liability in

doing a criminal act. The essence of that liability is to

be found in the existence of a common intention

connecting the accused leading to the doing of a

criminal act in furtherance of such intention. Thus, if

the act is the result of a common intention then every

person who did the criminal act with that common

intention would be responsible for the offence

committed irrespective of the share which he had in

its perpetration. Section 34 IPC embodies the

principles of joint liability in doing the criminal act

based on a common intention. Common intention

essentially being a state of mind it is very difficult to

procure direct evidence to prove such intention.

Therefore, in most cases it has to be inferred from the

act like, the conduct of the accused or other relevant

circumstances of the case. The inference can be

gathered by the manner in which the accused arrived

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at the scene, mounted the attack, determination and

concert with which the attack was made, from the

nature of injury caused by one or some of them. The

contributory acts of the persons who are not

responsible for the injury can further be inferred from

the subsequent conduct after the attack. In this regard

even an illegal omission on the part of such accused

can indicate the sharing of common intention. In

other words, the totality of circumstances must be

taken into consideration in arriving at the conclusion

whether the accused had the common intention to

commit an offence of which they could be convicted.

(See Noor Mohammad Yusuf Momin AIR 1971 SC

855)''.

Common intention essentially being a state of mind and can only be

gathered by inference drawn from facts and circumstances established in a

given case. In case Nand Kishore v. State of Madhya Pradesh, (2011) 12

SCC 120, the Apex Court discussed the ambit and scope of Section 34

Indian Penal Code as well as its applicability to a given case, as under:

“20. A bare reading of this section shows that the section

could be dissected as follows:

(a) Criminal act is done by several persons;

(b) Such act is done in furtherance of the common

intention of all; and

Each of such persons is liable for that act in the same

manner as if it were done by him alone.

It was held that these three ingredients would guide the court in

determining whether an accused is liable to be convicted with the aid of

Section 34. While first two are the acts which are attributable and have to

be proved as actions of the accused, the third is the consequence. Once the

criminal act and common intention are proved, then by fiction of law,

criminal liability of having done that act by each person individually

would arise. The criminal act, according to Section 34 Indian Penal Code

must be done by several persons. The emphasis in this part of the section

is on the word "done". It only flows from this that before a person can be

convicted by following the provisions of Section 34, that person must

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have done something along with other persons. Some individual

participation in the commission of the criminal act would be the

requirement. Every individual member of the entire group charged with

the aid of Section 34 must, therefore, be a participant in the joint act

which is the result of their combined activity.”

24.In view of the above discussion, it is manifest that to establish a

case under Section 34 IPC, prosecution has to prove beyond all

reasonable doubt that the appellant had the knowledge of the intention of

his co-accused and they voluntarily shared the said intention. The

prosecution has to establish that in furtherance of the said intention, the

appellant committed certain overt act which was responsible for the

murder of the deceased. It is not that any and every act done during the

course of attack on the deceased would indicate that the appellant shared

the common intention, and only such overt act may be relevant which

indicate that the appellant also shared the intention to cause the death of

the deceased.

25.In the instant case (PW-2) Ram Singar Pandey was demanding

electricity dues from his tenant accused-appellant Kaptan Singh and over

that issue, hot talking took place. Accused-appellant H.N. Singh, who was

another tenant, also came there and protested against the demand of

electricity dues. Meanwhile, deceased Ram Niwas Rao, another tenant,

intervened and being outraged of the same, accused-appellant H.N. Singh

gave a knife blow at inguinal region of Ram Niwas Rao (deceased).

Accused-appellant Kaptan Singh has not caused any injuries to the

deceased. There is no evidence of even any exhortation by accused-

appellant Kaptan Singh. These facts clearly indicate that there was no pre-

arranged plan or meeting of minds between two accused-persons co

commit murder of deceased and it was the individual act of accused-

appellant H.N. Singh, which caused death of the deceased. It is quite

apparent that there was no common intention between the two accused-

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persons to commit murder of deceased and that the act of causing death of

deceased Ram Niwas Rao was an individual act of accused-appellant H.N.

Singh. Here, it may be also stated that accused-appellant H.N. Singh was

charged under Section 302 simplicitor of I.P.C., while accused-appellant

Kaptan Singh was charged under Section 302/34 of I.P.C. and thus, even

the prosecution has not come up with a case that both the accused-persons

have caused death of deceased in pursuance of common intention,

therefore, conviction of accused-appellant Kaptan Singh under Section

302/34 of I.P.C. is not in accordance with law and thus, he is liable to be

acquitted under Section 302/34 of I.P.C.

26.Next question, which arises for consideration is whether the act and

mischief of the accused-appellant H.N. Singh falls within the ambit of

''murder'' so as to make him liable for conviction under Section 302 of

I.P.C. As stated above, the alleged incident took place suddenly without

any premeditation over the issue of electricity dues between the landlord

and tenants and when deceased Ram Niwas Rao, who was another tenant,

tried to intervene, being outraged by his intervention, accused-appellant

H.N. Singh gave a knife blow at the inguinal region of Ram Niwas Rao,

which resulted into his death. Before proceeding further, it is relevant to

refer to the provisions of Section 300 of IPC, which read as under:

"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 -

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

16

likely to cause death, and commits such act without

any excuse for incurring the risk of causing death or

such injury as aforesaid.

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.

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

17

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

age of eighteen years, suffers death or takes the risk

of death with his own consent."..

It is well settled that for bringing in operation Exception 4 to

Section 300 of Indian Penal Code, it has to be established that the act was

committed without premeditation, in a sudden fight in the heat of passion

upon a sudden quarrel without the offender having taken undue advantage

and not having acted in a cruel or unusual manner. The fourth exception

of Section 300 of Indian Penal Code covers acts done in a sudden fight

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. In case of Pappu V State of Madhya Pradesh (2006) 7 SCC 391

the Apex Court exhaustively dealt with the parameters of Exception IV to

section 300 of IPC. The relevant paras of the judgment are reproduced as

under:

"13...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

Indian Penal Code is not defined in the IPC. It takes

two to make a fight. Heat of passion requires that

18

there must be no time for the passions to cool down

and in this case, the parties have worked themselves

into a fury on account of the verbal altercation in the

beginning. A fight is a combat between two and more

persons whether with or without weapons. It is not

possible to enunciate any general rule as to what

shall be deemed to be a sudden quarrel. It is a

question of fact and whether a quarrel is sudden or

not must necessarily depend upon the proved facts of

each case. For the application of Exception 4, it is not

sufficient to show that there was a sudden quarrel and

there was no premeditation. It must further be shown

that the offender has not taken undue advantage or

acted in cruel or unusual manner. The expression

"undue advantage" as used in the provision means

"unfair advantage".

In case of Ramautar V State of UP 2017 (1) All JIC 237, there

was no pre-meditation or prior concert on the part of the accused persons

to commit murder of deceased and the incident happened on the spur of

the moment and in an uncontrollable, embittered and agitated state of

enragement, thus, depriving the accused persons of their power of self

control. It was observed that though during the assaults, the accused

persons were understandably aware of the likely results thereof, it is

difficult to perceive that they had any common object of eliminating the

deceased. In view of these facts, Apex Court on a consideration of the

totality of the circumstances attendant on the case, has upheld the

conviction of the appellants under section 304 Part-I read with Section

147, 148, 149 IPC, as recorded by the High Court.

In the case of Rampal Singh Vs. State of U.P. (2012) 8 Supreme

Court Cases 289, the Apex Court has considered the legal aspect as to

when culpable homicide would amount to murder and when it would not

amount to murder. Hon'ble the Apex Court has held in paragraph no. 22 as

under:-.

“22. Thus, where the act committed is done with the

19

clear intention to kill the other person, it will be a

murder within the meaning of Section 300 of the Code

and punishable under Section 302 of the Code but

where the act is done on grave and sudden

provocation which is not sought or voluntarily

provoked by the offender himself, the offence would

fall under the exceptions to Section 300 of the Code

and is punishable under Section 304 of the Code.

Another fine tool which would help in determining

such matters is the extent of brutality or cruelty with

which such an offence is committed.”.

In the case of Jhaptu Ram Vs. State of Himachal Pradesh (2014)

12 SCC 410, the facts were that an altercation took place between the

appellant and his son. The accused fired at the deceased. Receiving gun

shot injury, he fell down and died. In this background, the Apex Court

converted the conviction of the appellant under Section 304 Part-I I.P.C

and awarded sentence of ten years rigorous imprisonment and also with a

fine of Rs. 5,000/-.

In case of State of Madhya Pradesh Vs. Gangabishan @ Vishnu

& Ors 2018 Law Suit (SC) 655, the deceased suffered gunshot injury

and entry wound was on back of his left thigh and the shot was fired from

his backside, which was fired within the range. It was noticed that in view

of the medical evidence, it would be easy to infer that if accused No.1 was

having intention to commit murder of the deceased and used fire arm for

that purpose, the injury could have been caused on upper limb, above

waist of the deceased but the part chosen for causing injury was the back

portion of left thigh. Thus, though the accused No.1 was not having

intention to commit murder of the deceased but the act was to cause

bodily injury which was likely to cause death. The High Court found that

he would be responsible for commission of culpable homicide not

amounting to murder punishable under Section 304 (Part I) of IPC. The

High Court after scanning the entire evidence also held that the

respondents were not having an intention to commit murder of the

20

deceased. In view these specific facts and evidence, the judgment of the

High Court was upheld.

In case of Gurmukh Singh V State of Haryana (2009) 15 SCC

635 after scanning all the previous decisions it was stated that where the

death was caused by a single blow, the Apex Court indicated, though not

exhaustively, a few factors to be taken into consideration while awarding

the sentence, observed as under:

"23. These are some factors which are required to be

taken into consideration before awarding appropriate

sentence to the accused. These factors are only

illustrative in character and not exhaustive. Each case

has to be seen from its special perspective. The

relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur

of the moment;

(c) The intention/knowledge of the accused while

inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the

victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the

accused;

(g) Whether the injury was caused without

premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting

the injury and the force with which the blow was

inflicted;

(i) The criminal background and adverse history of the

accused;

(j) Whether the injury inflicted was not sufficient in the

ordinary ourse of nature to cause death but the death

21

was because of shock;

(k) Number of other criminal cases pending against

the accused;

(l) Incident occurred within the family members or

close relations;. (m) The conduct and behavior of the

accused after the incident.

Whether the accused had taken the injured/the

deceased to the hospital immediately to ensure that

he/she gets proper medical treatment? These are some

of the factors which can be taken into consideration

while granting an appropriate sentence to the

accused."

It was held that the list of circumstances enumerated

above is only illustrative and not exhaustive. It was

observed that proper and appropriate sentence to the

accused is the bounded obligation and duty of the

court. The endeavor of the court must be to ensure

that the accused receives appropriate sentence, in

other words, sentence should be according to the

gravity of the offence. These are some of the relevant

factors which are required to be kept in view while

convicting and sentencing the accused.

The Apex Court in State of A.P. vs. Rayavarapu Punnayya and

Another reported in 1976 (4) SCC 382 while drawing a distinction

between Section 302 and Section 304 of IPC held as under:

"12. In the scheme of the Penal Code, "culpable

homicide" is genus and "murder" its specie. All

"murder" is "culpable homicide" but not vice-versa.

Speaking generally, "culpable homicide" sans

"special characteristics of murder", is "culpable

homicide not amounting to murder". For the purpose

of fixing punishment, proportionate to the gravity of

this generic offence, the Code practically recognises

three degrees of culpable homicide. The first is, what

may be called, "culpable homicide of the first

degree". This is the greatest form of culpable

homicide, which is defined in Section 300 as

"murder". The second may be termed as "culpable

22

homicide of the second degree". This is punishable

under the first part of Section 304. Then, there is

"culpable homicide of the third degree". This is the

lowest type of culpable homicide and the punishment

provided for it is, also, the lowest among the

punishments provided for the three grades. Culpable

homicide of this degree is punishable under the

second part of Section 304.

21. From the above conspectus, it emerges that

whenever a court is confronted with the question

whether the offence is "murder" or "culpable homicide

not amounting to murder", on the facts of a case, it

will be convenient for it to approach the problem in

three stages. The question to be considered at the first

stage would be, whether the accused has done an act

by doing which he has caused the death of another.

Proof of such causal connection between the act of the

accused and the death, leads to the second stage for

considering whether that act of the accused amounts to

"culpable homicide" as defined in Section 299. If the

answer to this question is prima facie found in the

affirmative, the stage for considering the operation of

Section 300 of the Penal Code, is reached. This is the

stage at which the court should determine whether the

facts proved by the prosecution bring the case within

the ambit of any of the four clauses of the definition of

"murder" contained in Section 300. If the answer to

this question is in the negative the offence would be

"culpable homicide not amounting to murder",

punishable under the first or the second part of Section

304, depending, respectively, on whether the second or

the third clause of Section 299 is applicable. If this

question is found in the positive, but the case comes

within any of the exceptions enumerated in Section

300, the offence would still be "culpable homicide not

amounting to murder", punishable under the first part

of Section 304, of the Penal Code."

In Budhi Singh vs. State of Himachal Pradesh, reported in 2012,

(13) SCC 663, the Supreme Court held as under:

18. The doctrine of sudden and grave provocation is

incapable of rigid construction leading to or stating

any principle of universal application. This will

23

always have to depend on the facts of a given case.

While applying this principle, the primary obligation

of the court is to examine from the point of view of a

person of reasonable prudence if there was such grave

and sudden provocation so as to reasonably conclude

that it was possible to commit the offence of culpable

homicide, and as per the facts, was not a culpable

homicide amounting to murder. An offence resulting

from grave and sudden provocation would normally

mean that a person placed in such circumstances

could lose self-control but only temporarily and that

too, in proximity to the time of provocation. The

provocation could be an act or series of acts done by

the deceased to the accused resulting in inflicting of

injury.

19. Another test that is applied more often than not is

that the behaviour of the assailant was that of a

reasonable person. A fine distinction has to be kept in

mind between sudden and grave provocation resulting

in sudden and temporary loss of self-control and the

one which inspires an actual intention to kill. Such act

should have been done during the continuation of the

state of mind and the time for such person to kill and

reasons to regain the dominion over the mind. Once

there is premeditated act with the intention to kill, it

will obviously fall beyond the scope of culpable

homicide not amounting to murder....."

In Kikar Singh vs. State of Rajasthan reported in 1993 (4) SCC

238, the Apex Court held as under:

"8. The counsel attempted to bring the case within

Exception 4. For its application all the conditions

enumerated therein must be satisfied. The act must be

committed without premeditation in a sudden fight in

the heat of passion; (2) upon a sudden quarrel; (3)

without the offender's having taken undue advantage;

(4) and the accused had not acted in a cruel or

unusual manner. Therefore, there must be a mutual

combat or exchanging blows on each other. And

however slight the first blow, or provocation, every

fresh blow becomes a fresh provocation. The blood is

already heated or warms up at every subsequent

stroke. The voice of reason is heard on neither side in

24

the heat of passion. Therefore, it is difficult to

apportion between them respective degrees of blame

with reference to the state of things at the

commencement of the fray but it must occur as a

consequence of a sudden fight i.e. mutual combat and

not one side track. It matters not what the cause of

the quarrel is, whether real or imaginary, or who

draws or strikes first. The strike of the blow must be

without any intention to kill or seriously injure the

other. If two men start fighting and one of them is

unarmed while the other uses a deadly weapon, the

one who uses such weapon must be held to have taken

an undue advantage denying him the entitlement to

Exception 4. True the number of wounds is not the

criterion, but the position of the accused and the

deceased with regard to their arms used, the manner

of combat must be kept in mind when applying

Exception 4. When the deceased was not armed but

the accused was and caused injuries to the deceased

with fatal results, the Exception 4 engrafted to Section

300 is excepted and the offences committed would be

one of murder.

9. The occasion for sudden quarrel must not only be

sudden but the party assaulted must be on an equal

footing in point of defence, at least at the onset. This

is specially so where the attack is made with

dangerous weapons. Where the deceased was

unarmed and did not cause any injury to the accused

even following a sudden quarrel if the accused has

inflicted fatal blows on the deceased, Exception 4 is

not attracted and commission must be one of murder

punishable under Section 302. Equally for attracting

Exception 4 it is necessary that blows should be

exchanged even if they do not all find their target.

Even if the fight is unpremeditated and sudden, yet if

the instrument or manner of retaliation be greatly

disproportionate to the offence given, and cruel and

dangerous in its nature, the accused cannot be

protected under Exception 4...."

27.Applying the above discussed principles of law in the present case,

what emerges from the evidence, is that there was no enmity between the

parties and the incident occurred at spur of moment on a trivial issue of

25

electricity dues. There is nothing to show that there was any premeditation

to commit murder of deceased Ram Niwas Rao. The alleged incident took

place in a heat of passion upon sudden quarrel and accused-appellant H.N.

Singh has not taken any due advantage or acted in cruel manner.

Considering the entire facts and evidence, case of accused-appellant H.N.

Singh would fall under Exception-4 of Section 300 of I.P.C. and thus

accused-appellant H.N. Singh is liable to be convicted for committing

culpable homicide not amounting to murder. Considering all the attending

facts, evidence and nature of injuries caused to the deceased, we are of the

view that accused-appellant H.N. Singh is liable to be convicted under

Section 304, Part-II of I.P.C. and not under Section 302 of I.P.C. However,

so far as, conviction of both the accused-appellants under Sections 324/34

of I.P.C. is concerned, the same is based on evidence and calls for no

interference.

28.So far as question of sentence is concerned, alleged incident took

place on 04.05.1986 and thus, period of 33 years has passed since then.

Considering all the aspect of the matter, it appears that ends of justice

would be served if accused-appellant H.N. Singh is sentenced to seven

years rigorous imprisonment under Section 304 Part-II of I.P.C.

Accordingly, conviction of accused-appellant H.N. Singh is altered into

under Section 304 Part-II of IPC and he is sentenced to rigorous

imprisonment of seven years. Conviction and sentence of accused-

appellant Kaptan Singh under Section 302/34 of I.P.C. is set aside. So far

as sentence under Section 324/34 of I.P.C. is concerned, injured has

sustained only simple injury and considering all facts, both the accused-

appellants are sentenced to the period already undergone. We order

accordingly.

29.Considering entire facts and provision of Section 357 of Cr. P.C.

and judgment of Hon'ble Apex Court in Ankush Shivaji Gaikwad Vs.

26

State of Maharasthra reported in 2013 (6) SCC 770, it is directed that

accused-appellant H.N. Singh shall pay compensation of Rs. 50,000/- to

widow of deceased Ram Niwas Rao. He is directed to deposit the said

amount before the Trial Court within six months. In the eventuality of

depositing the said amount by the accused-appellant H.N. Singh before

the trial court, it would be duty of the trial court to disburse the said

amount in favour of wife of deceased Ram Niwas Rao. Similarly, we also

direct that accused-appellant Kaptan Singh shall pay compensation of Rs.

5000/- to injured (PW-2) Ram Singar Pandey and he shall deposit the said

amount before the trial court within one month. In the eventuality of

depositing the said amount before the trial court, it shall be released in

favour of (PW-2) Ram Singar Pandey. In case accused-appellants fail to

deposit the said compensation within stipulated period, the court below

shall proceed against them in the light of judgment of Hon'ble Apex Court

in Kumaran Vs. State of Kerala and another reported in 2017 (7) SCC

471.

30.Both the accused-appellants are stated to be on bail. Accused-

appellant H.N. Singh be taken into custody forthwith to serve remaining

sentence. No order is required in respect of accused-appellant Kaptan

Singh.

31.Both Appeals are partly allowed in above t erms.

32. We appreciate the assistance rendered by Sri Sangam Lal

Kesharwani , learned Amicus Curiae and direct that Rs. 7,000/- shall be

paid to him by the State Government, as his remuneration.

33.Let a copy of this order be sent to the court concerned forthwith for

information.

(Raj Beer Singh,J) (Pritinker Diwaker,J)

Dated: 05.11.2019/T.S.