1

AFR

Reserved on:- 25.05.2022

Delivered on:- 31.05.2022

Court No. - 46

Case :- CRIMINAL APPEAL No. - 4319 of 2012

Appellant :- Manoj Kumar Sharma

Respondent :- State of U.P.

Counsel for Appellant :- C.K. Bhardwaj,Amit Daga

Counsel for Respondent :- Govt. Advocate,Ram Jee Saxena

Hon'ble Mrs. Sunita Agarwal,J.

Hon'ble Mrs. Sadhna Rani (Thakur),J.

(Delivered by Justice Sunita Agarwal)

1. Heard Sri Amit Daga learned Advocate for the

appellant and Sri Patanjail Mishra learned AGA for the State

respondent.

2. This appeal is directed against the judgement and order

dated 24.09.2012 passed by the Additional Sessions Judge, Court

No.8, Bulandshahar in S.T. No.221 of 2010, arising out of Case

Crime No.348 of 2009, under Section 302 IPC, P.S. B.B. Nagar,

District Bulandshahar, whereby the appellant Manoj Kumar

Sharma son of Ved Prakash Sharma, resident of village Dhakoli,

Police Station B.B. Nagar, has been convicted for the offence

under Section 302 IPC and sentenced for life imprisonment.

3. The first information report of the incident occurred on

11.12.2009 at about 02.00 PM, was lodged by Vikas Sharma son

of Ved Prakash Sharma, brother of the accused-appellant Manoj

Kumar Sharma. It may also be noted herein that deceased Rajeev

Kumar Sharma was brother of the first informant as also the

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accused-appellant herein. It was stated in the report that on

11.12.2009 at about 02.00 PM, the informant received a call on

his mobile from Smt. Savita wife of Manoj, the appellant-herein.

She told that the appellant went to the tube-well for watering his

field but deceased Rajeev Kumar was arguing by stating that he

would first water his field and did not allow the appellant to take

water from the tube-well. On the said issue, they fought and

Rajeev sustained firearm injuries. Savita asked the first informant

to take the injured Rajeev to the hospital.

4. On getting this information, the first informant reached

at his tube-well at Kharkali Jungle and saw his brother Rajeev

Kumar Sharma lying blood soaked on a cot. The injured told the

first informant that Manoj Kumar Sharma (the appellant herein)

shot two fires on him through his gun. One Sri Bhagwan @ Kallu

and other passerby tried to save him and intercepted Manoj but he

did not listen to anyone and shot the injured by his licensee gun.

The injured begged him to take to the hospital. The first informant

alongwith other villagers took the deceased to B.B. Nagar

Community Hospital but he succumbed to his injuries on the way.

While keeping the dead body at the Government Hospital, the

first informant went to lodge the report.

5. The check FIR based on the written report lodged on

11.12.2009 was proved by PW-4, the Constable Clerk posted in

the police station B.B. Nagar, being in his handwriting and

signature as Exhibit Ka-2. The G.D. entry report No.31 at 15.45

hrs of the said report was proved by bringing the original G.D. in

the Court and filing the certified carbon copy of the same, by PW-

4, being in his handwriting and signature as Exhibit Ka-3.

6. In cross, PW-4 stated that he could not tell the time of

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sending the special report to the senior officials. However, the

special report was received on 14.12.2009 by the concerned court

but the date of sending of the same from the police station was not

noted. On further confrontation, he stated that no memo or

information of the incident was received from the hospital.

7. The inquest of the dead body was conducted at the

Community Health Center, B.B. Nagar which is evident from the

inquest report proved by PW-7 as Exhibit Ka-12. The related

papers to the inquest prepared for sending the dead body for the

postmortem had been proved as Exhibit Ka-13 to Exhibit Ka-19.

The postmortem report was proved by the doctor entered in the

witness box as PW-5. He stated that he conducted the postmortem

on 12.12.2009 at about 11.30 AM. The body was received in the

sealed state. On external examination, the deceased appeared to

be aged about 32 years, a strong built male. The rigor mortis was

present over the entire body. The injury found on the person of

the deceased as indicated in the postmortem report are:-

“Firearm wound of entry size 5.0 cm x 3.0 cm x chest cavity

deep left side back of chest just lateral to inferior angle of left

scapula. Margins inverted and black.

Firearm would of entry size 3.0 cm x 2.5 cm x chest cavity deep

on   left   side   back   of  chest   3.0   cm   above   from   injury   No.1.

Margins   inverted   and   black.   No   tattooing   present.   On

exploration, 4, 5 and 6 ribs of left side of back were found

fractured,   Left   lung,   pleura,   heart   and   pericardium   were

lacerated. 800 ML blood was found in the left chest cavity. 2

wed pieces and 10 small metallic pellets from left lung and left

side chest cavity.” 

8. As noted above, on internal examination, 4th 5th 6th

left ribs were found fractured. Left lung, pleura, heart and

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pericardium were lacerated. 800 ML blood was found in left chest

cavity. 2 wed pieces and 10 small metallic pellets from left lung

and left side chest cavity. There was 200 ML fluid in the stomach.

Small intestine and large intestine were filled with gases and

water.

9. The cause of death had been stated as hemorrhage and

shock due to antemortem injuries. PW-5 stated that the death was

caused by the firearm injuries sustained by the deceased. The

postmortem report was proved being in his handwriting and

signature by PW-5 as Exhibit Ka-4. The proximate time of death

as stated therein is 02.00 PM on 11.12.2009. It was further stated

by PW-5 that two gun shot injuries sustained by the deceased

were sufficient to cause his death. The wed pieces, pellets and

clothes were sealed and handed over to the Constable who

brought the dead body. PW-5 was cross-examined by the defence

on the issue that looking to the nature of injuries, there was

possibility of immediate death. The doctor, on contradiction,

stated that two gun shot injuries could not occur by one bullet. A

suggestion was also given to PW-5 that the deceased was shot

while lying on his left side.

10. The Investigating Officer had entered in the witness box

as PW-6 and stated that as soon the case was registered, he

received the investigation, recorded the statement of the first

informant, went to the Community Health Centre, B.B. Nagar

where the body of deceased Rajeev Kumar Sharma was found

lying on a cot. The inquest was conducted by PW-7 on his

instruction. After completion of the inquest, he went to the spot of

the incident alongwith the first informant and prepared the site

plan on his pointing out, which was proved as Exhibit Ka-5 in his

handwriting. PW-6 stated that he again went to the Community

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Hospital to ensure that the dead body was sent for the postmortem

and then went to the site of the incident wherefrom he made

recoveries of two empty cartridges 12 bore and the blood soaked

rope of the cot from the spot of the incident. The blood stained

and plain earth were also collected and all the said recovery

memos were proved as Exhibit Ka-6, Ka-7, Ka-8 and Ka-9, being

in the handwriting and signature of PW-6.

11. The statement of Smt. Akhilesh, PW-3 (wife of the

deceased) was recorded on 13.12.2009. On 15.12.2009, on the

report of the informer, the accused was arrested at about 12.40

PM. One SBBL gun license No.47954 was recovered from the

possession of appellant Manoj and the safe custody receiver

receipt of the gun store was also seized. The recovery memo was

prepared and signed by the accused and the witnesses, proved as

Exhibit Ka-10. The statement of the accused-appellant had then

been recorded. On 18.12.2009 the statement of another witness

Shri Bhagwan @ Kalu (PW-2) was recorded. After recording the

statement of other witnesses on 21.12.2009, the incriminating

articles recovered from the spot were sent to FSL on 24.12.2009.

On completion of the investigation, the charge sheet was

submitted and proved as Exhibit Ka-11.

12. The Investigating Officer (PW-6) was confronted on the

issue as to whether he recorded statement of Savita, wife of the

appellants, on whose information, the first informant went to the

spot of the incident. He was further confronted as to whether he

ascertained that the deceased was in a position to speak after

receiving injuries. PW-6 was further confronted with the injuries

shown in the postmortem report to further assert that looking to

the nature of injuries, it was not possible for the injured to speak.

A suggestion was given that the FIR was based on a concocted

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story to which he replied by saying that whatever was written by

the first informant, it was noted by the Constable Clerk.

13. PW-6 was then confronted with the statement of the

first informant recorded in the site plan wherein it was noted that

blood was found below the cot wherein deceased was lying when

the first informant met him. PW-6 replied that blood was found at

one spot only at the site of the incident and not at any other place

and denied the suggestion that the deceased was hit while lying on

the cot. PW-6 was further confronted on the delay in recording the

statement of the witnesses namely Akhilesh and Sri Bhagwan @

Kalu and that the copy of the first information report was not sent

with the body sent for the postmortem and also that the special

report was not sent by him. It is stated by PW-6 that the special

report of the occurrence was sent to the CJM through proper

channel and the delay in noticing the same might be because of

the concerned engagement of the officer in some other work.

14. On the arrest of the accused and recovery of gun, PW-7,

the officer who prepared the recovery memo was crossed who

stated that the recovery memo of gun as Exhibit Ka-10 was

prepared on the spot and denied the suggestion that the accused

Manoj had surrendered in the police station and the gun was

recovered from Choudhary Gun House, Hapur. The suggestion

that no license or cartridges were recovered from the accused

Manoj was also denied. PW-7 denied the suggestion that the

entire recovery proceeding was forged.

15. The ballistic report Exhibit Ka-20 shows that two empty

cartridges recovered from the spot were tallied with the SBBL

gun seized by the police. The clothes of the deceased were found

blood stained. Human blood was found on the clothes of the

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deceased, pieces of rope of cot, pellet and wed pieces found from

inside the dead body. The blood stains on earth were

disintegrated.

16. The prosecution had produced three witnesses of fact,

the first informant as PW-1, an eye witness of the occurrence

namely Shri Bhagwan @ Kalu as PW-2; another eye witness Smt.

Akhilesh Sharma wife of the deceased as PW-3.

17. PW-1 , the first informant, in the examination-in-chief,

reiterated the version of the written report submitted by him. He

then stated that his tube-well was existing in the jungle of

Kharkali Gaon and when he reached at the tube-well, his brother

was lying blood soaked on a cot who told him that appellant

Manoj shot him from his licensee gun. The injured Rajeev was

taken to the Community Hospital in a 'Jugaad' and he succumbed

to his injuries on the way. The written report was scribed by him

and submitted in the P.S., B.B. Nagar, proved as Exhibit Ka-1.

18. In cross, PW-1 described the distance of the place of the

incident with his village as 700 meter and location of the tube-

well in the field. He also described the topography of the place of

the incident with the location of his agricultural field and that of

his brothers, Rajeev Sharma (deceased) and Manoj (appellant). It

was stated by PW-1 that there was a room wherein tube-well was

installed and there were trees near the tube-well. He then stated

that they were four brother and total 44 bighas of land of the joint

family had been partitioned between them. The land of accused

Manoj was at the east of the tube-well whereas chak of Rajeev

(deceased) was at the north abetting the main road. PW-1 then

described the vocation of himself and his three brothers and stated

that he was a teacher in a primary institution situated at a distance

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of 3 km from his village and the school timing was 10.00 AM to

04.00 PM at the time of the incident. Being a Coordinator of Nyay

Panchayat, on temporary basis, alongwith teaching work he was

doing inspection of the primary institutions. On the day of the

incident, he left his home at about 09.30 AM and went to three

primary institutions to make inspection. The suggestion that he

was not in the village at the time of the incident had been repelled

by him. PW-1 then described as to how he had proceeded after the

incident, i.e. that he firstly went to the Hospital and then to the

police station. PW-1 stated that no information of the death was

sent from the Hospital and he wrote the first information report in

the Hospital. The suggestion that he reached the Hospital at

around 04.00 PM was categorically denied.

19. About relationship of brothers, PW-1 stated that the

brothers had normal relationship and there was no enmity

between deceased Rajeev and accused Manoj. No fight had

occurred between them prior to the incident and all brothers used

to address each other as 'Bhaiya' and they never abused each

other. The suggestion that he reached at the place of the incident

after about 1 hour of death of his brother Rajeev had been

categorically denied by PW-1. He then categorically admitted that

he did not mention anything told to him by witnesses Akhilesh

and Sri Bhagwan in the first information report. A suggestion of

enmity of PW-1 with accused Manoj about a compassionate

appointment after death of their father was denied by PW-1. It

was admitted by PW-1 that witnesses Bhagwan and Akhilesh

were related to each other and he denied that the wife of the

deceased Akhilesh never went to the field and she and Bhagwan

were falsely projected as a witness at his instance.

20. PW-1 further stated that he went to the spot of the

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incident alongwith the police after lodging of the first information

report, got the site plan prepared and recovery of the empty

cartridges, blood stained earth was made by the police in his

presence.

21. PW-2, Sri Bhagwan @ Kalu was acquaintance of the

family. He stated that while he was going to his village via

Kharkali on a bicycle, when he reached at the Pakka road near the

tube-well of deceased Rajeev at around 02.00 PM, he saw an oral

altercation between Rajeev and Manoj. They were arguing on the

issue of watering their fields. The wife of Rajeev namely

Akhilesh was present. The oral altercation turned into physical

and they both got entangled. He and Akhilesh tried to intervene

and then Manoj shot two fires from his gun at Rajeev and fled

from the spot. Rajeev was crying to take him to the Hospital but

since he (PW-2) was afraid he left the place to go to his home.

After two days, he came to know that Rajeev had died.

22. In cross, PW-2 stated that he left his house at around

01.00 PM and went to Dhakoli for taking tractor trolley on rent.

However, he could not get it and, therefore, was going back to his

village Bhasauli via Kharkali. The distance between Dhakauli and

Kharkali was stated by PW-2 as 2-2-1/2 KM. He stated that the

Investigating Officer recorded his statement and on confrontation

with the same, PW-2 stated that wrong reason for going to

Kharkali was narrated by the Investigating Officer and he did not

know as to why that was written. The relationship of Smt.

Akhilesh with this witness (PW-2) was admitted but he stated that

Akhilesh was not her real bua (Aunt). He described as to how the

incident had occurred and stated that when Manoj fired the shot,

Rajeev was at a distance of 2 paces and it was so instant that he

could not warn Rajeev. Both the gun shots hit at the back of the

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injured.

23. On further confrontation, PW-2 stated that he went

away from the place of the incident by telling Akhilesh that she

should call her family members and he did not have any phone.

Savita and Manoj were living in B.B. Nagar and Savita was not

present on the spot. He then stated that he was so shaken by the

incident that he did not intimate the police. After reaching his

home, he told about the incident to his family members who went

to B.B. Nagar but he did not go there.

24. The suggestion that he was not present on the spot was

denied by PW-2. He admitted that he left Rajeev on the field and

did not know as to who took him and PW-1, Vikas Sharma, was

not at the spot, by the time he left the place.

25. PW-3 Smt. Akhilesh is the wife of the deceased. She

admitted relationship of the accused with the deceased and stated

that the appellant was quarrelsome (झगड़ालू) by nature and,

therefore, he had separated about 11-12 years ago and was living

separately. She then described as to how the incident had occurred

and in her statement, it has come that the altercation between the

deceased and the appellant occurred on the issue of watering their

fields from the tube-well. She then stated that after the deceased

was hit at the back he fell down and her brother-in-law (Vikas)

namely PW-1 and other villagers took the injured to B.B. Nagar

in a 'Jugaad', her husband died on the way.

26. In cross, PW-3 admitted that after the incident they all

were living together i.e. the first informant, deceased and her son

who was studying in the school. Deceased Rajeev was an

agriculturist and used to go to his field daily and she used to carry

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his food if he would go without having it. PW-3 stated that she

also used to go to the field around 10.00-11.00 AM or thereafter,

or sometime with the deceased depending upon the work. She did

not remember that on the date of the incident whether her husband

(deceased) ate his food. PW-3 then stated that only the

agricultural land of Manoj (the appellant) had been separated and

all other lands were in partnership and her husband Rajeev used to

take care of the entire field with one help. She also used to go to

the field with Rajeev to help. The topography of the place of the

incident, the location of the tube-well was narrated by PW-3. PW-

3, during cross, was shown certain photographs of their chak

which she identified and proved as Material Exhibit Kha-2 &

Kha-3.

27. She stated that PW-3 Sri Bhagwan was not his real

nephew but was related to her. The suggestion that PW-2 Sri

Bhagwan was not present on the spot was denied by PW-3. She

stated that the police had recorded her statement and then stated

that no-one came on the tube-well to save her husband rather they

were crying from the distance. After PW-2, Sri Bhagwan fled

away from the spot other people came in from the road and she

did not know anyone. Some villagers lifted her husband, put him

on the cot lying there at a distance of 2 to 4 paces from the place

where Rajeev was standing and when he was put on the cot, lot of

blood was oozing out from his wound. She could not tell the time

when the first informant had reached at the spot and denied the

suggestion that she took her husband to the B.B. Nagar Hospital

with villagers named as Dharampal and Jogpal. PW-3 stated that

she was shaken by the incident but she spoke and she did not

know as to whether Rajeev was carrying mobile. The suggestion

that she was not present on the spot and was making statement at

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the instance of PW-1, the first informant was categorically denied

by PW-3. She also denied the suggestion that PW-2 Shri

Bhagwan was not present at the spot and was making deposition

at their instance.

28. Placing the oral testimony of the prosecution witnesses

and the documentary evidences on record, it is argued by Sri Amit

Daga learned counsel for the appellant that both the eye witnesses

of the incident are not reliable. The first informant PW-1 is not an

eye witness. He though stated that telephonic information of the

incident was given by Savita wife of the appellant but the

prosecution had not disclosed as to how the factum of the incident

came to the knowledge of Savita, who according to the own case

of the prosecution witness (Investigating Officer) was not present

on the spot. The statement of PW-1, the first informant, that the

deceased told him that accused Manoj had killed him by opening

gun shots is improbable, looking to the gravity of the injuries

sustained by the deceased where heart, pericardium and lungs

were found lacerated as bullet had reached straight-way into the

heart cavity. The only probability which can be inferred that the

deceased had died on the spot.

29. As regards PW-3, wife of the deceased, it is stated that

her presence on the spot was not natural as she admitted during

the course of the examination that she would not go to the

agricultural field regularly. In her statement it has come that she

used to go to the field only to bring food of the deceased and

when questioned, she stated that she did not remember as to

whether her husband ate food on that day. Looking to the status of

the family of the deceased, it is improbable that PW-3, his wife

would go to the field to help in the agricultural work. Even

otherwise, the statement of PW-3 under Section 161 was recorded

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on 13.12.2009, after two days of the incident.

30. It is argued that the prosecution had introduced one

more witness projecting him as an eye witness who is PW-2,

nephew of PW-3, wife of the deceased. As per own testimony of

PW-2, he was crossing the road besides the field of Rajeev

(deceased) by chance and at around 02.00 PM when he reached

on the road near the tube-well, he heard oral altercation between

Rajeev and Manoj. According to PW-2, he went on the spot, tried

to intercept and the incident of firing occurred in his presence.

The conduct of this witness is to be noticed to assess the

truthfulness of his testimony of witnessing the incident.

Admittedly, this witness did not go the house of the deceased to

inform about the incident nor he took the deceased to the hospital

and left his Aunt, Akhilesh (PW-3) and his injured uncle Rajeev

at the place of the incident. The statement of PW-2 that he fled the

scene of the occurrence because of the fear is not acceptable and

shakes his presence on the spot.

31. Moreover PW-3, another eye witnesses stated, in cross,

that other people who were near the place of the incident did not

come to the tube-well and they were shouting to save the

deceased from the place where they were standing. They only

came when PW-2, Sri Bhagwan @ Kallu had fled away from the

spot. For the fact that PW-2 was related to the wife of the

deceased (PW-3), there is a strong possibility of introducing him

as an eye witness at the instance of PW-1 & PW-3.

32. It is argued that even otherwise, PW-2 can only be kept

in the category of a chance witness as his presence on the spot

was not natural. In this scenario, his testimony would require

corroboration from the other material circumstances of the case

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and can be relied upon only if it inspires confidence of the Court

on appreciation with due circumspection and adequate

corroboration. The recoveries made by the Investigating Officer

are also challenged on various grounds.

33. Lastly, it is argued that as per own case of the

prosecution, there was no preanimosity between the accused-

appellant and the deceased. It is the case of the prosecution that

the incident had occurred during a sudden quarrel between two

brothers over a trivial issue of watering their fields from the

common tube-well. Both the alleged eye witnesses stated that the

appellant and deceased were engaged in oral altercation and they

were shouting at each other, which later turned into physical and

while they were entangled, two fires were shot by the appellant

from his single barrel licensee gun. The seat of both the injuries

are at the left side back of the chest and both the injuries are at a

short distance of 3 cm, which further show that there was no

intention of the accused-appellant to kill the deceased. Moreover,

the incident had occurred in the heat of passion when the

appellant being elder brother lost his cool as his younger brother

started arguing with him and then became physical. It has come in

the evidence of PW-3, the alleged eye witness that when the

appellant went to the field he told the deceased to allow him to

water his field from the common tube-well but the deceased did

not agree to that by saying that he was already watering his field

and let him finish it first and that the appellant should wait.

34. The contention is that for the above sequence of events

proved from the prosecution evidence, the present case does not

fall beyond the scope of the offence under Section 304 Part-II; i.e.

of causing injuries with the knowledge that it was likely to cause

death but without any intention to cause death or to cause bodily

injury as is likely to cause death. The contention is that the

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conviction of the appellant under Section 302 IPC is a result of

misappropriation of the evidence and misapplication of law. The

appellant, at the worst, can be convicted and punished for the

offence 304 Part-II, maximum sentence for which is 10 years. In

the alternative, it is submitted that in any case, the offence

committed by the appellant cannot travel beyond Section 304

Part-I. The appellant has already suffered incarceration for a

period of 12 years as he is lodged in jail since the date of the

arrest i.e. 15.12.2009. The prayer is that the Court may sustain the

conviction but reduce the sentence to the period already

undergone.

35. To substantiate the above submissions, reliance is

placed on the decisions of the Apex Court in Pardeshiram Vs.

State of Mahdya Pradesh

1

, Khuman Singh Vs. State of

Madhya Pradesh

2

, Udiya Vs. State of Madhya Pradesh

3

,

Atul Thakur Vs. State of Himachal Pradesh & others

4

Surain Singh Vs. State of Punjab

5

, Ravindra Shalik

Naik & others Vs. State of Maharashtra

6

, Vineed

Kumar Chauhan Vs. State of Uttar Pradesh

7

, Sridhar

Bhuyan vs. State of Orissa

8

, Parkash Chand vs. State of

H.P. B

9

.

36. Learned AGA, on the other hand, defended the

judgement of the trial court with the assertion that it is established

that the appellant had committed the murder with full knowledge

and intention by the single barrel licensee gun which he was

carrying at the place of the incident and he had opened two fires,

1. 2021 (3) SCC 238

2.2020 (18) SCC 763

3.2019 (15) SCC 65

4.2018 (20 SCC 496

5.2017 (5) SCC 796

6.2009 (12) SCC 257

7.2007 (14) SCC 660

8.2004 (11) SCC 395

9.2004 (11) SCC 381

16

one after the other. There is ample evidence against the appellant

and the prosecution has succeeded in proving its case beyond

reasonable doubt that the appellant is the perpetrator of the crime.

In light of the oral testimony of the prosecution witnesses (PW-2

and PW-3) and the promptness of the FIR, there is no scope of

interference in the judgement of conviction and sentence passed

by the trial court. It was a day light murder committed by elder

brother on a trivial dispute with regard to watering of his field.

37. It is argued that the injuries inflicted by the appellant

were sufficient to cause death in the ordinary course of nature and

in this circumstances, the appellant cannot argue that he is not

guilty of murder. A person who inflicts injuries like the present

case, cannot seek shelter of law by saying that the injuries were

accidental or otherwise unintentional. No such inference can be

drawn from the facts and circumstances of the present case. The

argument of the learned counsel for the appellant that the offence

committed by the appellant would fall within the meaning of

Section 304 Part-A or Part II is without any substance. There is no

question of reduction of sentence as the circumstances of the

present case clearly proves that the appellant had committed

murder of his brother with full knowledge and intention that the

gun shot opened by him would cause death to his brother. The

ingredients of Section 300 IPC are attracted and the punishment

under Section 302 IPC for causing murder has rightly been

inflicted by the trial court.

38. On merits, it is argued that both the eye witnesses are

consistent about the manner of occurrence and that the deceased

was killed by the appellant by opening two gun shots on a trivial

issue. The first information report is a prompt report of the

incident and the first informant also proved that the deceased had

fixed the appellant being the only perpetrator of the crime. The

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contention is that in any case, no leniency can be shown to the

appellant and the appeal deserves dismissal.

39. Having heard learned counsel for the parties and

perused the record, we may note that as regards the place of

occurrence of the incident and the manner in which the incident

had occurred, they stand proved with the statements of the

prosecution witnesses and other material circumstances on record.

The presence of PW-3, wife of the deceased at the spot cannot be

doubted, in as much as, the incident had occurred around 02.00

PM when normally wives of agriculturists would go to the field to

bring their food. PW-3, in a natural manner stated that she would

normally go to the field at around 10.00-11.00 AM after finishing

her household work and would bring the food of her husband, if

he had not taken food at home. She also stated that she normally

used to help her husband in agricultural work like cutting of the

weed and spraying of manure. It has also come in the evidence

that out of four brothers, the agricultural land was divided and the

share of appellant Manoj was separated. Amongst the remaining

three brothers, deceased Rajeev was an agriculturist whereas other

two brother were engaged in their jobs. Their fields as such were

being looked after by deceased Rajeev. From the statement of

PW-3, it is evident that the deceased was looking after about 33

bighas of land which came in the share of three brothers as 11

bighas was separated for the appellant Manoj. Looking to the

enormous nature of work being done by the deceased Rajeev, the

statement of PW-3 that she was helping her husband in

agricultural work cannot be discarded.

40. Even otherwise, it has been proved by the prosecution

evidence that PW-1, the first informant took the deceased to the

hospital with the help of other villagers through a vehicle known

as 'Jugaad' and the inquest of the dead body was conducted in the

18

Community Health Centre, B.B. Nagar. As per the inquest report,

the body was kept on a cot in the Community Health Centre. The

first information report of the incident was lodged within 1 hour

45 minutes of the occurrence after the deceased had succumbed to

his injuries. The Investigating Officer went to the spot and

prepared the documentary evidences of the occurrence after

making inspection of the site. Two empty cartridges were

recovered from the spot which did tally with the SBBL gun seized

from the possession of the appellant. As per the statement of the

doctor, the injuries caused to the deceased were sufficient to cause

his death. Nothing contrary could be culled out from the cross

examination of the witnesses (PW-2 & PW-3) to demolish their

presence on the spot or doubt the prosecution story in any manner.

The occurrence of the incident resulting in the homicidal death of

the deceased Rajeev at his field near the tube-well at around 02.00

PM stands proved.

41. It is also proved that the appellant herein namely Manoj

Kumar Sharma is the perpetrator of the crime and the death was

caused during an altercation between the appellant and the

deceased. The suggestion given by the defence to the witness to

establish that it was an accident are found without any substance.

The presence of the eye witnesses on the spot cannot be doubted

and could not be disputed successfully by the defence. In the said

scenario, the argument raised by the learned counsel for the

appellant that the crime committed by the appellant would not fall

within the meaning of Section 300 IPC and can only be said to be

an offence of “culpable homicide not amounting to murder"

attracting punishment under Section 304 IPC, is to be examined.

42. The question is as to whether the act of the appellant in

causing death of the deceased would amount to 'murder' within

the meaning of Section 300 IPC or it is a case of 'culpable

19

homicide which will not amount to murder' attracting punishment

under Section 304 IPC. Further question is as to in which part of

Section 304 IPC, the offence in question would be punishable, in

case, the Court reaches at the conclusion that it was a case of

'culpable homicide not amounting to murder' and not 'murder'.

43. In order to ascertain the same, we are required to go

through the legal principles governing the distinction between the

provisions under Sections 300 and 302 of the Code on the one

hand and Section 304 Part I and Part II of the Code on the other.

Section 299 of the Code which deals with the definition of

culpable homicide is also to be taken note of.

44. Sections 299 and 300 of the Indian Penal Code deal

with the definitions of 'culpable homicide' and 'murder';

respectively. In terms of Section 299, 'culpable homicide' is

described as an act of causing death:- (i) with the intention of

causing death, or (ii) with the intention of causing such bodily

injury as is likely to cause death, or (iii) with the knowledge that

such an act is likely to cause death. As is clear from the reading of

this provision, the first part of it emphasises on the expression

''intention' while the latter upon ''knowledge'. As has been noted in

a catena of decisions, both these words denote positive mental

attitudes of different degrees. The mental element in ''culpable

homicide', i.e. the mental attitude towards the consequences of

conduct is one of intention and knowledge. Once an offence is

caused in any of the above three stated manners, it would be

''culpable homicide'.

45. Section 300, however, deals with ''murder'. Though

there is no clear definition of ''murder' in Section 300 of the Code

but as has been held by the Apex Court and reiterated in Rampal

Singh vs. State of Uttar Pradesh2, ''culpable homicide' is the

genus and ''murder' is its species and all ''murders' are ''culpable

20

homicides' but all ''culpable homicides' are not ''murders'.

46. Another classification that emerges from the Code is

"culpable homicide not amounting to murder", punishable under

Section 304 of the Code. There are decisions which also deal with

the fine line of distinction between the cases falling under Section

304, Part I and Part II.

47. Dealing with a matter, wherein the question for

consideration was whether the offence established by the

prosecution against the appellant therein was "murder" or

"culpable homicide not amounting to murder", the Apex Court in

Vineet Kumar Chauhan vs. State of Uttar Pradesh

10

considered its earlier decision in the State of Andhra Pradesh

Vs. Rayavarapu Punnayya and Another

11

, wherein the then

Justice R.S. Sarkaria brought out the points of distinction between

the two offences under Sections 299 and 300 IPC, reiterating the

law laid down in Virsa Singh Vs. State of Punjab

12

and

Rajwant Singh Vs. State of Kerala

13

. It was held therein

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:- (i) 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;

(ii) proof of such 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 IPC is reached; (iii) the third stage is to determine whether

10.2007 (14) SCC 660

11.1976 (4) SCC 382

12.1958 SC 465

13.AIR 1966 SC 1874

21

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 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.

48. Further, 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 IPC. It

was, however, clarified therein that these were only the broad

guidelines to facilitate the task of the Court and not cast iron

imperative.

49. In Aradadi Ramudu alias Aggiramudu vs. State

through Inspector of Police, Yanam

14

, the question was for

modification of sentence from Section 302 to Section 304 Part II.

While answering the same, the Apex Court had considered the

above noted decisions in Virsa Singh (supra) as also other

decisions in line namely State of U.P. v. Indrajeet

15

; Satish

Narayan Sawant vs. State of Goa

16

and Arun Raj vs.

Union of India

17

to note that for modification of sentence from

Section 302 to Section 304 Part II, not only should there be an

absence of the intention to cause death, but also an absence of

intention to cause such bodily injury that in the ordinary course of

things was likely to cause death. [Reference Paragraph 16]

50. Noticing the above noted decisions, in Rampal Singh

Vs. State of Uttar Pradesh

18

the Apex Court had considered

14.2012 (5) SCC 134

15.2000 (7) SCC 249

16.2009 (17) SCC 724

17.2010 (6) SCC 457

18.2012 (8) SCC 289

22

the distinction between the terms "murder" and "culpable

homicide not amounting to murder". The observation in State of

Andhra Pradesh Vs. Rayavarapu Punnayya (supra) was

noted in paragraph '13' of Rampal Singh (supra) as under:-

"13. In the case of State of A.P. v. Rayavarapu Punnayya, this

Court while clarifying the distinction between these two terms and

their consequences, held as under: ­ 

"12. In the scheme of the Penal Code, ''culpable homicide' is

genus   and   ''murder'   its   species.   All   ''murder'   is   ''culpable

homicide' but not vice versa. Speaking generally, .......''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   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." 

51. The guidelines laid down in its earlier decision in

Phulia Tudu vs. State of Bihar

19

had been noted therein to

reiterate that the safest way of approach to the interpretation and

application of these provisions (Sections 299 and 300) is to keep

in focus the key words used in the various clauses of these

sections. In paragraph '17', it was noted that :-

"17. Section 300 of the Code states what kind of acts, when done

with the intention of causing death or bodily injury as the offender

knows to be likely to cause death or causing bodily injury to any

19.2007 (14) SCC 588

23

person, which is sufficient in the ordinary course of nature to cause

death or the person causing injury knows that it is so imminently

dangerous   that   it   must   in   all   probability   cause   death,   would

amount to "murder". It is also "murder" when  such an act is

committed, without any excuse for incurring the risk of causing

death   or   such   bodily   injury.   The   Section   also   prescribes   the

exceptions   to   "culpable   homicide   amounting   to   murder".   The

Explanations spell out the elements which need to be satisfied for

application of such exceptions, like an act done in the heat of

passion and without pre­ mediation. Where the offender whilst

being deprived of the power of self­ control by grave and sudden

provocation causes the death of the person who has caused the

provocation or causes the death of any other person by mistake or

accident, provided such provocation was not at the behest of the

offender   himself,   "culpable   homicide   would   not   amount   to

murder". This Exception itself has three limitations. All these are

questions of facts and would have to be determined in the facts and

circumstances of a given case." 

52. It was observed in paragraph '21' in Rampal Singh

(supra) that Sections 302 and 304 of the Code are primarily the

punitive provisions. An analysis of these two Sections must be

done having regard to what is common to the offences and what is

special to each one of them. The offence of culpable homicide is,

thus, an offence which may or may not be murder. If it is murder,

then it is culpable homicide amounting to murder, for which

punishment is prescribed in Section 302 of the Code. Section 304

deals with cases not covered by Section 302 and it divides the

offence into two distinct classes, i.e. (a) those in which the death

is intentionally caused; and (b) those in which the death is caused

unintentionally but knowingly. In the former case the sentence of

imprisonment is compulsory and the maximum sentence

admissible is imprisonment for life. In the latter case,

imprisonment is only optional and the maximum sentence only

24

extends to imprisonment for 10 years. The first clause of Section

304 includes only those cases in which offence is really "murder",

but mitigated by the presence of circumstances recognized in the

Exceptions to Section 300 of the Code, the second clause deals

only with the cases in which the accused has no intention of

injuring anyone in particular.

53. In paragraph '22' Rampal Singh (supra), it was

observed that where the act is done with the 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. (emphasis added)

54. It was, thus, held therein that the distinction between

two parts of Section 304 (Part I and Part II) is evident from the

very language of this section. While Part I is founded on the

intention of causing the act by which the death is caused, the other

is attracted when the act is done without any intention but with the

knowledge that the act is likely to cause death.

55. It was further observed therein that it is neither

advisable nor possible to state any straight-jacket formula that

would be universally applicable to all cases for such

determination. Every case essentially must be decided on its own

merit. The Court has to perform the very delicate function of

applying the provisions of the Code to the facts of the case with

the clear demarcation as to under what category of cases, the case

at hand falls and accordingly, punish the accused.

25

56. Referring to an earlier decision in Mohinder Pal

Jolly vs. State of Punjab

20

, it was noted in Rampal Singh

(supra) that the distinction between two parts of Section 304 has

been stated with some clarity therein which reads as under:-

"24. A Bench of this Court in the case of Mohinder Pal Jolly v. State of

Punjab [1979 AIR SC 577], stating this distinction with some clarity,

held as under : 

"11. A question arises whether the appellant was guilty under Part

I of Section 304 or Part II. If the accused commits an act while

exceeding the right of private defence by which the death is caused

either with the intention of causing death or with the intention of

causing such bodily injury as was likely to cause death then he

would be guilty under Part I. On the other hand if before the

application of any of the Exceptions of Section 300 it is found that

he was guilty of murder within the meaning of clause "fourthly",

then no question of such intention arises and only the knowledge is

to be fastened on him that he did indulge in an act with the

knowledge  that   it  was   likely  to   cause   death  but  without  any

intention to cause it or without any intention to cause such bodily

injuries as was likely to cause death. There does not seem to be any

escape from the position, therefore, that the appellant could be

convicted only under Part II of Section 304 and not Part I." 

57. As a guideline as to how the classification of an

offence into either Part of Section 304 would be made, it was

held in paragraph '25' as under:-

"25. ......xxxxxxxxxxxx.......This would have to be decided

with reference to the nature of the offence, intention of the offender,

weapon used, the place and nature of the injuries, existence of pre­

meditated mind, the persons participating in the commission of the

crime and to some extent the motive for commission of the crime. The

evidence led by the parties with reference to all these circumstances

greatly helps the court in coming to a final conclusion as to under

which   penal   provision   of   the   Code   the   accused   is   liable   to   be

20.1979 (3) SCC 30

26

punished. This can also be decided from another point of view, i.e., by

applying the ''principle of exclusion'. This principle could be applied

while taking recourse to a two­stage process of determination. Firstly,

the   Court   may   record   a   preliminary   finding   if   the   accused   had

committed an offence punishable under the substantive provisions of

Section 302 of the Code, that is, ''culpable homicide amounting to

murder'. Then secondly, it may proceed to examine if the case fell in

any of the exceptions detailed in Section 300 of the Code. This would

doubly ensure that the conclusion arrived at by the court is correct on

facts and sustainable in law........xxxxx............." 

58. The following observations in paragraph '16' of the

decision in Aradadi Ramudu alias Aggiramudu (supra)

have been quoted in para '34' to state that while answering the

question for modification of sentence from Section 302 of the

Code to Part II of Section 304 of the Code, it has to be kept in

mind that:-

"not only should there be an absence of the intention to cause

death, but also an absence of intention to cause such bodily

injury that in the ordinary course of things is likely to cause

death." 

59. Keeping in mind the above guidelines laid down by the

Apex Court, in the facts of the present case, the first step in

analysis, would be to examine as to whether the appellant had

committed an offence punishable under the substantive provisions

of Section 302 of the Code, i.e. "culpable homicide amounting to

murder".

60. To return a finding on the issue, we have to determine

as to whether the act by which the death has been caused would

fall in any of the four Clauses detailed in Section 300 of the Code.

61. Analyzing the facts of the instant case, it is to be seen

that both the accused and the deceased were real brothers. The

witnesses had testified that there was no past enmity or acrimony

27

between the two brothers. As per the statement of PW-1, the first

informant, who was also one amongst four brothers, relationship

between brothers was cordial. There was no animosity between

accused Manoj and deceased Rajeev. No fight had occurred

between them prior to the incident. The brothers used to respect

and address each other as 'Bhaiya' and they never used abusive

language while talking. The partition of the agricultural property

after death of their father had occurred with their consent and they

all got equal shares in the total land of approximately 44 bighas.

The land of appellant-Manoj was adjacent to the field of deceased

Rajeev and they had common tube-well which was located in the

field of Rajeev, which lie abetting the main Pakka road which

runs North-South as indicated in the site plan. The crop of wheat

was sown in the fields of both deceased Rajeev and accused-

appellant Manoj, as per the statement of the wife of the deceased

namely PW-3. She stated that appellant came to the field around

afternoon and told his brother Rajeev (deceased) that he wanted to

water his field. But Rajeev did not agree to that and replied that

since his field was being watered, it should be completed first. On

this trivial issue, oral altercation started between two brothers and

they both got entangled in a physical fight.

62. It has also come in the evidence of PW-3 that appellant

Manoj was hotheaded and because of him the agricultural fields

were partitioned. The entire incident, thus, had occurred when the

deceased (Rajeev) refused to allow his elder brother, the appellant

Manoj to water his field first. It is evident that the common tube-

well was situated in the field of deceased Rajeev and it appears

that in this circumstance, the appellant became furious. While

they were arguing and fighting with each other, the appellant who

was carrying his licensee gun opened the gun shots. It is

established that there was a heated exchange of words between

28

two brothers and they got entangled in physical altercation before

the appellant opened the gun shots.

63. The evidence when examined in its entirety, establish

that the appellant had committed the offence without any

premeditation in a sudden fight in the state of anger and the entire

incident happened within a very short span of time. The oral

altercation between two brothers took an ugly turn when they got

entangled in a physical altercation. Though appellant Manoj

opened two gun shots at his brother but the site and distance of

both the injuries show that two shots were opened one after the

other without understanding the consequence of his action while

he was in the heat of passion.

64. It has also come in the evidence of PW-1 that the wife

of the appellant namely Savita gave telephonic information to the

first informant immediately after the incident though she was not

present on the spot. As per the deposition of PW-1, she stated that

in a dispute relating to watering of the field, during fight between

two brothers, Rajeev had sustained gun shot injuries and she also

told the first informant to take deceased Rajeev to the Hospital.

This information was passed on immediately after the incident as

is evident from the statement of PW-1, the first informant, another

brother of the deceased, and when he went on the spot, Rajiv

(deceased) was alive.

65. As noted above, it has come in the testimony of

eyewitness (PW-2) that the wife of the appellant namely Savita

was not present in the field at the time of the incident. On a

question which was posed by the learned counsel for the appellant

as to who had informed Savita about the incident, the answer can

be given from the circumstances which clearly show that it was

the appellant himself who intimated his wife to inform his another

brother Vikash Sharma, who was present in the village, to take his

29

injured brother to the Hospital. This fact goes to show that the

appellant felt remorse and though he himself did not take the

deceased to the hospital but inform his another brother

immediately through his wife so that the life of his deceased

brother be saved. At the cost of repetition, it is to reiterate that no

eyewitness stated that Savita (wife of the appellant) was on the

spot. As per the statement of PW-1, Savita even told him that the

wife of Rajeev namely Smt. Akhilesh was present at the time of

the fight between two brothers.

66. In the above emerging circumstances in light of the

statement of PW-1 (brother of the deceased and the appellant), it

is evident that the appellant had committed the offence while he

was deprived of the power of self control by grave and sudden

provocation for the reason that his younger brother did not accede

to his request. But the death cannot be said to have been caused

by mistake or accident or without the appellant being the party to

the said provocation. The act of the appellant of “culpable

homicide” causing the death of his brother during fight on a trivial

issue, however, would not fall in any of the clauses of Section 300

of the Code as the intention of the appellant to cause death or such

bodily injuries which he knew would cause death of his brother or

sufficient in the ordinary course of nature to cause death, is not

proved.

67. The mere fact that the appellant was carrying his

licensee gun when he went on the spot to water his field cannot be

taken as his intention or plan to kill his brother. The relations

between the brothers being cordial, the tube-well being common,

the crop of wheat having been sown in the fields of both the

brothers (deceased and the appellant) and the urgency shown by

the appellant to water his field vis-a-vis refusal by deceased

Rajeev are the circumstances which would have to be considered

30

cumulatively for objective determination whether the appellant

intended to kill or to inflict bodily injury to his brother.

68. As held in Virsa Singh (supra), the intent required

should not be linked with the seriousness of the injury. Rather the

requirement is that the prosecution must establish that the injuries

inflicted are sufficient to cause death in the ordinary course of

nature. Once the prosecution discharged this burden, the person

who inflicted injuries can only escape if it can be shown, or

reasonably deduced, that the injury was accidental or otherwise,

unintentional. Whether the injuries are serious or otherwise, and if

serious, how serious, is a totally separate and distinct question and

has nothing to do with the question whether the accused intended

to inflict the injuries in question. The question whether the

intention is there or not is one of fact and not of law. Whether the

conclusion should be one way or the other is a matter of proof.

69. The Court, thus, reaches at the answer to the first

question that the appellant had not committed an offence within

the meaning of Section 300 IPC, i.e., "culpable homicide

amounting to murder", which is punishable under Section 302 of

the Code. The incident had occurred in a sudden fight, without

any premeditation in the state of anger, the offence committed by

the appellant, thus, would fall within the meaning of "culpable

homicide not amounting to murder" under Section 304 of the

Code.

70. A further question then would be whether the appellant

is guilty under Part I or Part II of Section 304.

71. As is evident from the record, the appellant opened two

fires on his brother which hit at the left side of the chest of the

deceased and the situs of both the injuries was same, they are

only at a distance of 3 cm from each other. When the appellant

opened fires during the physical altercation upon his brother there

31

was no weapon in the hands of his brother, it, therefore, cannot be

said that the death was caused by mistake or accident or without

overt act of the appellant. The gun is a dangerous weapon and it is

obvious that the appellant was aware that the use of such a

weapon cause death. It is, thus, proved that there was knowledge

on the part of the appellant that if gun shot was opened, the

possibility of the deceased being killed could not be ruled out. But

merely by the said fact, it cannot be said that the appellant had

caused gun shot injuries to his brother with the aim or intention to

kill him. The aforesaid fact itself is not conclusive to hold that

there was an intention on the part of the appellant to kill the

deceased.

72. The circumstance, however, proved that the intention

probably was to merely cause bodily injury as the injuries were

caused by the appellant without premeditation in a sudden fight in

the heat of passion upon a sudden quarrel with his brother and as

is established from the prosecution evidence, out of remorse after

the incident, the appellant also made an effort to save his brother

by conveying the occurrence to his another brother through his

wife. The only inference which could be drawn in the peculiar

facts and circumstances on record is that the intention probably

was to merely cause bodily injury.

73. Having regard to the root cause of the incident and the

events that sequentially unfolded thereafter, we are of the

comprehension that the appellant was overpowered by an

uncontrollable fit of anger so much so that he was deprived of his

power of self control and being drawn in a web of action reflexes,

he fired at the deceased. The fact do not commend to conclude

that the appellant had intention to eliminate his brother though he

had the knowledge of the likely fatal consequence thereof.

74. On overall consideration of the facts situation and also

32

the subsequent reaction of the appellant, we are of the considered

view that the conviction of the appellant ought to be moderated to

one under Section 304 Part I of the Code, "Culpable homicide not

amounting to murder", punishable in the first part (Part I) of

Section 304 of the Code.

75. As we found that in this case, though there may be an

absence of the intention to cause death but it is not where there is

also an absence of intention to cause such bodily injury as is

likely to cause death which in the ordinary course of things is

likely to cause death , we do not agree with the arguments of the

learned counsel for the appellant that the offence committed by

the appellant would fall in the Second Part (Part-II) of Section

304 IPC.

76. Having held that the appellant is guilty of offence under

Section 304 Part I, we partially accept this appeal and alter the

offence from that of Section 302 IPC to one under Section 304

Part I of the Indian Penal Code.

77. Further considering the facts of the case in particular,

according to us, it would meet the ends of the justice if the

sentence for the offence is reduced to the period already

undergone, as the appellant has suffered incarceration for more

than 12 years. The judgement under the appeal is modified in the

above terms.

78. The appellant is in jail. He is hereby ordered to be set at

liberty forthwith, if he is not required to be detained in connection

with any other crime.

79. The appeal is allowed in part.

80. The office is directed to send back the lower court

record along with a certified copy of this judgment for

information and necessary compliance.

81. The compliance report be furnished to this Court

33

through the Registrar General, High Court, Allahabad within one

month.

(Sadhna Rani (Thakur),J.) (Sunita Agarwal, J.)

Order Date :- 31.5.2022

Himanshu