2026:UHC:4469- DB

Reserved on: 25.05.2026

Delivered on: 03.06.2026

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.527 of 2023

Sudarshan Gupta & Another ….....Appellant s

Versus

State of Uttarakhand ..….Respondent

Present:-

Mr. R. S. Sammal with Ms. Sarita Bisht, learned counsel for the

appellants.

Mr. B. N. Maulekhi, learned D.A.G. for the State.

Coram:Hon’ble Ravindra Maithani, J.

Hon’ble Siddhartha Sah, J.

(Per: Hon’ble Siddhartha Sah, J.)

The present Criminal Appeal has been preferred on behalf

of the appellants against the impugned judgment and order dated

07.08.2023 passed by the learned Special Sessions Judge, District

Udham Singh Nagar in Sessions Trial No.40 of 2016 under Sections

302, 323, 34, 452 of IPC and 3(2) 5 of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter

referred to as “the SC/ST Act”), ‘State of Uttarakhand vs. Sudarshan

Gupta & Another’, whereby the appellants have been sentenced as

under:-

Sl.

No.

Conviction Sentence Fine Sentence in lieu of fine

1. 323/34 IPC 3 months R.I. `1,000/- Additional 15 days’ simple

imprisonment

2. 452 IPC 1 year R.I. `1,000/- Additional one month

simple imprisonment

3. 302/34 IPC Life

imprisonment

`10,000/- Additional Six Months

simple imprisonment

Aforesaid sentences were directed to run concurrently.

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2. The relevant facts of the case as stated in this appeal are

as follows:

(i) FIR was registered at Police Station Sitarganj, District

Udham Singh Nagar by the PW 1 Chandan Kumar S/o

Shri Janardan Prasad, R/o Village Nakha, Indra Nagar,

Police Station Sitarganj, District Udham Singh Nagar with

the allegations that on 11.11.2015, the informant along

with his elder brother Dinesh Kumar and his father Shri

Janardan Prasad S/o Shri Koleshwar Prasad, was

celebrating Deepawali at home. At about 9:00 p.m., Ajay

Kumar and Sanjay Kumar were bursting crackers on the

rooftop of their house. When the informant’s father stopped

them from bursting crackers, an altercation ensued

between them. Thereafter, Ajay Kumar and Sanjay Kumar

called their father, the appellant Sudarshan Gupta and the

appellant Vijay Gupta both to the spot.

(ii) It was alleged that the appellants Sudarshan Gupta and

Vijay Kumar came to the rooftop with a Kapa. The

appellant Sudarshan Gupta hit the informant’s father’s

head with Kapa, causing injuries, and pushed him from

the rooftop. When the informant and his brother tried to

save their father, the appellants Sudarshan Gupta, Vijay

Kumar, and Ajay Kumar and Sanjay Kumar with common

intention, assaulted the informant and his brother with

kapa, iron bar and danda and when they got down from

the rooftop and went into their house then four of them -

father and sons entered their house and again attacked

them with sharp-edged weapon, as a result of which the

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informant sustained a deep injury on his head and his

brother sustained grievous injuries on his hand. The

neighbours saved them and with the help of the villagers,

took the injured father to the Government Hospital, where

the doctors declared him dead.

(iii) The said report was registered as FIR No. 238 of 2015

under Sections 302/323 read with Section 34 of the IPC on

12.11.2015 at 01:10 hours, and the same was entered in

the General Diary vide GD Entry No.2 dated 12.11.2015 at

Police Station Sitarganj, District Udham Singh Nagar.

(iv) The inquest/panchnama of the deceased was prepared on

11.11.2015 at CHC Sitarganj, wherein, in the opinion of

the panch witnesses, the death of deceased Janardan

Prasad appeared to have occurred due to injuries

sustained on the head. The post-mortem examination of

the body of Janardan Prasad was conducted at the post-

mortem house, Khatima, District Udham Singh Nagar, on

12.11.2015 at 12:30 p.m. In the said post-mortem report,

a lacerated wound measuring 12 cm × 3 cm was found

extending from the parietal region to the occipital region

over the parietal and occipital bones. The time since death

was stated to be about half to one day. The cause of death

was stated to be ante-mortem head injury leading to shock

and coma.

(v) The injured informant PW 1 Chandan Kumar S/o

Janardan Prasad, also underwent medical examination

and, as per the medical examination report dated

11.11.2015, the following injuries were found on his

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person- (i) Lacerated bleeding wound measuring 4 × 1 cm,

deep, on the occipital region; (ii) Punctured wound

measuring ½ × ½ cm on the cheek pierce over inner

surface of cheek; (iii) Abrasion size 2 × 1 cm over the side

back.

(vi) As per the opinion of the Medical Officer, all the injuries

were simple in nature, caused by hard and blunt object,

and fresh.

(vii) The other injured PW 5 Umesh Kumar, S/o Janardan

Prasad, was also medically examined on 11.11.2015, and

the following injuries were found on his person: (i)

Lacerated wound measuring 3 × 1 cm over left forearm

posterior aspect, bleeding present, margins are irregular;

(ii) Lacerated wound of size 2 × 1 cm on the left forearm, 5

cm below left elbow joint, bleeding present, margins are

irregular.

(viii) In the opinion of the Medical Officer, the injuries were

simple in nature, caused by hard and blunt object and

fresh.

(ix) At the pointing out of the appellant Sudarshan Gupta, the

alleged murder weapon (Kapa), was recovered from his

cowshed in the presence of witnesses, and recovery memo

thereof was prepared on 12.11.2015. The police also took

into possession blood-stained cement pieces from near the

place of occurrence, close to the water tap and possession

memo dated 12.11.2015 was prepared.

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(x) A disclosure statement dated 12.11.2015 was allegedly

made by the appellant Sudarshan Prasad, wherein he

disclosed the incident in which he confessed of having

attacked Janardan Prasad on the head with kapa, due to

which he fell down. During the course of investigation, the

Investigating Officer prepared the Naksha Nazari/site plan

dated 12.11.2015. The appellants were arrested on

12.11.2015 and the arrest memos were prepared.

Thereafter, the case material, i.e. kapa and cement pieces,

was sent to FSL Dehradun for DNA examination.

(xi) After completion of the investigation, the Investigating

Officer submitted charge-sheet dated 04.02.2016 before

the court under Sections 302/323/34/452 of the IPC and

Section 3(2) 5 of the SC/ST Act against the appellants -

Sudarshan Gupta and Vijay Kumar. The case was

registered as Sessions Trial No.40 of 2016, ‘State vs.

Sudarshan Gupta and Another’. Vide order dated

22.04.2016, the learned 3

rd

Additional Sessions Judge,

Rudrapur, District Udham Singh Nagar, framed charges

under Sections 452, 323 read with Section 34 IPC; Section

302 read with Section 34 IPC; and Section 3(2)5 of the

SC/ST Act. The appellants denied the charges and claimed

trial.

Thereafter, trial commenced & statem ents of witnesses

were recorded.

3. In the trial, the prosecution examined 14 witnesses. The

informant, Chandan Kumar, was examined as PW1. He deposed that

on 11.11.2015 at about 9:00 p.m., his father Janardan Prasad objected

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to neighbours Ajay Kumar and Sanjay Kumar bursting crackers on the

rooftop, on which they got angry and started hurling abuses.

Thereafter, both of them called their father the appellants Sudarshan

Gupta and Vijay Kumar to the spot. According to the witness, the

appellant Sudarshan Gupta was carrying kapa, the appellant Vijay

Kumar was armed with an iron rod, and Ajay Kumar and Sanjay

Kumar were holding dandas.

4. PW1 Chandan Kumar further deposed that all the accused

persons assaulted him, his father and his brother with kapa, iron bar

and danda. The appellant Sudarshan Gupta inflicted a blow with the

kapa on the head of his father Janardan Prasad, and thereafter all the

accused persons pushed him from the rooftop. The witness and his

brother ran down to save their father, but the accused persons also

came down, entered their house and assaulted them badly. The

witness sustained injuries on his head, while his brother PW 5 Umesh

Kumar sustained grievous injuries on his hand. He further stated that

a lot of blood came out from the head injury sustained by his father.

5. According to the witness, several villagers gathered at the

place of occurrence and intervened. Thereafter, with the help of the

villagers, the injured Janardan Prasad was taken to the Government

Hospital, Sitarganj, where the doctors declared him dead. The witness

further stated that a report was got written by a neighbour and, after

he signed on it, it was submitted at the Police Station. He identified his

signatures on the report, which was marked as Exhibit A-1.

6. PW1 Chandan Kumar also deposed that he and his family

members belonged to the Scheduled Caste community. He alleged that

the accused persons not only assaulted them but also abused and

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insulted them by hurling caste-related words. He further stated that

the inquest/panchnama of his deceased father was prepared in his

presence along with four other panch witnesses. He identified his

signatures on the panchnama, which was marked as Exhibit A-2.

7. PW1 Chandan Kumar further deposed that later on the

police inspected the place of occurrence and he had shown the place of

incident to the police. The police personnel had recorded his statement

regarding the place of occurrence. He also stated that he had

undergone medical examination for the injuries sustained by him.

8. PW1 Chandan Kumar was cross-examined at length,

wherein he admitted that his father had sustained only one blow of

kapa. The remaining part of his cross-examination is not of much

significance.

9. PW2, Pradeep Kumar was examined as the scribe of the

FIR, and he proved and identified the First Information Report.

10. PW3, Sunil Kumar was examined as a panch witness of

the panchnama/inquest report and he identified his signatures

thereon.

11. PW4, Girvardhari, a neighbour, deposed that on hearing

cries and shouts, he rushed towards the place of occurrence and from

the rooftop of his house he saw the deceased fallen on the ground with

blood oozing from his head, while members of both families were

quarrelling. He stated that he tried to intervene in the matter. He

further deposed that he, along with others, took Janardan Prasad to

the hospital in Sitarganj where the doctor declared him dead. He also

identified and proved his signatures on the possession memo relating

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to the recovery of the kapa, marked as Exhibit A-3, and also proved the

memo of taking possession of the blood-stained cement pieces and

plain cement pieces, which were marked as Exhibits A-4 and A-5

respectively. The witness, however, denied the alleged recovery of the

kapa in his presence. Although he admitted his signatures on the

recovery memo marked as Exhibit A-3 but stated that he was not read

over the contents thereof. Consequently, the witness was declared

hostile later on.

12. PW5, Umesh Kumar, another son of the deceased

Janardan Prasad, was examined and he substantially reiterated the

version of PW1 Chandan Kumar. He was also cross-examined, but

nothing material could be elicited from his testimony so as to discredit

his version.

13. PW6, Constable Yogesh Dutt deposed that on 12.11.2015

he was posted at Police Station Sitarganj and had registered FIR

No.238 of 2015 under Sections 302/323 read with Section 34 IPC, on

which he identified his signatures, which was marked as Exhibit A-6.

14. PW7, Dr. Pradeep Singh, who conducted the post-mortem

examination, deposed that on 12.11.2015 he was posted as Medical

Officer at CHC Khatima. He inter alia stated that during post-mortem

examination, a lacerated wound measuring 12 cm × 3 cm was found

extending from the left side of the head towards the back of the head,

and the left side and the back side bones were found fractured. In his

cross-examination, the witness categorically stated that there was only

one injury found on the body of the deceased and no other injury was

present on any part of the body at the time of examination.

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15. PW8, Dr. Harsh Singh Airee deposed that on 11.11.2015

he was posted at CHC Sitarganj and had medically examined the

injured PW 1 Chandan Kumar and injured PW 5 Umesh Kumar. The

injuries as noted by PW 8 Dr. Harsh Singh Airee have already been

quoted in the preceding paragraphs. The witness proved the medical

examination reports and identified his signatures thereon, which were

marked as Exhibit A-9 in respect of PW 1 Chandan Kumar and Exhibit

A-10 in respect of PW 5 Umesh Kumar.

16. PW9, S.I. Yogesh Dutt deposed that on 11.11.2015 he was

posted at Police Station Sitarganj and he was the scribe of the

panchnama/inquest report. He identified his signatures thereon and

the same was marked as Exhibit A-11. He further deposed that at the

spot he prepared the photo lash, sample seal and related police papers,

and identified his signatures thereon, which were marked as Exhibits

A-12, A-13, A-14 and A-15 respectively.

17. PW10, S.I. Praveen Singh deposed that on 12.11.2015 he

was posted at Police Station Sitarganj and he received the investigation

of FIR No.238 of 2015 under Sections 302/323/34 of IPC. He entered

the case in the case diary and recorded the statements of the informant

and other witnesses. On 12.11.2015, he visited the place of occurrence

and at the pointing out of the informant, prepared the site

plan/naksha nazri, which was in his handwriting. He identified the

same, which was marked as Exhibit A-16. This witness further

deposed that from the place of occurrence, he took into possession

blood-stained cement pieces as well as plain cement pieces, sealed the

same, prepared the sample seal and memos at the spot, and identified

his signatures thereon. He further stated that on 12.11.2015, he

arrested the appellants Vijay Kumar and Sudarshan Gupta and Ajay

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Kumar, and prepared the arrest/information memos, which were

signed by him. He identified the same, which were marked as Exhibits

A-17 to A-19 respectively.

18. PW10 also proved the addition of Section 452 of IPC and

Section 3(2)5 of the SC/ST Act during investigation. He proved General

Diary Entry No.25, which was identified by him and marked as Exhibit

A-20. He further proved GD Entry No. 28 dated 12.11.2015 relating to

the interrogation of the accused persons and stated that the

interrogation memo was in his handwriting and signed by him, which

was marked as Exhibit A-21. He also proved the GD entry of the

inquiry memo, which was marked as Exhibit A-22. The witness further

deposed that appellant Sudarshan Gupta got the murder weapon i.e.

kapa recovered, which was sealed at the spot. He also prepared the site

plan relating to the recovery of the kapa, which was in his handwriting

and signed by him. He identified the same, which was marked as

Exhibit A-23.

19. He further proved GD Entry Report No.31, through which

the case material and memos were deposited at the police station. He

identified the same, which was marked as Exhibit A-24. He also proved

the arrest information memo of accused Sanjay Kumar, which was

marked as Exhibit A-25. During investigation, accused Ajay Kumar

and Sanjay Kumar were found to be juveniles and were accordingly

produced before the Juvenile Justice Board.

20. In the court, sealed bundles containing the case material

were opened. From one sealed bundle, one kapa was taken out, which

the witness identified as the alleged murder weapon recovered at the

pointing out of the appellant Sudarshan Gupta. The kapa was marked

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as Material Exhibit- 1 and the sealed bundle was marked as Material

Exhibit-2. Two other sealed bundles were also opened in the court,

from which two plastic jars were taken out on which the witness stated

that the said jars contained the blood-stained cement pieces and plain

cement pieces collected from the place of occurrence on 12.11.2015

and sealed by him. The plastic jars were marked as Material Exhibit-3

and sealed bundle was marked as Material Exhibit-4 and the other jar

was marked as Material Exhibit-5 and sealed bundle was marked as

Material Exhibit-6.

21. Thereafter, since provisions of the SC/ST Act were added

in the case, therefore, investigation was handed over to the Circle

Officer, Sitarganj.

22. PW11, Pratap Singh Pangti, who was posted as Circle

Officer, Sitarganj, deposed that on 13.11.2015 he took over the

investigation of the case. He stated that he collected the case diary and

other relevant documents, recorded the statements of witnesses, and

thereafter, on the basis of the evidence available on record, submitted

charge-sheet against the appellants Sudarshan Gupta and Vijay

Kumar. The charge- sheet was in his handwriting and was marked as

Exhibit A-26. The witness also proved the forwarding memo/letter for

sending the articles to FSL and the receipt of FSL, which were marked

as Exhibits A-27 and A-28 respectively. He also verified the FSL report,

which was marked as Exhibit A-29.

23. PW12, Radheram deposed that the caste certificate of

deceased Janardan Prasad had been issued on 28.07.2020 by the

Tehsildar Sitarganj. He proved the same on the basis of entries in the

register, and the said caste certificate was marked as Exhibit A-30.

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24. PW13 Smt. Shashi Prabha Tomar, Deputy Director, FSL

Dehradun, deposed that upon examination of the kapa and blood-

stained cement pieces, blood was present, which was marked as

Material Exhibits 1 & 2. She further stated that human blood was

found on the kapa, whereas the blood found on the cement pieces had

disintegrated.

25. PW14, S.I. Dineshna th Mahant deposed that blood-stained

and plain cement pieces were collected from the place of occurrence,

placed in separate jars, sealed and memos were prepared, in which he

identified his signatures. He further deposed that the alleged murder

weapon was recovered at the instance of the accused and he identified

his signatures on the recovery memo of the kapa.

26. Thereafter, the statements of the appellant Vijay Kumar

under Section 313 Cr.P.C. were recorded. He largely denied all material

put up against him and contended that he is innocent and has been

falsely implicated. He further stated that he was not present at his

house on the date of the incident.

27. Similarly, the appellant Sudarshan Gupta denied the

allegations and evidence led against him and claimed innocence. He

stated that on the date of the incident his leg was fractured. According

to him, the deceased had earlier hit his leg with a motorcycle and,

when he demanded money for his treatment, the deceased developed

animosity against him and was falsely implicated in the present case.

28. In defence, the appellants examined DW1 Chandrapal,

who deposed that on the day of Deepawali, i.e., 11.11.2015, the sons of

Janardan Prasad, namely PW 5 Umesh Kumar and PW 1 Chandan

Kumar, were consuming liquor on the rooftop and, during the course of

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drinking, a quarrel ensued between them. According to the witness,

when Janardan Prasad intervened, both of them were in an intoxicated

condition. He further stated that PW 1 Chandan Kumar was carrying a

kapa and during the altercation, blows were exchanged amongst

themselves, as a result of which Janardan Prasad lost balance and fell

from the rooftop onto the water tap below.

29. DW1, Chandrapal further deposed that PW 1 Chandan

Kumar had earlier hit the leg of the appellant Sudarshan Gupta with

his motorcycle, and when the appellant Sudarshan Gupta demanded

money for treatment expenses, PW 5 Umesh Kumar and PW 1

Chandan Kumar falsely implicated the appellants Sudarshan Gupta

and Vijay Kumar in the present case. The witness further stated that

the appellant Sudarshan Gupta used to work as a chowkidar at the

Begul Dam, where PW 1 Chandan Kumar had allegedly stolen fish.

According to the witness, the appellant Sudarshan Gupta had caught

PW 1 Chandan Kumar and brought him before one Prem Prakash, who

thereafter had beaten and punished PW 1 Chandan Kumar, due to

which they had enmity against the accused persons.

30. Thereafter, the learned trial court heard the learned

counsel for the parties and, vide the impugned judgment and order

dated 07.08.2023, convicted the appellants under Sections 302/34,

323/34 & 452 of IPC and sentenced them accordingly.

31. Heard Mr. R.S. Sammal, learned counsel for the

appellants, as well as the learned State Counsel, and perused the

entire record.

32. Learned counsel for the appellants would submit that the

present case is one where the deceased sustained only a single injury

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that too a lacerated wound & not incised wound, which clearly

demonstrates that there was no repeated assault or repeated attempt

to cause the death of the deceased. It was further submitted that the

injured witnesses sustained only simple injuries.

33. Learned counsel also argued that there were no contusions

or multiple lacerated injuries found on the injured persons and,

therefore, the medical evidence is at variance with the prosecution

case.

34. The learned counsel for the appellants would further

submit that the prosecution case is absolutely false and fabricated and

the appellants are innocent. According to the defence, the evidence on

record clearly suggests that the deceased, Janardan Prasad, had

accidentally fallen from the rooftop and sustained a fatal head injury

from the tap below.

35. It was further argued that PW4, Girvaradhari, who was the

witness of the recovery of the alleged murder weapon, did not support

the prosecution case during trial. Consequently, the alleged recovery

itself becomes doubtful and unreliable. Pointing out to the deposition

of PW4, learned counsel for the appellants would submit that the

witness was declared hostile after about one and a half year from his

earlier deposition, thereby casting serious doubts on the prosecution

case.

36. Learned counsel for the appellants would further submit

that apart from the aforesaid doubtful recovery, there is no reliable

evidence connecting the appellants with the alleged offence. It was also

submitted that the appellants have already undergone long

incarceration of more than four years.

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37. Learned counsel for the appellants would further submit

that there are material inconsistencies between the version narrated in

the FIR and the testimonies of PW1 Chandan Kumar & PW5 Umesh

Kumar.

38. An alternate argument was advanced by the learned

counsel for the appellants by relying upon a judgment of the Hon’ble

Supreme Court in the case of “Anbazhagan v. State of T.N.” , (2024) 20

SCC 500 and particularly referred to paragraph nos.24, 27, 28, 34 and

66.13 thereof, and it is argued that the present case is one of a single

blow resulting in death and, therefore, the conviction would not fall

under Section 302 IPC. At best, according to the learned counsel for

the appellants, the offence would fall within the ambit of Section 304

Part II IPC. Paragraphs 24, 27, 28, 34 and 66.13 thereof is being

extracted hereunder for ready reference:-

“24. Bearing in mind the test suggested in the aforesaid decision and

also bearing in mind that our legislature has used two different

terminologies “intent” and “knowledge” and separate punishments are

provided for an act committed with an intent to cause bodily injury

which is likely to cause death and for an act committed with a

knowledge that his act is likely to cause death without intent to cause

such bodily injury as is likely to cause death, it would be proper to hold

that “intent” and “knowledge” cannot be equated with each other. They

connote different things. Sometimes, if the consequence is so apparent, it

may happen that from the knowledge, intent may be presumed. But it

will not mean that “intent” and “knowledge” are the same. “Knowledge”

will be only one of the circumstances to be taken into consideration

while determining or inferring the requisite intent.

27. Thus, while defining the offence of culpable homicide and murder,

the framers of IPC laid down that the requisite intention or knowledge

must be imputed to the accused when he committed the act which

caused the death in order to hold him guilty for the offence of culpable

homicide or murder as the case may be. The framers of IPC designedly

used the two words “intention” and “knowledge”, and it must be taken

that the framers intended to draw a distinction between these two

expressions. The knowledge of the consequences which may result in

the doing of an act is not the same thing as the intention that such

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consequences should ensue. Except in cases where mens rea is not

required in order to prove that a person had certain knowledge, he “must

have been aware that certain specified harmful consequences would or

could follow.” (Russell on Crime, Twelfth Edn., Vol. 1 at p. 40.)

28.

This awareness is termed as knowledge. But the knowledg e that

specified consequences would result or could result by doing an act is

not the same thing as the intention that such consequences should

ensue. If an act is done by a man with the knowledge that certain

consequences may follow or will follow, it does not necessarily mean

that he intended such consequences and acted with such intention.

Intention requires something more than a mere foresight of the

consequences. It requires a purposeful doing of a thing to achieve a

particular end. This we may make it clear by referring to two passages

from leading textbooks on the subject.

34.

Sections 299 and 300IPC deal with the definition 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 a reading of this provision, the

former part of it emphasises on the expression “intention” while the

latter upon “knowledge”. Both these are positive mental attitudes,

however, of different degrees. The mental element in “culpable

homicide”, that is, the mental attitude towards the consequences of

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

any of the three stated manners noted above, it would be “culpable

homicide”. Section 300IPC, however, deals with “murder”, although

there is no clear definition of “murder” in Section 300IPC. As has been

repeatedly held by this Court, “culpable homicide” is the genus and

“murder” is its species and all “murders” are “culpable homicides” but

all “culpable homicides” are not “murders”. (See Rampal Singh v. State

of U.P. [Rampal Singh v. State of U.P., (2012) 8 SCC 289 : (2012) 3 SCC

(Cri) 860] )

66.13. In determining the question, whether an accused had guilty

intention or guilty knowledge in a case where only a single injury is

inflicted by him and that injury is sufficient in the ordinary course of

nature to cause death, the fact that the act is done without

premeditation in a sudden fight or quarrel, or that the circumstances

justify that the injury was accidental or unintentional, or that he only

intended a simple injury, would lead to the inference of guilty

knowledge, and the offence would be one under Section 304 Part II IPC.”

39. Thus, on the basis of the aforesaid, the learned counsel for

the appellants would submit that there is single injury which would

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lead to the inference of guilty knowledge and that the prosecution has

not been able to prove its case beyond reasonable doubt and thus

contended that the impugned judgment and order cannot be sustained

and deserves to be set aside, and in the alternative submitted that the

conviction be altered from one under Section 302/34 to Section 304

Part II /34 of IPC in the peculiar facts and circumstances of the case.

40. Per contra, learned counsel for the State would submit that

in the medical examination report of PW 1 Chandan Kumar, there is

injury on the occipital region of the said injured, there is punctured

wound on cheek measuring 1/1cm x 1/1 cm. The testimony of the

injured witnesses cannot be ignored. The statements of both the

injured persons are consistent with the prosecution case. The presence

of the accused persons is established at the place of occurrence.

He would also submit that there is not only one blow to the

deceased, but he was also thrown down from the rooftop. He would

further submit that the testimony of the hostile witness PW4 is to be

seen till it corroborates the prosecution case.

He would also submit that the intention to kill was clearly

present. However, in reply to the alternative arguments of the learned

counsel for the appellants, he could not deny that the act was

committed in a sudden fight without having taken undue advantage by

the appellants as per Exception 4 to Section 300 of IPC, and he also

could not deny that the from the record that there is nothing to suggest

that there was any enmity to cause such a grave offence. He would

further submit that the FIR is prompt.

41. Having heard the rival submissions advanced by the

learned counsel for the parties and upon perusal of the record, it is

evident that the injured eyewitnesses have clearly deposed regarding

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the manner in which the appellant Sudarshan Gupta, inflicted the fatal

blow upon the deceased, Janardan Prasad. The testimonies of these

witnesses, who are not only eyewitnesses to the occurrence but are

themselves injured witnesses, stand duly corroborated by the medical

evidence available on record. The injuries sustained by PW1 Chandan

Kumar and PW5 Umesh Kumar are fully supported by their respective

medical examination reports. Thus, the prosecution has successfully

established the commission of the offence insofar as the fatal blow

inflicted by the appellant Sudarshan Gupta is concerned. The

prosecution has also established the injuries caused by the appellant

Vijay Kumar.

42. However, the only aspect requiring consideration is

whether the alternative plea raised on behalf of the appellants, so far

as the single blow upon the deceased Janardan Prasad would not

amount to murder punishable under Section 302 IPC, but would

instead fall within the ambit of Section 304 Part II IPC, deserves

acceptance.

43. A perusal of the record as well as the medical evidence

reveals that PW-7, the doctor who conducted the post-mortem

examination, has categorically stated that there was only one injury on

the head of the deceased and no other external injury was found on the

body of Janardan Prasad at the time of post-mortem examination.

44. The law on this aspect has been elaborately considered by

the Hon’ble Supreme Court in the judgment Anbazhagan (supra),

wherein the distinction between an offence punishable under Section

302 IPC and one falling under Section 304 Part II IPC has been clearly

19

explained. The relevant paragraphs thereof have already been extracted

hereinabove.

45. From the evidence on record, it is clear that on the night of

11.11.2015, there appears to be a sudden fight, which led to the

aforesaid blow to be inflicted on the head of the deceased Janardan

Prasad by the appellant Sudarshan Gupta. It is apparent that though

the appellant had the knowledge that such a blow could prove fatal,

the intention to cause death cannot be conclusively gathered from the

facts and circumstances of the case.

46. Moreover, the case appears to fall within Exception 4 to

Section 300 IPC, as the occurrence arose out of a sudden fight and

there is nothing on record to indicate that the appellant acted in a

cruel or unusual manner or took undue advantage.

47. In view of the aforesaid discussion, this Court is of the

view that the conviction and sentence of the appellants under Sections

452, 323 read with 34 IPC does not warrant any interference and

accordingly, the conviction and sentence of the appellants under

Sections 452, 323 read with 34 IPC is upheld.

48. In so far as the conviction and sentence under Section 302

read with 34 IPC is concerned, this conviction deserves to be altered to

304 Part II IPC. According to the prosecution, the appellant Sudarshan

Gupta had inflicted the fatal blow with the Kapa, therefore, the

appellant Sudarshan Gupta is liable to be convicted under Section 304

Part II IPC and the appellant Vijay Kumar is liable to be convicted

under Section 304 Part II read with 34 IPC.

20

49. The appellant Sudarshan Gupta is convicted under Section

304 Part II IPC. The appellant Vijay Kumar is convicted under Section

304 Part II read with 34 IPC.

50. Having considered the nature of offence, its origin and

other attending factors, we are of the view that the sentence of 7 years

rigorous imprisonment under Section 304 Part II IPC would serve the

interest of justice. Consequently, the appellant Sudarshan Gupta is

sentenced to rigorous imprisonment for a period of 7 years under

Section 304 Part II IPC. The appellant Vijay Kumar is sentenced to

rigorous imprisonment for a period of 7 years under Section 304 Part II

read with 34 IPC.

51. The appeal is partly allowed.

52. The impugned judgment and order dated 07.08.2023 is

modified to the extent as aforesaid.

53. It has been brought on record that the appellants have

already undergone approximately four years of incarceration. They

shall serve the remaining part of the modified sentence in accordance

with law.

54. Let a copy of this judgment along with the original records

be sent to the trial court concerned.

(Siddhartha Sah, J.) (Ravindra Maithani, J.)

03.06.2026 03.06.202 6

Akash