Allahabad High Court
Shyam Naresh And Another vs State Of U.P. on 7 July, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:106362-DB Court No. - 44 Case :- CRIMINAL APPEAL No. - 3237 of 2015 Appellant :- Shyam Naresh And Another Respondent :- State of U.P. Counsel for Appellant :- Archana Singh,Dharmendra Kumar Pandey,P.C. Mishra,Rajesh Kumar Counsel for Respondent :- G.A. Hon'ble Saumitra Dayal Singh,J.
Hon'ble Madan Pal Singh,J.
1. Heard Shri Ashok Kumar Tripathi, learned counsel for the appellants and Shri R.K. Srivastava, learned A.G.A. for the State.
2. Learned counsel for the appellant has first pressed 3rd bail application of appellant no. 2, Ram Naresh. However, upon brief hearing, it transpires that the appeal itself may be concluded. Accordingly, with the consent of the parties, the appeal is being heard.
3. Present appeal arises from the judgment and order dated 28.07.2015 passed by Shri Shiv Singh Yadav, learned Special Judge (Essential Commodities) Act, Farrukhabad, in Sessions Trial No. 205 of 1995 (State Vs. Shyam Naresh and Ram Naresh), whereby the learned court below has convicted the appellant Shyam Naresh for offence under Section 302 read with Section 34 IPC. Also, it has convicted the appellant-Ram Naresh under Section 302 IPC. The appellant Shyam Naresh has been sentenced for life imprisonment whereas the appellant Ram Naresh has been sentenced for life imprisonment and fined Rs. 20,000/- with default sentence of one month simple imprisonment.
4. The prosecution story emerged on the strength of the Written Report dated 03.11.1994 submitted by Santosh Kumar (P.W.-1 at the trial) narrating that on 03.11.1994 at about 5:00 p.m. during Diwali festivities, his cousin brothers Shyam Naresh and Ram Naresh were bursting fire crackers. It had caused fire to the house of the first informant. That was objected to by Santosh Kumar (P.W.-1) and Awadhesh (deceased). On that objection raised, first verbal quarrel was witnessed between the parties. Later, the accused Shyam Naresh exhorted his brother Ram Naresh to kill Awadhesh as he thinks too much of himself. At that moment, Ram Naresh shot Awadhesh with a country made pistol, from close quarters. Awadhesh died on the spot. The occurrence was witnessed by Santosh Kumar (P.W.-1) as also Radha Kishan, Ram Sanehi and Satish Chandra (not examined at the trial). The Written Report is Ex.Ka-1 at the trial.
5. Arising from that Written Report, FIR was registered in this case on 03.11.1994 at 10:10 pm at P.S. Merapur, Farrukhabad situated at about 8 km from the place of occurrence. The FIR is Ex.Ka-3 at the trial. On 03.11.1994 itself, the Investigation Officer, Inspector, Sagheer Ahmad (P.W.-5 at the trial) recovered bloodstained and plain earth from the place of occurrence. That recovery memo is Ex.Ka-5 at the trial. Also, on 03.11.1994, the said Investigation Officer, Inspector, Sagheer Ahmad (P.W.-5) recovered a sample of the ash of the burnt thatched roof, from the house of the informant side. That Recovery Memo is Ex.Ka-6 at the trial.
6. Also, on 03.11.1994 at about 10:10 pm, inquest proceedings were conducted by S.I. Premchand Mishra. It is Ex.Ka-7 at the trial. The next day, Dr. Yogendra Pratap Singh (P.W.-3 at the trial) conducted the autopsy examination of the deceased at 3:30 pm. In that, he opined that death may have been caused about a day earlier, due to shock and hemorrhage caused by ante-mortem injuries. He found the following ante-mortem injuries were suffered by the deceased :
"Multiple Gun shot wound of Entry over neck, chest, abdomen, left shoulder, left upper arm, left fore arm, right lower eye lid, Margins inverted lacerated Echymosed size 1.5 cm x 0.3 cm to 0.3 cm x 0.2 cm x skin/muscle/cavity deep."
7. During the autopsy examination, one pellet was recovered from right lower eyelid; three pellets were recovered from left side of neck; two pellets were recovered from chest wall and three pellets were recovered from left shoulder and arm muscles while two pellets were recovered from heart and two pellets were recovered from right and left side of chest cavity and two pellets were recovered from abdominal cavity of the deceased (total 15 pellets). Those were sealed and handed over to the Investigation Officer. The postmortem report is Ex.Ka-2 at the trial.
8. Upon completion of investigation, charge sheet was submitted by Investigation Officer, Inspector, Sagheer Ahmad (P.W.-5) on 26.11.1994. It is Ex.Ka-13 at the trial. Upon the case being committed for trial to the Court of Sessions, following charges came to be framed against the appellants :
Against Shyam Naresh :
"That you on 3.11.1994 at about 5.15 P.Μ. infront of the door of complainant Santosh Kumar in village Dharra Shadi Nagar under the circle of police station Merapur, district Farrukhabad shared a common intention with co-accused Ram Naresh, to wit, in committing murder of Avdhesh and that in furtherance of the common intention of both, co-accused Ram Naresh did commit murder by intentionally or knowingly causing the death of said Avdhesh by making a fire with country made pistol and you thereby committed an offence punishable U/S 302 read with section 34 I.P.C. and within the cognizance of this court of Sessions."
Against Ram Naresh :
"That you on 3.11.1994 at about 5.15 Ρ.Μ. infront of the door of the complainant Santosh Kumar in village Dharra Shadi Nagar under the circle of Police station Merapur, district Farrukhabad did commit murder by intentionally or knowingly causing the death of Avdhesh by making fire with country made pistol and thereby committed an offence punishable U/S 302 I.P.C. and within the cognizance of this court of Sessions."
9. At the trial, besides the above documentary evidence, the prosecution proved its case on the strength of five prosecution witnesses. The first informant Santosh Kumar (P.W.-1) proved that the two accused Shyam Naresh and Ram Naresh were sons of his uncle ('Chacha'). Eight months earlier, they had caused fire to his house while bursting fire crackers at Diwali festival. That was objected by him as he blamed the accused of having caused the fire to his house. That led to a serious verbal altercation between the parties. At that stage, Ram Naresh exhorted Shyam Naresh to kill Awadhesh as he thinks too much of himself, thereafter, the accused climbed on the terrace of Siya Ram at which point Shyam Naresh further exhorted Ram Naresh that Awadhesh thinks too much of himself. At that stage, Ram Naresh drew his country made pistol and shot at the deceased who was standing on a brick road/paved road. The deceased was hit and he died on the spot. He proved that the occurrence was witnessed by his wife Archana, Satish and Radha Kishan. He further proved that he lodged the FIR, against the Written Report Ex.Ka-1.
10. Next, Archana Devi wife of the Santosh Kumar was examined as P.W.-2. She also narrated that occurrence took place at about 5 pm when accused Shyam Naresh and Ram Naresh were bursting fire crackers on a platform/'Chabutra' in front of their house. That caused fire to the thatched roof of her house. On that, her husband and brother-in-law (Awadhesh) questioned the accused persons why they had caused fire to their house. That resulted in a verbal altercation between the parties wherein both sides hurled abuses at the other. Awadhesh continued to respond to the accused. At that stage, the accused climbed up on the terrace of Siya Ram. However, the verbal altercation involving hurling abuses continued between the parties. At that stage, Shyam Naresh exhorted Ram Naresh to kill Awadhesh as he thinks too much of himself. At such exhortation offered by Shyam Naresh, Ram Naresh shot at the deceased Awadhesh who was standing on the brick road/paved road. On being hit, Awadhesh died on the spot.
11. No other fact witness was examined by the prosecution.
12. Next, Dr. Yogendra Pratap Singh was examined as P.W.-3 at the trial. He proved the autopsy report, the injuries noted by him and the pellets recovered by him as also the cause of death.
13. Thereafter, Head Constable Netrapal Singh was examined as P.W.-4 at the trial. He proved the registration of the FIR. Next, the Investigation Officer Sagheer Ahmad was examined as P.W.-5. He proved the recoveries as also the investigation.
14. Thereafter, the Court examined Constable Arvind Kumar as C.W.-1. He proved death of the Sub Inspector Sagheer Ahmad who died during trial.
15. Thereafter, statements of the accused persons were recorded under Section 313 Cr.P.C.
16. In such facts, learned counsel for the appellant would submit that the appellants have been falsely implicated. The occurrence was caused wholly otherwise. There is no recovery of fire arm. The parties are closely related. All had houses in close vicinity, in the same locality. Owing to other disputes, the appellants have been implicated, excessively, by wholly interested witnesses. There is no independent witness.
17. On one hand the prosecution has not relied on any independent witness, as the witness of fact named by the first informant Santosh Kumar (P.W.-1) namely Radha Kishan, Ram Sanehi, Satish Chandra were not examined at the trial, yet, Archana Devi, wife of Santosh Kumar (P.W.-1) was not even named by him in the FIR as a person who had seen the occurrence. To the extent prosecution has introduced her as an eye witness, it amounts to material alteration of the prosecution story to the extent the prosecution has introduced a new witness who was not described to be present at the time of occurrence. She being the wife of the first informant Santosh Kumar (P.W.-1), her presence may never have been missed in the FIR if she was actually present at the time of occurrence. In the absence of recovery of any fire arm, no charge was framed for any offence under the Arms Act.
18. On the other hand, learned A.G.A. has opposed the appeal. He would submit that there is no reason to doubt the presence of Santosh Kumar (P.W.-1). Also, there is no reason to doubt the place of occurrence being just outside the house of the first informant and the deceased. The prosecution story has been fully proved on the strength of credible evidence led by Santosh Kumar (P.W.-1). It is wholly corroborated by the prompt FIR lodged as also the medical opinion of Dr. Yogendra Pratap Singh (P.W.-3).
19. Having heard learned counsel for parties and having perused the record, in the first place, we find that there is no rule of evidence which may allow us to discard the testimony of a close relative of the victim/deceased. The law is far too well settled to require any discussion in this appeal. To the extent, there is no reason to doubt that the occurrence took place just outside the house of the parties, they being closely related and living in the same locality and the occurrence of being caused during Diwali festivities, the presence of Santosh Kumar (P.W.-1) is wholly natural.
20. Second, the FIR was lodged within few hours of the occurrence. It is wholly prompt. Registration of the FIR at about 10.10 p.m. is wholly corroborated and consistent to the recoveries of blood stained earth as also a sample of ashes of burnt thatched roof that was made on 03.11.1994 itself and the Inquest/'Panchayatnama' conducted on 03.11.1994. No doubt has been raised during the cross-examination of the prosecution witnesses to doubt those facts.
21. Third, we also find, the occurrence is corroborated with the time of death as opined by Dr. Yogendra Pratap Singh (P.W.-3). No doubt emerged during his cross-examination as to the same. Therefore, there is neither any doubt as to the place of the occurrence or as to the time of occurrence.
22. Fourth, it is not the law that a larger number of witnesses would lend credibility to the prosecution story as may lead to or sustain conviction. It is the quality and weight of evidence that matters. Here, Santosh Kumar (P.W.-1) has proved the occurrence, fully.
23. Fifth, the prosecution has itself proved that the occurrence was preceded by continued verbal altercation between the parties wherein both sides had hurled abuses on the other, over a long duration of time. Further, the prosecution proved that that verbal altercation began from an accidental occurrence wherein the first informant side accused the appellant of having caused fire inside the house of the first informant while bursting fire crackers on a platform/'Chabutra', outside their own house.
24. Bursting of fire crackers at Diwali is wholly natural, normal and commonly observed custom, arguably a necessary part of Diwali festivities. The prosecution also proved that the fire had been caused not to the whole house but to a thatched roof inside the house of the first informant. A thatched roof is inflammable by virtue of material used therein. Considering the above facts proven by the prosecution, and in the absence of any fact proven that the appellants had deliberately thrown any lighted fire cracker on the thatched roof of the first informant or any fact of like nature to cause a fire, the occurrence as disclosed was wholly natural.
25. Sixth, the prosecution proved that resulting from that accidental fire, the first informant side had not only objected but also hurled verbal abuses which was responded to by the appellants.
26. Seventh, the prosecution further proved that the appellants walked away from the place and thus were not bursting any further fire crackers but had climbed on to the terrace of Siya Ram a common uncle of both parties.
27. Eight, the prosecution proved that hurling of verbal abuses by both sides continued even then.
28. Therefore, the prosecution story itself clearly narrates that after the initial occurrence of accidental fire had been caused, the parties first entered into a verbal duel. It escalated to hurling of abuses by both sides on the other. The prosecution proved that the appellant side walked away from that and climbed on to the roof of their uncle Siya Ram. Thereby, it has clearly indicated that the appellant side may have been seeking to de-escalate the situation and in any case was not acting with premeditation or intention to kill. However, the first informant side remained engaged in the verbal assault. In that circumstance, a single gunshot is described to have been fired by the appellant Ram Naresh (from the terrace of Siya Ram), at the deceased who was standing below on a brick road.
29. That nature of occurrence may not travel beyond the ingredients of the offence under Section 304 Part-II IPC as it may never be proved or credibly established that there was either any pre-meditation to cause such an occurrence or there was any intention or motive to kill. Purely on account of a sudden quarrel that had emerged between the parties and that kept escalating on continued participation and therefore contribution by the first informant side and which escalation was maintained even after the appellant side had moved away and climbed on to the roof of Siya Ram, the ingredients of the offence alleged under Section 300 read with Section 302 IPC are not made out.
30. In Virsa Singh Vs. State of Punjab, 1958 SCC OnLine SC 37, the three judge bench of the Supreme Court, speaking through Justice Vivian Bose laid down the fundamental governing principle to differentiate between Section 302 IPC and Section 304 IPC. The learned jurist observed as below:
"13. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been inflicted. It is, of course, not necessary to enquire into every last detail as, for instance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple and based on commonsense : the kind of enquiry that "twelve good men and true" could readily appreciate and understand.
14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly".
15. First, it must establish, quite objectively, that a bodily injury is present.
16. Secondly, the nature of the injury must be proved; These are purely objective investigations.
17. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
18. Once these three elements are proved to be present, the enquiry proceeds further and.
19. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
20. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Section 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or otherwise unintentional.
21. We were referred to a decision of Lord Goddard in R. v. Steane (1947) 1 All ER 813, 816 where the learned Chief Justice says that where a particular intent must be laid and charged, that particular intent must be proved. Of course it must, and of course it must be proved by the prosecution. The only question here is, what is the extent and nature of the intent that Section 300 "thirdly" requires, and how is it to be proved?
22. The learned counsel for the appellant next relied on a passage where the learned Chief Justice says that: "if, on the totality of the evidence, there is room for more than one view as to the intent of the prisoner, the jury should be directed that it is for the prosecution to prove the intent to the jury's satisfaction, and if, on a review of the whole evidence, they either think that the intent did not exist or they are left in doubt as to the intent, the prisoner is entitled to be acquitted". We agree that that is also the law in India. But so is this. We quote a few sentences earlier from the same learned judgment: "No doubt, if the prosecution prove an act the natural consequences of which would be a certain result and no evidence or explanation is given, then a jury may, on a proper direction, find that the prisoner is guilty of doing the act with the intent alleged." That is exactly the position here. No evidence or explanation is given about why the appellant thrust a spear into the abdomen of the deceased with such force that it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places. In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did. Once that intent is established (and no other conclusion is reasonably possible in this case, and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury."
(emphasis supplied)
31. That governing principle has been consistently applied in our jurisprudence in State of A.P. v. Thummala Anjaneyulu, (2010) 14 SCC 621. The intention to cause the very injury that led to the death could not be established. Consequently, the charge of murder was found not proven. Only culpable homicide not amounting to murder resulting in conviction under Section 304 IPC was proved. In that, it was observed as below:
"11. The learned counsel for the accused has, however, submitted that even assuming for a moment that the prosecution story was correct and the accused liable for conviction, it was not still a case of murder as there was no evidence to show that the accused had intended to cause the very injury which had been caused and had led to the death of the deceased and he was, therefore, liable only for a charge of manslaughter and not murder. The facts of the case undoubtedly support the argument of the learned counsel. As per the prosecution story, the deceased and the accused and the witnesses had gathered outside the house of PW 6 to organise a panchayat to settle a dispute between Kistaiah and Ramulu, who were not, in any manner, connected with either party and it was at that stage that the accused was apparently provoked by the remarks of the deceased that he should not cast an evil eye on PW 3 and Manemma on which he had suddenly taken out a knife which he was carrying and caused one injury in the chest.
12. We are of the opinion that there was no intention on the part of the accused to cause the very injury which he caused which ultimately led to the death of the deceased. The accused would thus be liable for conviction under Section 304 Part I IPC and not under Section 302 thereof. We, accordingly, allow this appeal, set aside the acquittal recorded by the High Court and convict the accused for an offence punishable under Section 304 Part I IPC and sentence him to 7 years' RI. The appeal is allowed to the above extent."
(emphasis supplied)
32. Again in Sankath Prasad v. State of U.P., (2020) 12 SCC 564, occasioned by the fact that the incident was caused at the spur of the moment and it was a fallout of an alteration, the charge under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, it was observed as below :
"5. The facts, as they have emerged from the record, indicate that the incident had taken place on the spur of the moment and was a fallout of an altercation over the excavation of a mound by the brother of the appellant. This was objected to by the complainant Gaya Prasad (PW 1). The altercation resulted in the appellant going into his house and bringing out a country-made pistol. The son of the complainant -- deceased Uma Shanker intervened in the course of the altercation and was fired at, resulting in a single firearm injury leading to his death.
6. Having regard to the circumstances of the case, we are of the view that the conviction under Section 302 IPC should be converted to one under Section 304 Part I. We accordingly hold the appellant guilty of an offence under Section 304 Part I IPC and sentence him to imprisonment for a term of ten years."
(emphasis supplied)
33. Again in Shaikh Matin v. State of Maharashtra and another, (2020) 20 SCC 402, single blow suffered by the deceased caused by heavy wooden lock, the charge of murder under Section 302 IPC was converted to that under Section 304 Part I IPC. In that, Supreme Court observed as below :
"5. Taking into account the fact that the appellant-accused had delivered only a single blow but on a vital part of the body of the deceased i.e. head and that despite opportunities he had refrained/restrained himself from inflicting any further injury on the deceased we are of the view that the present is not a case under Section 302 IPC. Rather, according to us, it would be more appropriate to hold that the appellant accused is liable for the offence under Section 304 Part I IPC. We, therefore, convert the conviction of the appellant-accused to one under Section 304 Part I IPC. As the appellant-accused admittedly has been in custody for nearly nine years now we are of the view that the ends of justice would be met if the sentence is converted to the period of custody already suffered."
34. In a recent decision of the Supreme Court in Anbazhagan Vs. The State, Represented by the Inspector of Police, 2023 SCC OnLine SC 857, the Supreme Court has again made analysis and the difference between murder and culpable homicide not amounting to murder. The Supreme Court summarized the principle as below:
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:--
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'.
(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) 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 of the IPC."
35. In Jhaptu Ram versus State of Himachal Pradesh (2014) 12 SCC 410, after consideration of the facts has proven. The Supreme Court observed as below:
"7. We have considered the matter, undoubtedly, it was a case wherein the deceased and his mother Bhagti Devi (PW.1) had been called to intervene and pacify the matter. It is also clear from the evidence on record that an altercation took place between the appellant and the deceased. There is no iota of evidence to show that there was any prior intention of the appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned counsel for the appellant. 8. In these facts and circumstances of the case, we are of the considered view that the appeal deserves to be allowed partly. Hence, the conviction of the appellant is set aside under Section 302 IPC and is convicted under Section 304 Part-I IPC and award sentence of ten years. However, the amount of fine remains intact. With these observations, the appeal stands disposed of."
36. In the above facts, we find, though the occurrence may qualify under Clause 'Thirdly' of Section 300 I.P.C., it is also be covered under Exception 4. Yet, we are not in agreement that the case may fall under Section 304 Part I I.P.C. Rather, it falls under Section 304 Part II IPC. In that regard, we find, against minimum punishment of ten years, the appellants were confined for 11 years 6 months 7 days (actual).
37. In view of the above discussion, the appeal is partly allowed. The conviction of the appellants is modified to under Section 304 Part-II IPC and the sentence awarded to them is modified to the sentence undergone by them. The appellant No. 1 Shyam Naresh is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. The appellant No. 2-Ram Naresh is in jail. He may be released forthwith, subject to him not wanted in any other case. Both the appellants are directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today. However, the appellants shall pay fine Rs. 50,000/- each within a period of two months. In default of payment of fine, the appellants shall undergo imprisonment of six months.
38. Copy of this judgment alongwith original record of Court below be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court at the earliest. Office is directed to keep the compliance report on record.
39. In view of the order passed today, Criminal Misc. Bail Application No. 05 of 2021 is dismissed as infructuous.
Order Date :- 7.7.2025
SA/faraz/prakhar
(Madan Pal Singh, J.) (S.D. Singh, J.)