Mahendra Yadav And Another vs State Of U.P.
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Allahabad High Court

Mahendra Yadav And Another vs State Of U.P. on 29 August, 2025

Author: Siddharth

Bench: Siddharth

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Reserved On:-30.05.2025
 
Delivered On:-29.08.2025
 
HIGH COURT OF JUDICATURE AT ALLAHABAD
 
CRIMINAL APPEAL No. - 6529 of 2011
 

 

 

 
With
 
CRIMINAL APPEAL No. - 6503 of 2011
 

 

 

 
HON'BLE SIDDHARTH, J.

HON'BLE RAM MANOHAR NARAYAN MISHRA, J.

(Delivered by Hon'ble Siddharth,J.)

1. Heard Sri I.K. Chaturvedi, learned Senior Counsel assisted by Sri Anuj Srivastava, learned counselfor the appellant; Sri G.N. Kanaujia, learned A.G.A.-I for the State in Criminal Appeal No.6529/2011 and perused the material on record.

2. Heard Ms. Katyayini and Sri Upendra Kumar Tiwari, Advocates holding brief of Sri Bishram Tiwari, learned counsels for the appellants; Sri G.N. Kanaujia, learned A.G.A-I for the State in Criminal Appeal No. 6503/2011 and perused the material on record.

3. The above noted criminal appeals have been preferred against the judgment and order dated 09.11.2011 passed by Addl. District and Sessions Judge in S.T. No. 94/2003 (State Versus Mahendra Yadav and others) convicting and sentencing the appellants under sections 147 I.P.C. to undergo 6 months of R.I; under section 148 I.P.C. to under go 2 years of R.I. with fine of Rs. 500 to each; under section 302/149 I.P.C. to undergo life imprisonment with fine of Rs. 5000 to each; under section 307/149 I.P.C. to undergo 7 years of R.I. with fine of Rs. 1000/- each and under section 506 I.P.C. to under go 6 months of R.I. and in case default in payment of fine, to further undergo 3 months of additional R.I.

4. The prosecution case is that on 12.09.1998, manure kept in the field of informant was dug by Sursati wife of Babu Lal Yadav and she threw it in her field. Thereafter, she came to the house of the informant and started abusing the informant saying that he is dumping garbage over her field. Due to this incident at about 08:15 P.M., in the night, Mahendra son of Chokat, Babu Lal son of Chokat, Munni Lal son of Chokat, Awadesh son of Babu Lal and Kamlesh @ Bablu son of Babu Lal, in furtherance of common object came and started abusing the informant and his family members. Babu Lal armed with his licenced gun, Mahendra and Bablu @ Kamlesh armed with country made pistols and other persons armed with lathi and danda started beating them. Babu Lal and Mahendra fired from their country made pistols and the bullets hit his father, Hari Narayan Yadav, who died on the spot. Thereafter, Mahendra, took the licenced gun of the Babu Lal. Mahendra and Bablu @ Kamlesh, also fired from their country made pistols and the pellets hit on the head of Surendra Yadav, brother of informant, Suresh Yadav. On their raising alarm and hearing the sound of firing, Surendra Nath Pandey, son of Kedar Nath Pandey and Kapil Dev Singh residents of Nandana; Rama Narayan Yadav and may other persons came on the spot and the accused after threatening them and making firing in the air ran away.

5. The First Information Report was lodged on the same day by the informant, Surendra Yadav son of Hari Narayan Yadav. The Police registered Case Crime No. 298/98, under Section 147, 148, 149, 302, 307, 504, 506 of I.P.C. at Police Station- Shyamdaurava, District- Maharajganj and after investigation charge sheet was submitted by the Investigating Officer against the appellants.

6. Chief Judicial Magistrate, Maharajganj, committed the accused, Mahendra, Babulal, Munni Lal, Awadesh and Sursati for trial to the Sessions Court by the order dated 24.03.2003, the trial of co-accused, Kamlesh, was separated on the ground of juvenility. After submission of charge sheet, the trial court framed charges against the accused persons under Sections 147, 148, 302/149, 307/149, 504, 506 of I.P.C. The accused denied the charges and sought their trial.

7. To prove the prosecution case, the prosecution examined P.W.-1, Surendra Yadav(injured); P.W.-2, Surendra Nath Pandey( independent eye witness); P.W.-3, Kapil Dev Singh (independent eye witness); P.W.-4, Virendra (son of deceased): P.W.-5, Heera Lal ; PW.-6(wife of deceased), Ramsawari Devi; P.W.-7, Sub Inspector, Surendra Prasad; P.W.-8, Dr. O.N. Gupta (Autopsy Doctor); P.W -9, Dr. S.C. Verma (Prepared Injury Report of P.W.-1) and P.W.-10; Jayant Kumar Yadav (Investigating Officer).

8. P.W.-1, in his examination-in-chief stated that he had kept manure over his agricultural plot, which is towards the north of his village. Sursati dug the manure kept over his plot and threw it over her plot alleging that the informant side are stocking manure on her plot. At that time P.W.-1 and his brother, Suresh Yadav, were in the house, but not their father. Their father came in the evening and when they informed him about the conduct of Sursati, he went to her house to make complaint. Then Babu Lal, Munni Lal, Chunni Lal @ Mahendra son of Chokat, Awadesh and Kamlesh son of Babu Lal and Sursati came to their house abusing them. Babu Lal was having licensed gun and Mahendra and Kamlesh were having country made pistols while others were having lathis. Babu Lal fired on him from his licensed gun. The bullet did not hit him and he fell down on the ground because of fear. His father ran towards him apprehending that gun shot had hit him and then he was surrounded by all the four accused. He later stated that six accused surrounded his father. Then Babu Lal gave his licenced gun to Mahendra and took country made pistol from Mahendra and fired on the chest of his father. Again Babu Lal took back his licensed gun from Mahendra and returned country made pistol to Mahendra. Then Mahendra again fired on his father from the country made pistol which hit his right arm pit. His father fell down and died. Thereafter, Kamlesh, Awadesh, Sursati and Munni Lal beat all of us by lathi. At 09:00 P.M., his brother, Suresh Yadav, went to the Police Station after writing an application and got the First Information Report registered. His brother Suresh Yadav has died but he has seen him writing and he proved his signatures on the application given at police station for lodging report. P.W.-1 stated that his injuries were examined at Partawal Government Hospital on the next day, Inspector came, got the inquest proceedings conducted and sent the dead body of his father for postmortem. His statement was also recorded by the Inspector. P.W.-1 along with his two brothers accompanied the dead body of their father to the post mortem house.

9. During cross examination, P.W.-1 admitted that the accused side are related as their collaterals. The place were manure was kept is 25 steps away from his house. The field of Babu Lal is adjacent to his field. Sursati Devi, is wife of Babu Lal and he did not saw her digging manure from his field and throwing it in her field. Later after half-one hour when, he was passing from his field he saw his manure lying in the field of Sursati. He came back after 10 minutes. He did not show the Inspector the manure thrown by Sursati in his field but he informed him about this fact. The Inspector has asked him to show the same but because of his injuries he did not took him to the place. His elder brother, Suresh and 2-3 villagers went with the Inspector. When Sursati went back after throwing manure in her field, then his father was not present in the house. He had gone to work for Peerless. His father was working as Draftsman in Electricity Department at Mohaddipur, District- Gorakhpur, situated about 25 kms from his house. On the date of incident his father had not gone to work and was on leave. He had informed the Inspector that he and his brother Suresh did not went to the house of Sursati to make her complaint, only his father went to make her complaint. He cannot say why Inspector has not written this fact in his statement. When his brother was writing application he did not asked him to write the fact about his father going to make complaint. He did not suffered any pellet injury on his forehead, rather he suffered injuries only because of falling on the ground. He did not asked his brother to not to write the suffering of his pellet injury on his forehead because he thought that he is elder to him and will write what he considers appropriate. The night of incident was dark one but the fact that there was light at the place of incident was not mentioned in the first information report. The accused had come to their house armed with weapons and first of all started beating him. His brother, Suresh, also suffered injuries. Munni Lal caused him injuries by lathi but this fact was not written in the application written by Suresh. Suresh did not suffer any visible injuries and had only suffered minor injuries.

10. In his further cross examination, P.W.-1 stated that he did not informed the Inspector that his father went to make complaint of Sursati. He informed the Inspector that he complained against the conduct of Sursati. He informed the Inspector that when his father came, he informed him about the Sursati Devi removing manure from his field. Accused, Babu Lal, was Pradhan 3-4 years ago. All the six accused surrounded his father about 10 steps away from their house, in front of house of Sudama Gupta. Babu Lal made three fires; one hit his father and one hit him and the last bullet went in the air. The bullet did not hit him. Babu Lal fired on his father from a distance of one step. The other bullet fired by Mahendra also hit his father from distance of 1 feet. The third bullet of Kamlesh also hit his father. Kamlesh was 2 feet away from his father when he fired on him. None of them fired on us for the second time. He stated that he did not inform the Inspector that Kamlesh fired on the arm of his father by country made pistol. His father had only taken tea before the incident, he was wearing a Lungii and shirt at the time of incident. There was a hole in the shirt but the shirt was torn in the incident. There was no blood on the shirt and its button had broken. He admitted that he had not informed the Inspector that on the place of incident Ram Narayan, Kapil Dev Singh and Surendra Pandey were present and they have seen the incident. Ram Narayan is his maternal uncle (Mama) and was present at the time of inquest. He denied that at the time of incident his father was only wearing a half jacket and underwear.

11. P.W.-2, Surendra Nath Pandey, stated in his statement that after hearing the noise, he went towards the place of incident and found Hari Narayan Yadav fallen on the ground with blood oozing from his body. Many villagers had gathered. He saw Sursati on the place of incident and Babu Lal, Munni Lal and Awadesh were not there he did not saw any of the accused with any weapon. He can not say who fired on Hari Narayan Yadav. P.W.-2 was declared hostile. He denied his statement recorded under Section 161 of Cr.P.C., wherein he stated that Sursati Devi was abusing and Babu Lal after snatching country made pistol from Mahendra fired on Hari Narayan Yadav and after suffering fire arm injuries he fell down. He admitted in his cross examination that both the sides are related as collaterals and keep on quarrelling.

12. P.W.-3, Kapil Dev Singh, also denied that he saw the incident and denied his statement recorded by the Investigating Officer like P.W.-2 and was also declared hostile.

13. P.W.-4, Virendra, another son of deceased, stated before the court that wife of Babu Lal, Sursati, was abusing us after coming to their house. When his family members protested, she called accused, Babu Lal, Munni Lal, Mahendra, Awadesh and Kamlesh asking them to finish the daily affair. Thereafter the accused came armed with weapons and started beating his elder brother Surendra. When his father intervened, Babu Lal snatched country made pistol from Mahendra and fired on his father Hari Narayan. After his father fell down Babu Lal returned country made pistol to Mahendra and shot his father on his arm pit. To terrorize the villagers, who had come on the spot, Babu Lal fired from his licenced gun in the air. He further stated that in the incident two firing were made from the licenced gun. One hit the chest of his father. The injury on his arm pit was caused by the country made pistol from close range. He further admitted that in his examination-in chief, that he has not stated that Babu Lal fired on his father from licenced gun. He further admitted that he informed the Inspector that at the place of incident, there was electricity pole and light present.

14. P.W.-5, Heera Lal, only proved his signatures on the inquest report and denied that any sample of mud was taken before him or recovery of any gun or cartridge was made before him. He was also declared hostile. During cross examination he denied his statement recorded by the Investigating Officer under Section 161 of Cr.P.C. He admitted that his signatures are there on the memo of recovery of the mud samples and also the memo of recovery of the fire arm and cartridges but he does not knows about their contents.

15. P.W.-6, wife of deceased, Hari Narayan Yadav, stated that the incident took place before the house of Sudama Teli at 08:00 P.M. She stated that Sursati had encroached upon her land whereon manure was stored and on the date of incident she came armed with danda and threatened her. Her son, Awadesh and brother-in-law, Munni Lal, also came armed with danda. Thereafter, Babu Lal, came armed with gun and fired on her son, Surendra, who suffered gun shot injury on his forehead and fell down, thereafter, her husband came and after surrounding him Babu Lal, Mahendra and Kamlesh fired on him. Babu Lal had gun, Mahendra had country made pistol, she saw them causing the incident. When her husband raised alarm no one came from the village. Babu Lal shot her husband on the chest while Mahendra caused him fire arm injury on his right arm pit. She further stated that after her husband fell down, she fell over him to save him. Blood was coming out from his chest and it caused spots on her Sari and Blouse. Blood stains were also on the pants of her sons, Surendra, Suresh and Virendra. Their Blood stained clothes were not given to the Inspector. She stated that firing from gun and the country made pistols were made on her husband from close range.

16. P.W.-7, Sundar Prasad, proved the lodging of First Information Report at the Police Station and the G.D. Report regarding the same. In his cross examination he stated that in the First Information Report, there is no signature or thumb impression of the informant. There is also no endorsement in the First Information Report when it was sent to the Court of Magistrate and when it was received there. He also admitted that in the injury report of Surendra Yadav ( P.W.-1) neither his name nor case crime number nor section was mentioned. He denied that when the Majrubi Chitti was sent from the Police Station, the First Information Report was not registered at the Police Station.

17. That P.W.-8 , the Autopsy Doctor proved the Post Mortem Report of the deceased. He found the following Ante-mortem injuries on the body of the deceased:-

(i). Multiple gun shot superficial wounds 0.2 x 0.2 cm. over an area of 30 x 10cm. on the right arm and forearm upper half.

(ii). Multiple gun shot superficial wounds 0.2 x 0.2 cm. in an area of 30 x 14 cm. region over right axilla and chest lateral side.

(iii). Gun shot wound of entrance 1 x 1cm x chest cavity deep present on the middle of lateral side chest (Rt.) margins inverted.

On opening 7th rib fractured haematoma under neath the skin. Rt. lung is lacerated in the middle a bullet recovered front right chest cavity with 1 litre of blood (clotted) in cavity.

18. The doctor opined that the deceased died due to haemorrhage and shock as per result of Anti-mortem injuries. In the bundle of clothes 1 underwear, one vest, 1 rakhi thread and one big metallic bullet were sealed. The Doctor opined that injury no.3 was of grievous nature and was sufficient to cause death. The incident might have taken place on 12.09.1998 at 08:00 P.M. The injuries were caused by fire arms of 2 types and the injury no.1 and 2 were caused from distance of 6-9 feet while injury no.3 was caused from 3-4 feet of distance. Injury no.1 and 2 could be two shots. In the stomach four ounce of liquid matter was found which was of yellow colour. No loongi was recovered from the dead body of deceased.

19. P.W.-9, Dr. S.C. Verma, who examined the injuries of P.W.-1, found the following injuries on the person of the injured :-

(i). Lacerated wound 2.5cm. x 0.3cm. scalp deep on the internal side of Rt.eye brow;

(ii). Haematoma 6cm.x 1.2cm. on the left shoulder.

(iii). Haematoma 3cm.x 1.5cm. on the dorsal aspect of joint of left wrist.

(iv). Haematoma with swelling 7cm.x1.5cm on the left hand 11cm. below the elbow.

(v). All the injuries were found to be simple in nature and duration was fresh. The opined that the injuries could have been caused to the injured on 12.09.1998 at 08:00 P.M.

20. P.W.-10, Jayant Kumar Yadav, the Investigating Officer proved that he started the investigation of the case from the date of incident dated 12.09.1998 itself. He sent the injured to the Hospital, on the same day and recorded the statement of the informant on the same day; on 13.09.1998, he inspected the scene of incident and prepared the inquest report and site plan; he collected the blood strained and plain earth samples and made recovery of one 315 bore empty cartridge and two 12 bore cartridges; he recorded the statements of the witnesses of inquest report and statements of injured, Surendra Yadav, Smt. Sanwari witnesses, mentioned in the First Information Report, Surendra Pandey and Ram Narayan Yadav and sent the dead body for post mortem along with necessary documentation. He further proved the efforts made by him to secure the arrest of the accused. He proved the filing of charge sheet before the Court. He further stated that on 05.10.1998 he sent the samples of earth, the clothes of the deceased and the cartridges and the D.B.B.L., gun to the Forensic Science Laboratory, Lucknow. The live cartridges recovered were opened in the Court from a sealed plastic bag. Five empty cartridges and one 315 bore empty cartridge was recovered. Four live cartridges of 12 bore were also found in the same bag. Empty metallic bullet recovered from the dead body of deceased were also found.The D.B.B.L. Gun was also produced before the Court. The F.S.L. Report sent directly to the Court of Chief Judicial Magistrate was proved and according to the report the bullet recovered was fired from the D.B.B.L. gun.

21. During cross examination P.W.-10 admitted that the Empty cartridge was recovered on two different dates by him but he cannot tell the dates of recovery. He further stated that he saw the place where the disputed manure was kept but he can not tell the distance between the aforesaid place and the house of the deceased. P.W.-1 in his statement under Section 161 of Cr.P.C., did not informed him that he along with his brother, Suresh, went to the house of the Sursati to make complaint. He also did not informed that when his father came he informed about the conduct of Sursati. He also did not informed that Awadesh,Sursati and Munni Lal beat his family members with lathis nor he stated that Babu Lal fired on him by his licenced gun, but it did not hit him and he fell on the ground due the fear. He further stated that P.W.-1 never informed him that Kamlesh and Mahendra also fired from country made pistols. He also did not informed that his brother, Virendra, also saw the incident. P.W.10 admitted that he saw electricity pole on the place of incident but he did not show it in the site plan. He admitted that Virendra informed that Babu Lal gave country made pistol to Mahendra and he caused gun shot injury in the arm pit of his father. Virendra also informed him that Babu Lal fired on his father by the licence gun, he admitted that he has not shown the place of recovery of empty cartridges in the site plan or in his case diary. He further stated that Sanwari Devi (P.W.-6) never informed him that Babu Lal fired on his son Surendra and the bullet hit his forehead. He admitted that there was no case crime number mentioned on the Majroobi Chitti of Surendra Yadav. He also admitted that in the site plan he has not indicated the distance between the house of the deceased and the place where he was shot dead. He also admitted that the sample of stamp used in sealing the samples has not been produced in Court. The place where P.W.-1 suffered injury has also not been shown in the site plan.

22. The statement of the accused were recorded under Section 313 Cr.P.C., wherein they denied all the allegations made against them by the prosecution and alleged false implication on account of enmity.

23. The facts of the case are that the incident took place on 12.09.1998 at 08:00 P.M. and according to F.I.R. a petty dispute took place over manure which turned into verbal altercation and later turned violence leading to assault by gun and country made pistols. Appellant, Mahendra and Kamlesh, are said to have fired from country made pistol, while appellant, Babu Lal, caused injuries by D.B.B.L., gun and others were allegedly to have caused injuries by lathis.

24. The Leaned Counsel for the appellants submitted that as per the FIR, the incident is divided into two parts and the time of the first incident is not mentioned, which has been alleged as the motive, whereas the second incident occurred at 8:00 p.m.; the first informant received injuries yet there is no injury report of the first informant on record; P.W.-1 received gunshot injuries but the same is not supported by any injury report; the incident was witnessed by independent eye witnesses, out of which 2 have been declared hostile ( P.W.2 & P.W.3) and the 3rd was never produced for examination by the learned trial court; the FIR does not discloses the presence of P.W.4 & P.W.6 at the time of incident, yet they have been examined as eye witnesses, during trial after 11 years of the incident; the scribe of the FIR was never examined; number of FSL report is on record; no independent eyewitness was produced; the witness of this recovery had turned hostile, namely, Heeralal (P.W.-5); P.W.10 recovered one empty cartridge 315 bore and 2 empty cartridges of 12 bore in the presence of Shri Paras (not examined) and P.W.5 (hostile); recovery is at the behest of the public, not of the accused appellants; the recovery of the said weapon is from on open place which is accessible to all and hence, the same is not admissible under Section 27 of Indian Evidence Act; post mortem was conducted after almost 21 hours of the incident; the deceased was only wearing an underwear and a vest; no sign of blackening tattooing or charring was present on the deceased's body; clothing discrepancy noted in the PM.; the FIR was allegedly registered on 12.09.1998 at 21:15, yet the inquest was conducted after 9 hours of the incident i.e. the next day of the incident on 13.09.1998 at 6:20 A.M., meaning either the body of the deceased was lying at the place of incident, or the FIR is anti time, which itself creates a very reasonable doubt on the prosecution story; the Inquest was conducted in presence of five witnesses, yet only one was examined during trial being P.W.-5, who turned hostile; instigator was the deceased who first came to the house of the appellants; as per the First Information Report, first informant and P.W.1 sustained firearm injuries but as per statement of P.W.-1 he escaped the shot and fell down; as per the FIR, the deceased was first shot by Babulal and then shots were fired at the first informant and P.W.-1, but in the statement he says that shots were fired at him first and then on his father; the entire family was beaten by accused appellants, namely, Awdhesh, Sursati and Munnilal, yet there is no injury reports of family members on record; FIR was not proved as the scribe was not alive at the time of trial; the body of the deceased was at their place for the whole night and the inquest report was prepared on the next morning; motive of the crime was not proved by the prosecution; prosecution changed the FIR version with regard to the injuries sustained; source of light is contradictory read with the statement of the investigating officer; P.W.-1 stated that he did not saw Sursati cutting the manure but before the trial court he changed his version and stated that he did stopped her; P.W.-1 further stated that appellants, Mahendra and Babu Lal fired three shots, one bullet hit his father (deceased) and second bullet hit him and third bullet went in the air; the deceased was stated to be wearing shirt and lungi at the time of incident yet at the time of post mortem; the body was only covered with underwear and vest; there is contradiction in the statement of P.W.-1, which is as follows: -

"Babulal fired at me from his licence gun, the bullet did not hit me, I fell on the ground (out of fear). By then, my father came running he thought that I have been shot. Then these four people, no said six peoples surrounded my father . Then Babulal gave his license gun to Mahendra and took the pistol from Mahindra's hand shot my father with the pistol. The bullet hit his chest, again, Babulal took back his license from Mahindra and give the pistol that he was holding in his hand to Mahendra. Then Mahendra again shot my father in the armpit from a country made pistol. Kamlesh shot my father in the arm (right) with the country made pistol. Father fell down and died. Then said that Awdesh, Saraswati and Munni Lal beat the entire family members with lathis."

"When me and my father were surrounded, Babulal fired three shots, One of the bullets hit my father and one hit me third one went in the air"

"Babulal took the pistol from Mahendra's and fired the bullet hit my father, Hari Narayan yadav, son of Salik Yadav, who died at the spot. Thereafter, Babulal again took his licensed gun fro Maheindra and fired and Mahindra and Babu Lal alias Kamlesh also fired from the pistol. The bullet hit my brother Surendra Yadav ."

25. The learned counsel for appellant further submitted that P.W.-2, Surendra Nath Pandey, was introduced as an eyewitness for the first time during trial and his presence is not mentioned in the statement of P.W.1, or in the site plan or in the first information report; the witness was 12 years old at the time of incident; he came with a contradictory version from that of P.W.1 stating that it was the appellant, Sursati, who came to the house of P.W.-1 first and instigated the other co-accused; he further stated that when they started shouting, other villagers also gathered which is contradictory to the statement of P.W.6; the manner of assault stated by him was also contradictory to the statement of P.W.-1; P.W.4 in his chief examination said that two shots were fired by country made pistol at the deceased, one by the appellant, Babulal and the other by appellant, Mahendra, but in his cross examination, recorded after three months, he again changed his version and stated that two shots were fired from the licensed gun; moreover he admitted that he didn't say anything about the licensed gun shot in his examination-in-chief but no reason was given by him;

26. P.W.-6, widow of deceased, Ramsawari Devi, was introduced as an eye witness for the first time during trial. Her presence is not admitted in the statements of P.W.-1, P.W.-4 or in the site plan or in the first information report; she admitted that there were no eyewitness of the incident which is contradictory to the statements of P.W.1 and P.W.4; she further stated that on the date of incident her husband didn't go to Gorakhpur and he was at home only, which is in contradiction with the statements of P.W.1 and P.W.4; P.W.-6 denied that the deceased didn't go to the appellants' house to confront them, which is again in contradiction with the statements of P.W.-1 and P.W.4; as per her statement the incident started from 4 p.m and came to an end at 8 p.m in a continuous process; she stated that the deceased was shot at very close range (Sharir se sata kar mara), but there was no blackening, tattooing or charring present on the deceased's body; as per P.W.6 her son, P.W.1, sustained fire arm injury and the same is in contradiction with the statement of P.W.1 and his injury report;

27. P.W.-7 admitted in his statement that the Chik FIR doesn't bear the signature or thumb impression of the informant; he further admited that time has not been mentioned as to when the Exhibit Ka-2 reached the magistrate; he further admitted that the Majrubi letter issued does not bear the case crime number or the sections; it only mentions one injury sustained by the injured.

28. P.W.-8, Dr. O.N. Gupta, stated that gunshot injury nos. 1 and 2 have been caused from a distance of at least 6-9 feet and injury no.3 has been caused from a distance of 3-4 feet, hence it is not a close range shot; he further stated that if a person falls on a hard object on his left side, while running, the above mentioned injury nos. 1 to 4 may have been sustained; the injury report of P.W.1 was prepared at P.H..C. Partawal whereas the first information report was registered at Shyamderva and a specific suggestion was put to P.W.-9, Dr.S.C. Verma, who prepared the injury report of P.W.-1 in this regard but no reply was given.

29. P.W.-10 the investigating officer of the case admitted that the recovery of empty cartridges does not bear the date of recovery; he further stated that he recovered cartridges on two different dates; he contradicted the statements given by P.W.1, P.W.4 and P.W.6; he admitted that on the day of incident there was no source of light; that at the time of inquest the deceased was only wearing underwear and vest; that the Majrubi letter of P.W.1 didn't mentioned the case crime number, sections police station and name of injured.

30. Therefore, the sum total of the argumetns of the counsel for the appellant is that first information report is not supported by the medical evidence; the scribe of first information report was never examined; first information report is silent on the presence of P.W. 4 and P.W.- 6 at the time of incident; the named independent eye witnesses have turned hostile; the inquest was conducted on the next day, after 9 hours of the incident, without there being any plausible reason for the same; the first information report is anti timed; there are glaring contradictions in the testimony of P.W.1; P.W.1 has not sustained any gunshot injury and he admitted the same; the injury report of P.W.-1 is manufactured document and hence, the conviction on its basis cannot be sustained; P.W.-2, P.W.-3 and P.W.-5 have been declared hostile; the recovery of weapon is inadmissible as per Section-27 of Indian Evidence Act, 1872; there is no recovery of country made pistol; the ballistics report is not on record as the same has not been exhibited and the same was never put to the accused appellants under Section 313 Cr.P.C., and in view of the judgment of Raj Kumar @ Suman Vs. State (NCT of Delhi) Criminal Appeal No.1471 of 2023 decided on 11.05.2023/ Paragraph nos. 10,11 and 12.) it can not be relied; P.W.4 and 6 can not be treated as eye witnesses as there presence is not included neither in the FIR, statements under 161 Cr.P.C. nor in the site plan; they are interested witnesses and the fact that there presence is not shown, either in the first information report or in the site plan, hence their testimonies cannot be relied upon; post mortem was conducted after 21 hours of the incident, which itself creates a reasonable doubt on the prosecution story; it is a case of a blind murder wherein shots were fired from a distance and admittedly there was no source of light; the prosecution has absolutely failed to prove the case beyond all reasonable doubts and hence, the benefit of doubt has to be given to the accused-appellants.

31. The learned counsel for the appellant has made alternative argument that if the testimony of P.W.-1 is to be believed then the present case will fall under Exception 4 provided under Section 300 of I.P.C.; P.W.-1 has specifically stated that the deceased went to the house of the appellants which clearly demonstrates that it was not a premeditated murder; the appellant, namely, Babulal, has undergone 14 years of actual imprisonment and hence the appeals may be allowed and appellants be acquitted of all charges.

32. The leaned A.G.A. appearing on behalf of state has submitted that the death of deceased was caused by inflicting gun shot injuries and as per forensic report bullet used in the crime and recovered from the body of the deceased was fired from the D.B.B.L gun and pellet injuries were caused by country made pistol. The motive of crime was also proved by the prosecution. All the accused committed the offence in furtherace of common objection and hence all are liable to be punished under Section 302/149 I.P.C. There is eye witness account of the incident and the witnesses have to the prosecution case beyond reasonable doubt and hence the Judgment and Order of punishment may be confirmed by upholding punishment awarded to the appellants.

33. After hearing the rival contentions and going through the material on record we find that the parties are closely related. The dispute took place on account of petty issue of removal of manure from the agricultural field of the informant side by appellant, Sursati and dumping it on her agricultural field. Thereafter, the father of P.W.-1 came to his house and was informed about the conduct of Sursati. He went to the house of Sursati and other appellants to make complaint of the conduct of Sursati and thereafter, it appears that verbal altercation took place and under the heat of passion the appellants caused the alleged incident with led to the murder of Hari Narayan Yadav. From the first information report and the statements of the witnesses recorded by the trial court there does not appears to be any element of premeditation involved in the incident which may prove that it is a case of planned murder committed in furtherance of common object by all the appellants.

34. In order to appreciate this argument of learned counsel for appellants there is a need to refer to the law on the subject.

35. In order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder. In other words, Section 300 states both, what is murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that ''amounting to murder' as well as that ''not amounting to murder' in a composite manner in Section 300 of the Code.

36. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. 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, that is (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 extends to imprisonment for 10 years. The first clause of this section 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.

37. Thus, where the act committed 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.

38. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two Parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. 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 merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused.

39. The Hon'ble Supreme Court in the case of Mohinder Pal Jolly v. State of Punjab [1979 AIR SC 577], stated 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 "4thly", 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."

40. As we have already discussed, classification of an offence into either Part of Section 304 is primarily a matter of fact. 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 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 two-stage 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. We are stating such a proposition to indicate that such a determination would better serve the ends of criminal justice delivery. This is more so because presumption of innocence and right to fair trial are the essence of our criminal jurisprudence and are accepted as rights of the accused."

41. In Camilo Vaz vs. State of Goa, (2000) 9 SCC 1, referring to the ambit of Section 304 of the Code, Hon'ble Supreme Court in similar set of circumstances held thus:

"This section is in two parts. If analysed the section provides for two kinds of punishment to two different situations. (1) if the act by which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death. Here important ingredients is the "intention"; (2) if the act is done with knowledge that it is likely to cause death but without any intention to cause death or such bodily injury as is likely to cause death. When a person hits another with a danda on vital part of the body with such a force that the person hit meets his death, knowledge has to be imputed to the accused. In that situation case will fall in part II of Section 304 IPC as in the present case."

42. We find from the record that number of discrepancies are present in the statements of prosecution witnesses because of the lapse of about eleven years in the recording of their staements. There are also defects in the police investigation, benefit whereof cannot be granted to the defence since there is nothing on record to show that such defects go to the root of the prosecution case. Admittedly the parties are related as collaterals and had adjacent agricultural plots and bikerings are common in villages where the parties are related as such and come from common ancestors. Therefore the incident as alleged cannot be held to be false. It was substantially proved by the prosecution before the trial court.

43. In the present case, we find that as per Exception-4 to section 300 IPC culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. In this case the offenders under the heat of passion have fired from the country made pistol and D.B.B.L gun. Only the third injury on the right chest of the deceased caused by gun proved fatal for him. The other two injuries were superficial wounds on right arm and right chest in of the size of 0.2 x 0.2 c.m. There is nothing on record to indicate that any cruelty was metted out to the deceased and the offence was committed in some unusual manner. The gunshot injury was caused by appellant, Babu Lal, under the heat of passion due to anger. From the allegations proved we are of the view that the case will not travel beyond the commission of offence under Section 304, Part-I, I.P.C. The offence was committed in the heat of the moment and the appellants were unable to control their anger when the deceased went to make complaint of appellant , Sursati , to their house.

44. In view of the above consideration, we find that the appellants in appeal no. 6503/2011 namely, Smt. Sursati wife of Babul Lal, Awdesh son of Babu Lal and Munni Lal son of Chokat, have been implicated in this case and assigned the role of causing injury to the injured by lathi. They have been implicated with the help of Section 149 IPC in this case. No injuries were suffered by P.W.-1 which may prove fatal for his life. He suffered simple injuries only and, therefore, the implication of the above appellants for committing the offence of attempt to murder of P.W.-1 is unjustified.The deceased was not caused any injury by lathi. At the most they could have been convicted under section 323 IPC. Further implication under section 149 IPC is not justified. More than five persons of same family were implicated without any specific role to four of them only to justify their implication under section 149 Cr.P.C. Their conviction and sentence are modified and converted under section 323 IPC and the punishment is reduced to the period already undergone in jail. The appeal no. 6503/2011, is partly allowed.

45. Regarding Criminal Appeal No. 6529/2011, we are of the view that the conviction and sentence of the appellants, Mahendra Yadav son of Chokat and Babu Lal son of Chokat, is required to be modified to conviction and sentence under section 304, Part-I IPC. The appellants are directed to be convicted under section 304, Part-I IPC for imprisonment of ten years and fine of Rs. 25,000/- each. The period of custody undergone shall be adjusted in calculating the total period of confinement in jail. It appears that appellant no.2, Babu Lal, was never released on bail and has undergone more than 14 years of imprisonment. Therefore, appellant no. 2, Babu Lal, shall be released from jail on deposit of fine of Rs. 25,000/- which shall be paid to P.W.-6, widow of the deceased or her heirs and legal representatives, in case she is not alive. In case of default, he shall undergo further rigorous imprisonment of six months. His bail bond is cancelled and sureties discharged. The appellant no. 1, Mahendra, is on bail since the year 2012. His bail bonds are cancelled and sureties are discharged. He shall surrender forthwith and carry out the remaining sentence.

46. Both the appeals are partly allowed.

47. Let the trial court record be returned by the office within period of ten days.

August 29, 2025

Abhishek