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Allahabad High Court · body

2020 DIGILAW 689 (ALL)

Onkar v. State of U. P.

2020-03-04

RAJEEV MISRA, SUDHIR AGARWAL

body2020
JUDGMENT : Rajeev Misra, J. 1. This Criminal Appeal under Section 374(2) of Criminal Procedure Code has been filed by accused appellants Onkar and Uma Shankar, who have been convicted under Section 302 I.P.C. and consequently, sentenced to life imprisonment vide judgment and order dated 11.04.1983 passed by VIIIth Additional Sessions Judge, Kanpur in S.T. No. 306 of 1982 (State Vs. Onkar and others) under Section 302 I.P.C., Police Station-Chaubepur, District-Kanpur Dehat. 2. We have heard Mr. Satish Trivedi, Senior Advocate, assisted by Mr. Sheshadri Trivedi, learned counsel for appellants and Mr. Syed Ali Murtaza, learned Additional Government Advocate for State-respondent. 3. Prosecution case in brief as emerging from FIR dated 07.09.1982 as well as the material available on record may be stated as under: 4. An occurrence took place on 07.09.1982 in which Laxmi Narain died. In respect of aforesaid occurrence, a written report dated 07.09.1982 (Ext. Ka-1) was presented at police station Chaubeypur, District Kanpur on 07.09.1982 by First Informant, P.W.2-Darshan Devi, alleging therein that in the afternoon of 07.09.1982, Informant, her mother-in-law Mst. Mathura Kunwari, Informant's son Durga Prasad and Laxmi Narain, elder brother of Informant's husband, were present at their home. Informant's nephews namely Onkar, Uma Shankar and Smt. Geeta Devi wife of Onkar, were also present in the house. At the instance of Mathura Kunwari, mother-in-law of Informant, elder brother of Informant's husband, Laxmi Narain had sold wood of a mango tree, which had fallen down, for a consideration of Rs.900/-. At about 12.30 PM on 7.9.1982, Onkar objected to Laxmi Narain claiming that he too had share in the wood sold by him and demanded money of his share, whereupon Laxmi Narain said that the fallen mango tree belonged to his mother and it was at her instance that, wood of fallen mango tree was sold. This got Onkar infuriated and he threatened that he would teach a lesson. Thereafter Onkar armed with sickle (Hansiya) and Uma Shankar armed with Spud (Khurpi) started assaulting Laxmi Narain; Smt. Geeta Devi also caught hold Laxmi Narain and all the three persons felled Laxmi Narain on the ground and inflicted injuries on his legs, arms and neck with sickle and spud. On account of injuries inflicted Laxmi Narain died instantaneously. Thereafter Onkar armed with sickle (Hansiya) and Uma Shankar armed with Spud (Khurpi) started assaulting Laxmi Narain; Smt. Geeta Devi also caught hold Laxmi Narain and all the three persons felled Laxmi Narain on the ground and inflicted injuries on his legs, arms and neck with sickle and spud. On account of injuries inflicted Laxmi Narain died instantaneously. Informant and her mother-in-law raised alarm, whereupon villagers Shiv Ram Singh, Raj Bahadur Singh and other persons in the vicinity arrived on the spot and witnessed the incident. Accused Onkar, Uma Shankar and Smt. Geeta, after committing murder of Laxmi Narain fled away from the place of occurrence. On the basis of written report (Ext. Ka-1), P.W.-5 Head Moharrir Ram Prasad Misra made relevant entries in the general diary. He thereafter prepared the Check F.I.R. (Ext. Ka-4). 5. Thereafter investigation of case was undertaken by P.W.-7, Sub-Inspector D.S. Sharma, Station Officer, P.S. Chaubeypur, District Kanpur. He recorded statement of P.W.2 Darshan Devi (Informant), visited the place of occurrence and prepared inquest (Ext. Ka-6). He also prepared Photo LASH and Challan LASH (Ext. Ka-7) and (Ext. Ka-8), respectively. He thereafter dispatched the dead body for postmortem examination after duly sealing the same through constable Jeet Narain Chaubey, P.W.1. He prepared the site plan (Ext. Ka-10) on the pointing of First Informant. He collected blood stained and plain earth in two separate boxes, sealed them and prepared recovery memo Ext. Ka-11. He marked sealed boxes as Material Ext. 1 and 2. Thereafter he sent both sealed boxes for Serological examination to the Serologist along with towel (Ext. 1), Janeu (Ext.4) Shirt (Ext.5) in a sealed bundle. 6. Autopsy on the dead body of Laxmi Narain was conducted by P.W.8 Dr. S.C. Gupta at 2.30 pm on 8.9.1982. According to him, deceased was aged about 40 years. His body was of average built. His eyes were open, rigormortis was present on both upper and lower limbs. In the opinion of Doctor, about one day had passed since the time of his death. He found following ante mortem injuries on the body of deceased: 1-Incised wound 4 cm x 2 cm x bone deep over right eyebrow. Edges of wounds retracted. 2-Incised wound present parallel and below to lower jaw 6 cm x 1.5 cm x muscle deep on left side of neck. He found following ante mortem injuries on the body of deceased: 1-Incised wound 4 cm x 2 cm x bone deep over right eyebrow. Edges of wounds retracted. 2-Incised wound present parallel and below to lower jaw 6 cm x 1.5 cm x muscle deep on left side of neck. 3-Incised wound present on the left side of neck 2.5 cm above left clavicle size 16 cm x 4 cm x half depth of neck cut with lop haemorrhage. Edges of wound retracted. 4-Incised wound present on the front of right side of chest 7 cm above right nipple size 3 cm x 1.5 cm x muscle deep. 5-Incised would present on the left shoulder 4 cm x 1.5 cm x muscle deep. 6-Incised wound present on the front of left upper arm 10 cm above left elbow joint; size 6.5 cm x 1/2 cm x skin deep. 7-Incised wound present on the front of left upper arm 5 cm above left elbow size 7 cm x 3 cm x muscle deep. 8-Incised wound present 6.5 cm above right knee size 6 cm x2.0 cm x muscle deep over front of right thigh. 9-Incised wound present 6.5 cm below right knee size 6.5 cm x1.5 cm x muscle deep over front of right leg. 10-Incised wound present over right leg 11 cm below right knee size 4 cm x 1 cm x bone deep. 11-Incised wound present on the front middle part of left thigh front side, size 7 cm x 3 cm x muscle deep. 12-Incised wound present on the left thigh 12 cm above left knee size 6 cm x 1.5 cm x muscle deep. 13-Incised wound present on the left thigh front side 10cm above left knee size 3.5 cm x 1/2 cm x muscle deep. 14-Incised wound present over front of left leg 11 cm below left knee size 3 cm x 1.5cm x muscle deep. 15-Incised wound present on the left leg front size 5 cm x 2 cm x bone deep (Tibia bone cut in chips) injury present 10 cm below left knee. 16-Incised wound present on the front of left leg 15 cm below left knee size 4.5 cm x 1/2 cm x bone deep. 17-Incised wound present on the back of neck at level of 6th cervical size 7 cm x 4 cm x vertebral deep (6th cervical vertebral cut). 16-Incised wound present on the front of left leg 15 cm below left knee size 4.5 cm x 1/2 cm x bone deep. 17-Incised wound present on the back of neck at level of 6th cervical size 7 cm x 4 cm x vertebral deep (6th cervical vertebral cut). 18-Incised wound present on the right side back of neck size 6 cm x 1.5cm x muscle deep. 19-Incised wound present on the back of left shoulder over border of scapula size 3 cm x 1/2 cm x muscle deep. 20-Incised wound present on the back of left shoulder 5 cm x 2.5cm x muscle deep. 21-Incised wound present on the back of left shoulder 5 cm x 1 cm x muscle deep one cm below injury no.20. 22-Incised wound present on the back of left lge5 cm below left knee size 4 cm x 1.5 cm x muscle deep. 7. On external examination P.W.8 found that 6th cervical vertebral was cut corresponding to injury no.17. Heart was empty and weighed 180 grams. Vessels of left side neck were cut. Stomach was empty; small intestine was empty but filled with gases; large intestine was found half filled with gases. 8. In the opinion of autopsy surgeon, death of deceased was caused due to shock and haemorrhage, as a result of ante mortem injuries. 9. Thereafter on receipt of report of Serologist (Ext. Ka-12) and (Ext. Ka-13), and after conclusion of investigation, P.W.7, S.I., D.S. Sharma Investigating Officer submitted charge sheet dated 4.10.1982 (Ext. Ka-14) in the Court against Onkar, Uma Shankar and Geeta Devi. 10. Upon submission of aforesaid charge-sheet, cognizance was taken by the Chief Judicial Magistrate, Kanpur vide cognizance taking order dated 14.10.1982 under Section 302 IPC. As the case was triable by Court of Sessions, the matter was accordingly committed to Court of Sessions, Kanpur vide committal order dated 20.11.1982, passed by C.J.M. Kanpur. Consequently, Sessions Trial No. 306 of 1982 (State Vs. Onkar and others) under Section 302 I.P.C., P.S. Chaubepur, District-Kanpur came to be registered. 11. Aforesaid Sessions Trial was subsequently transferred to the Court of VIIIth Additional District and Sessions Judge, Kanpur, who framed charges against accused namely Geeta Devi, Onkar and Uma Shankar vide framing of charge orders dated 18.01.1983. Charges against Geeta Devi, Onkar and Uma Shankar, read as under: Charge framed against Geeta Devi “I, G.A. Farooqi,VIII Addl. 11. Aforesaid Sessions Trial was subsequently transferred to the Court of VIIIth Additional District and Sessions Judge, Kanpur, who framed charges against accused namely Geeta Devi, Onkar and Uma Shankar vide framing of charge orders dated 18.01.1983. Charges against Geeta Devi, Onkar and Uma Shankar, read as under: Charge framed against Geeta Devi “I, G.A. Farooqi,VIII Addl. District & Sessions Judge, Kanpur-NMA do hereby charge you Smt. Geeta Devi as follows: That you on 7.9.82 at about 12.30 noon in village Kharagpur, P.S. Chaubeypur, Distt. Kanpur-Dehat from common intention with Onkar and Uma Shanker to commit the murder of Luxmi Narain and in furtherance of that common intention you alongwith Onkar and Uma Shanker committed murder by intentionally causing the death of Luxmi Narain and thereby committed an offence punishable U/s 302 IPC read with Section 34 I.P.C. and within my cognizance. And I, hereby direct that you be tried on the aforesaid charge by me.” Charge framed against Onkar and Uma Shanker “I, G.A. Farooqi,VIII Addl. District & Sessions Judge, Kanpur-NMA do hereby charge you Onkar and Uma Shanker as follows: That you on 7.9.82 at about 12.30 noon in village Kharagpur, P.S. Chaubeypur, Distt. Kanpur-Dehat committed murder by intentionally causing the death of Luxmi Narain and thereby committed an offence punishable U/s 302 IPC and within my cognizance. And I, hereby direct that you be tried on the aforesaid charge by me.” 12. Accused persons denied the charges so framed and demanded trial. Consequently, burden fell upon prosecution to bring home the charges levelled against accused. 13. Accordingly, prosecution in support of its case, adduced eight witnesses, out of whom, P.W.2 Darshan Devi (Informant), P.W.3 Durga Prasad and P.W.6 Raj Bahadur Singh are witnesses of fact, who have deposed material facts about the occurrence. 14. P.W.1 C.P. No. 3109, Constable Jeet Narain Dubey, was posted at Police Station Chaubeypur, District-Kanpur Dehat on 7.9.1982. This witness took the dead body of deceased for postmortem on 7.9.1982 and got postmortem of body of the deceased conducted on 8.9.1982. This witness was cross-examined with regard to the timing of postmortem as well as the distance between hospital and Police Station. However, defence could not dislodge this witness. As such, his testimony remains intact. 15. P.W.-2 Darshan Devi, wife of Radhe Shyam is a witness of fact. This witness was cross-examined with regard to the timing of postmortem as well as the distance between hospital and Police Station. However, defence could not dislodge this witness. As such, his testimony remains intact. 15. P.W.-2 Darshan Devi, wife of Radhe Shyam is a witness of fact. It is this witness who had submitted written report dated 7.9.1982 at Police Station Chaubeypur, District Kanpur Dehat, of the occurrence dated 7.9.1982. This witness has clearly proved the manner of occurrence and also the place of occurrence. She has implicated accused persons namely, Onkar, Uma Shanker, and Geeta Devi in the commission of crime. She has clearly assigned role of causing injury to deceased to Onkar and Uma Shanker. This witness was recalled and also cross-examined but she remained intact. 16. P.W.-3, Durga Prasad is a child witness. This witness has also deposed regarding the manner of occurrence and also place of occurrence. His testimony has been consistent and inspite of lengthy cross-examination, prosecution could not dislodge him. 17. P.W.4 Naresh Chandra, is the area Lekhpal. He has proved Khatauni Ext. Ka-2 in respect of Survey Plot No. 738 area 3 bigha recorded in the name of Mathura Kunwari Kaith, Ram Autar and Jwala Prasad sons of Ramma. 18. P.W.5 is H.C. No. 72 Ram Prasad Mishra. This witness was posted as Head Moharrir at P.S. Chaubeypur, District Kanpur Dehat. This witness entered written report dated 7.9.1982 in the general diary and thereafter, prepared Check F.IR (Ext. Ka-4). He has proved Check F.I.R. (Ex. Ka-4) as well as G.D. entry regarding written report (Ex. Ka-5). This witness was cross-examined with regard to the timing of lodging of F.I.R. and also the person in whose presence F.I.R. was registered. However, defence could not cull out any such statement from him on the basis of which testimony of this witness could be doubted. 19. P.W.-6 Ram Bahadur Singh is a witness of fact and a neighbour of First Informant. This witness has deposed before Court below that he has witnessed the occurrence. He has accordingly described the manner of occurrence as well as the place of occurrence. His testimony, by and large, is similar to P.W.2 Darshan Devi and P.W.3 Durga Prasad. This witness was cross-examined by defence but defence failed to dislodge him. 20. P.W.7 Sri D.S. Sharma is the Investigating Officer, who has proved inquest report Ext. He has accordingly described the manner of occurrence as well as the place of occurrence. His testimony, by and large, is similar to P.W.2 Darshan Devi and P.W.3 Durga Prasad. This witness was cross-examined by defence but defence failed to dislodge him. 20. P.W.7 Sri D.S. Sharma is the Investigating Officer, who has proved inquest report Ext. Ka-6, Photo Nash and Challan Nash as Ext. Ka-7 and Ext. Ka-8, specimen seal Ext. Ka-9, Site Plan Ext. Ka-10, Blood Stained and Plain Earth sealed in two separate boxes, Material Exhibits (M. Ext.) 1 and 2, Recovery Memo in respect thereof Ext. Ka 11. He has also proved Towel (M. Ext.3), Janeu (M. Ext.4) and Shirt (M.Ext.5), which were sent to Serologist for analysis. Report received from Serologist Ext. Ka-12 and Ext. Ka-13 and Charge-sheet Ext.Ka-14, have been proved by him. 21. P.W.8 Dr. S.C. Gupta, had conducted autopsy on the dead body of deceased. He has proved Postmortem Report Ext. Ka-15 prepared by him. This witness had described nature of injuries found on the body of deceased as incised wounds and also detailed the status of body. This witness has clearly supported that injuries sustained by deceased could have been caused by weapons of assault namely, sickle (hansiya) and spud (Khurpi). This witness has also suggested the time of death of deceased which is similar to timing of incident stated in the F.I.R. Inspite of detailed cross-examination, prosecution failed to dislodge this witness. 22. Defence in support of its case, adduced three witnesses namely D.W.-1, Krishna Gopal, D.W.-2 Ram Gopal Verma and D.W.-3 Chandrabhan Singh. However, all the three defence witnesses were disbelieved by Court below. 23. After prosecution evidence was over, all the incriminating material and adverse circumstances were disclosed to the accused for their version of occurrence in terms of Section 313 Cr.P.C. The accused persons denied most of the questions by repeatedly saying that it is false or they have no knowledge regarding the same. 24. 23. After prosecution evidence was over, all the incriminating material and adverse circumstances were disclosed to the accused for their version of occurrence in terms of Section 313 Cr.P.C. The accused persons denied most of the questions by repeatedly saying that it is false or they have no knowledge regarding the same. 24. On behalf of accused, it was urged before Court-below that P.W.6 Raj Bahadur Singh is not an independent witness; he has illicit connection with Smt. Darshan Devi and has been cultivating land on Batai, as such, he is a partisan witness, therefore, his testimony could not be relied upon; non production of neighbouring witnesses makes prosecution case highly doubtful; as per the site plan, witnesses are shown to have arrived at the place of occurrence from western side whereas, P.W.6 Raj Bahadur has deposed that he came from eastern side to the place of occurrence; F.I.R. is ante-time; no food was found in the stomach of deceased, therefore, defence case that deceased Laxmi Narayan was murdered in the night stand supported by the statement of Doctor. It was also urged that P.W. 8 Dr. S.C. Gupta, who conducted autopsy on the body of deceased, has not stated that death was caused due to shock and hemorrhage, due to ante-mortem injuries; as such, it is not proved that Laxmi Narayan has died because of shock and hemorrhage as a result of ante-mortem injuries. Mother of Laxmi Narayan was the best witness to prove the occurrence and her non production makes prosecution case doubtful. Accused Geeta Devi is entitled to get the benefit of doubt as there is no evidence to show that Smt. Geeta Devi has also assaulted Laxmi Narayan with any weapon. 25. The Court below meticulously and exhaustively dealt with each of the above mentioned submissions urged on behalf of the accused-appellants to dislodge the prosecution case and vice-versa in proof of their innocence. Upon evaluation of the said submissions, in the light of the proposition required to be addressed in a case relating to direct evidence i.e. prosecution witnesses of fact are credible and reliable, none of the submissions urged on behalf of accused-appellants to dislodge the prosecution case were found cogent enough by Court below to believe another hypothesis much-less a reasonable hypothesis than the one pleaded by prosecution. Consequently, Court below by means of judgment and order dated 11.04.1983 convicted accused Onkar and Uma Shanker under Section 302 I.P.C. but acquitted accused Geeta Devi by extending her the benefit of doubt. Hence feeling aggrieved by judgment and order dated 13.09.2012, as detailed above, accused-appellants have now approached this Court by means of present criminal appeal. 26. Learned counsel for appellants urged that Court below has observed in impugned judgment that there is no evidence on record to show that the accused appellants assaulted deceased with a premeditated mind, which resulted in the death of Laxmi Narain, the deceased, as such, no conviction under Section 302 I.P.C. was possible. However, Court below has not specifically dealt with this issue. 27. Elaborating his argument, learned Senior Counsel for appellants submits that the case in hand is liable to be considered in the light of the provisions contained in Section 304 part 1 I.P.C. As per prosecution evidence itself there is nothing to show that there was a premeditated mind on the part of the accused-appellants to commit the crime. As such it is urged that the case in hand is one which is required to be judged on the principle of sudden quarrel. Consequently other findings rendered by Court below have been challenged by learned Senior Counsel for appellants. 28. However, this Court being the last Court of fact and also the legal obligation with which a Court of appeal is cloaked, we have to scrutinize the findings recorded by Court-below and also evaluate oral evidence on record to find out whether conviction of the accused-appellants deserves to be maintained, modified or same is liable to be set-aside. 29. This brings us to the issue relating to the appreciation of evidence by appellate Court as held in State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324 Paragraphs 15, 16, 17, 24 of aforesaid judgment clearly deal with the manner in which the evidence of the eye-witnesses is to be evaluated in a criminal case. Paragraphs 15, 16, 17 and 24 are accordingly reproduced herein below:- 15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. Paragraphs 15, 16, 17 and 24 are accordingly reproduced herein below:- 15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. 16. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the Trial Court and unless the reasons are weighty and formidable, it would not be proper for the appellate Court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the Court. Small/trivial omissions would not justify a finding by Court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. 17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case. 24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the Court must keep in mind all these relevant factors while appreciating evidence of a rustic witness." 30. Applying aforesaid observations made by Apex Court to the case in hand, we find that Court-below has rightly held that prosecution witnesses of fact are credible and reliable and hence, their testimony is worthy of credit. There is no such contradiction, embellishment or exaggeration in the testimony of prosecution witnesses of fact so as to discard the same. Applying aforesaid observations made by Apex Court to the case in hand, we find that Court-below has rightly held that prosecution witnesses of fact are credible and reliable and hence, their testimony is worthy of credit. There is no such contradiction, embellishment or exaggeration in the testimony of prosecution witnesses of fact so as to discard the same. The testimony of prosecution witnesses of fact has been similar in content and consistent throughout. We have ourselves also examined oral testimony of prosecution witnesses of fact in the light of observations made by Apex Court as referred to above and inescapable conclusion is that the testimony of prosecution witnesses of fact have to be relied upon and dealt with accordingly. 31. We have already referred to the proposition which is required to be addressed by a Court while dealing with a case of direct evidence. The veracity of prosecution case is to be judged in the light of the same. P.W.-2, Darshan Devi, P.W.3 Durga Prasad and P.W.-6, Raj Bahadur Singh, are eye witnesses of the occurrence. They have fully proved the occurrence. The defence in cross-examination of these witnesses could not dislodge their testimony nor could it cull out any such thing on the basis whereof it could be even remotely inferred that the aforesaid eyewitnesses of fact are not credible and reliable and hence not worthy of trust. The three prosecution witnesses of fact namely P.W.-2 Darshan Devi, P.W.-3, Durga Prasad and P.W.-6 Raj Bahadur Singh have been consistent throughout regarding description of the manner of occurrence. They have also proved the identity of accused persons, which further stands corroborated from the fact that the accused have been nominated by name in the F.I.R. The defence, in spite of detailed and lengthy cross-examination of these witnesses, could not bring another hypothesis regarding the presence of accused at the time and place of occurrence. Secondly, the prosecution case that deceased died on account of the Ante-Mortem injuries caused upon the deceased by two of the named accused persons, stands corroborated by medical evidence, i.e., the Post-Mortem Report (Ext. Ka. -1) as well as the testimony of P.W.-8, Dr. S. C. Gupta, who conducted autopsy on the body of deceased. He has described ante-mortem injuries found on the body of the deceased as Incised Wounds. Ka. -1) as well as the testimony of P.W.-8, Dr. S. C. Gupta, who conducted autopsy on the body of deceased. He has described ante-mortem injuries found on the body of the deceased as Incised Wounds. He has also discussed ante-mortem injuries found on the body of the deceased as incised wounds, which could have only been caused by the weapons of assault, namely, sickle (Hansiya) and Spud (Khurpi) in the hands of two of the the accused. The opinion of Doctor regarding time of death of deceased also leads to the same inference that occurrence took place around 12.30PM. Thirdly, on the question of motive, it may be noted that in a case of direct evidence motive is irrelevant. But there can be no motiveless malignancy also. All the prosecution witnesses of fact have been consistent in their statements throughout regarding the cause behind the occurrence i.e. the demand of his share of money by Onkar in the consideration received from selling wood of a fallen mango tree. In the description of the manner of occurrence right from the beginning upto death of deceased, all the prosecution witnesses have been consistent and natural. Thus prosecution was able to prove the same story which it set out to prove. Lastly, the submission urged on behalf of accused-appellants that there was no pre-meditated mind to commit the crime coupled with the fact that the accused-appellants have not come out with their version of occurrence, clearly amounts to an admission qua the happening of the occurrence in the manner alleged by the prosecution itself. 32. In view of our agreement with the findings recorded by Court below on the various circumstances urged on behalf of the accused-appellants regarding proof of their innocence, the inescapable conclusion is that the prosecution has succeeded in establishing its case. Therefore, the conclusion drawn by the Court below holding that the accused are guilty of committing murder of Laxmi Narain (deceased) cannot be faulted with. 33. However, we find that the case in hand relates to a sudden act. Therefore, the conclusion drawn by the Court below holding that the accused are guilty of committing murder of Laxmi Narain (deceased) cannot be faulted with. 33. However, we find that the case in hand relates to a sudden act. There is nothing on record to show that there was any mensreaon the part of present accused-appellants to commit the alleged crime or there was any such circumstance to establish existence of a calculated mens reato take revenge of any such act committed by the deceased prior to the occurrence or there was pre existing enmity between the two. This aspect of the matter has remained untouched by Court-below. 34. Thus the question which arises for determination in this appeal is “whether the case in hand is one relating to culpable homicide amounting to murder (punishable under Section 302 I.P.C.) or culpable homicide not amounting to murder (punishable under Section 304 I.P.C.).” 35. The law takes care of such a situation. Section 300 IPC lays down the exceptions to Section 299 IPC which deals with culpable homicide not amounting to murder. Any act done upon sudden and grave provocation is the 4th exception to Section 300 IPC. For ready reference Sections 299 and 300 IPC are reproduced herein-under: 299. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Culpable homicide.—Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. 300. Murder.—Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or- (Secondly) —If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or— (Thirdly) —If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or— (Fourthly) —If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 36. It would be worthwhile to refer to judgment in Surain Singh Vs. State of Punjab reported in 2017 (5) SCC 796 , wherein Court in paragraphs 13 and 14 has explained law relating to the 4th exception to Section 300 Cr.P.C. The same are quoted herein-below:- 13. Exception 4 to Section 300 of the Indian Penal Code applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 Indian Penal Code covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the First exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A"sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. 14. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into fury on account of the verbal altercation in the beginning. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general Rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage". 37. In the light of above, we are of the view that case in hand clearly falls within the exceptions provided for in Section 300 I.P.C. 38. Accordingly, we uphold the view taken by Court below that accused appellants are guilty of committing murder of deceased Laxmi Narain but the offence committed comes within the ambit of Section 304 Part-I IPC and not 302 IPC. However, for the reasons mentioned herein above, we modify the punishment awarded to accused-appellants by Court-below. 39. The conviction of accused-appellants under Section 302 I.P.C. as imposed by VIIIth Additional Sessions Judge, Court No. 8, Kanpur vide judgment and order dated 11.04.1983 is converted into conviction under Section 304 Part-I I.P.C. Consequently, appellants shall undergo rigorous imprisonment for a period of 10 years if not already completed. Appellants shall be released after calculating remission under relevant provisions of Code of Criminal Procedure/completion of sentence. Appellants, namely, Onkar and Uma Shanker are in jail. They shall serve out the sentence so awarded if not already completed. 40. The appeal is partly allowed. 41. Office is directed to send back the lower court record to the concerned Court below forthwith. 42. Let a copy of this order be communicated to concerned Jail Superintendent as well as Legal Services Authority, High Court, Allahabad.