Ajmatulnish And 3 Others. vs State Of U.P.

[AFR]
[Reserved on 31.07.2026]
[Delivered on 03.09.2026]
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
CRIMINAL APPEAL No. - 566 of 1999
[Neutral Citation No. - 2026:AHC-LKO:62182-DB]
Ajmatulnish and 3 others.
…..Appellant(s)
Versus
State of U.P.
…..Respondent(s)
Counsel for Appellant(s) : Balram Yadav, Alok Singh, Rishad
Murtaza
Counsel for Respondent(s) : Govt Advocate, Sanjai Srivastava, Vivek
Singh
Court No. - 11
HON'BLE ABDUL MOIN, J.
HON'BLE PRAMOD KUMAR SRIVASTAVA, J.
[Dictated by Hon. Pramod Kumar Srivastava, J.]
1. Heard Sri Rishad Murtaza assisted by Sri Arnav Tikku and Ms.
Aishwarya Mishra, learned counsel for the appellants and Sri
Shiv Nath Tilhari, learned Additional Government Advocate for
the State.
2. The present Criminal Appeal under Section 374(2) fo the Code of
Cr.P.C. has been preferred against the judgment and order dated

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16.10.1999 passed in Sessions Trial No. 16 of 1994 by learned
IXth Additional Sessions Judge, Faizabad, convicting the
appellants no. 1 and 2 under Sections 323/34 of IPC for a period
of one year rigorous imprisonment and appellants no. 3 and 4
under Section 302/34 of the IPC for life imprisonment with a fine
of Rs. 5000/- each and in default of payment of fine additional
one year rigorous imprisonment.
3. Since appellant no. 1 Ajmatulnisha has died and the instant
criminal appeal has already been dismissed as abated against
her, therefore, it survives only for appellants no. 2 Kismatulnisha,
appellant no. 3 Niyaj and appellant no. 4 Riyaj.
4. The instant criminal appeal is Factual matrix of the case is that on
30.09.1993 at about 06:30 A.M., informant's father Mohammad
Sharif was brushing his teeth at the tap installed by Jal Nigam.
Accused-appellants, namely, Ajmatulnisha and Kismatulnisha
were hurling abuses because some child had defecated in the
drain in front of their house. When Mohammad Sharif objected to
they hurling abuses, they got angry and grappled Sharif's
testicles and knocked him down. In the meantime, the accused-
appellant Niyaz, who was having a spade handle and accused-
appellant Riyaz having lathi in his hands, started to inflict blows
with intention to kill the deceased-Mohammad Sharif. On this,
informant-Raees, his sister Alimunnisha and villagers Mohammad
Sharif S/o Mohammad Ghareeb, Mohammad Kaleem and Jameel
rushed to rescue Mohammad Sharif. Then accused persons fled
away leaving Mohammad Sharif in injured condition. Thereafter,
when the informant was carrying his injured father to the hospital,
on the way, the injured Mohammad Sharif passed away.
5. Upon written tehreer dated 30.09.1993 given by the informant
Mohammad Raees, the First Information Report (hereinafter
referred in short as “FIR”) had been lodged on the same day i.e.

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on 30.09.1993 at about 08:30 A.M. against the accused persons,
namely, Ajmtulnisha, Kismatulnisha, Niyaj and Riyaj under
Section 302/34 of the IPC.
6. After lodging of the FIR, the inquest of the dead body of the
deceased was prepared and the same was sent for autopsy.
During the course of investigation, Investigating Officer visited the
place of occurrence and prepared site plan, recorded the
statements of the witnesses and after concluding the investigation
filed the chargesheet against the accused persons, namely,
Ajmtulnisha, Kismatulnisha, Niyaj and Riyaj under Section 302 of
the IPC.
7. Upon compliance of the mandatory provision of 207 of the
Cr.P.C., the learned Chief Judicial Magistrate, Faizabad finding
the case exclusively triable by the court of Sessions, committed
the same to the court of Sessions vide order dated 05.01.1994
from where it is made over to court of Additional Sessions Judge,
Faizabad for disposal according to law.
8. The learned trial court i.e. Additional Sessions Judge, Faizabad
framed the charges on 09.09.1996 against the accused persons
under Section 302 IPC read with Section 34 of the IPC and read
over and explained to them for which they denied and claimed to
be tried.
9. In order to prove its case the prosecution examined Mohd. Raees
(PW-1), Mohd. Sharif (PW-2), Alimunnisha (PW-3), Dr. R.V. Singh
(PW-4), Head Constable Chotan Yadav (PW-5), Sub Inspector
Chandrawati Rai (PW-6).
[STATEMENTS OF PROSECUTION WITNESSES]
10. Mohd. Raees (PW-1 ) deposed that on 30.09.1993 at 6:30 A.M.,
his father Md. Shareef was brushing his teeth near a public hand

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Criminal Appeal No. 566 of 1999
pump in front of their house. Accused Ajmtulnisha and
Kismatulnisha were abusing his family over a child defecating in a
nearby drain. When his father objected, both women grabbed his
father's testicles and knocked him down. Hearing his cries, PW-1
rushed out and saw accused Niyaj strike his father on the head
with the handle of a spade (phawda) and accused Riyaz hit him
with a lathi. While taking his father to Sadar Hospital Faizabad on
a handcart, his father died on the way after which he wrote the
report (Ex. Ka-1) and submitted it at Cantt Police Station.
11. On his Cross-Examination, he admitted that he did not explicitly
mention in his written report or initial statement to the police that
Niyaj specifically hit his father on the head with a spade handle.
He stated that he saw no injuries on accused women Ajmtulnisha
and Kismatulnisha. He denied that his father attacked the women
or got injured by bricks or that he had a private hand pump at his
home and was hiding that. He also stated that there was no
enmity with the accused persons prior to the said incident.
12. Mohd. Sharif @ Babban (PW-2) in his statement deposed that
he was at home at 6:30 A.M. on 30.09.1993 when he heard
Ajmtulnisha and Kismatulnisha abusing the neighborhood over
drain defecation. When Md. Sharif objected, Ajmtulnisha grabbed
Sharif's testicles and Kismatulnisha grabbed his waist, causing
his lungi to loose, then Niyaj hit Sharif on the head with a spade
handle, causing him to fall, after which Riyaj struck him with a
lathi. On hearing the commotion Kaleem and Jameel arrived at
that place and Raees took the deceased on a wheel cart and was
accompanied by his mother. Raees had asked him to bring paper
from the market to write the police report.
13. On his Cross-Examination, he stated that Mohd. Sharif died on
his way to the hospital but exactly at which place he died, he
does not know. He further stated that he took the pages from the

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Criminal Appeal No. 566 of 1999
shop at Tikawganj market and denied the allegation that no shop
in the market opens before 10 A.M. He further stated that he took
the paper to the police station and stayed there for about 2 hours
and then left before Anees. He also stated that he did not make
any statement to the Investigating Officer regarding the accused
women grabbing the testicles of the deceased. He stated that
Niyaj first struck the deceased on his head with a spade handle
when the deceased fell down, Riyaj struck only one lathi blow on
his chest. The accused persons Ajmtulnisha and Kismatulnisha
were not caused injury by any one.
14. PW-3, Alimunnisha , daughter of deceased, has deposed that
she was present inside the house at 6:30 A.M. when she heard
verbal abuse near the hand pump regarding child defecation, her
father tried to object Ajmtulnisha and Kismatulnisha, then they
grappled the testicles of her father. Niyaj hit her father's head with
a spade handle and Riyaj hit him with a lathi, her father fell down,
he got injured and there was bleeding from injury and thereafter
he became unconscious and scummed. She further stated that
there was no child at her home at that time. She further denied to
the suggestion that she is hiding her nephew’s age who was
present in the house at that time. She reiterated that Niyaj struck
her father's head with a spade. She also stated the hand pump is
outside at the accused's door.
15. PW-4 Dr. R.V. Singh deposed that he had conducted the post-
mortem of dead body of deceased Mohd. Sharif on 01.10.1993
he and found the following injuries:
Anti-mortem injuries:
1. A lacerated wound measuring 9 cm x 2 cm bone deep on
the left side of the scalp above the eyebrow.
2. Abrasion marks (7 cm x 1 cm) on the right forearm.
Internal Examination:-

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Criminal Appeal No. 566 of 1999
1. Large blood clot present beneath Injury No. 1. The frontal
bone and parietal bone under Injury No. 1 were fractured.
Brain membranes were congested and torn. Left frontal lobe
of the brain was lacerated.
2. The entire left side of the brain was covered with blood
clots. Brain on both sides was congested.
3. Lungs on both sides were congested. Heart was empty,
weighing 180 grams. Teeth present: 16/16. Stomach was
empty. Small intestine contained gases. Large intestine
contained fecal matter and gases. Liver was congested.
Gallbladder was full. Spleen congested, weight 60 grams.
Both kidneys congested, weight 160 grams.
Cause of death:-
Due to coma resulting from head injuries. The injuries were
about one day old. The death of the deceased occurred due
to Injury No. 1.
16. He further stated in his Cross-Examination that Injury No. 1 is not
possible by falling on stony ground or bricks during a scuffle. The
margins of a lacerated wound during assault are irregular. He
stated that he had not written in post-mortem report that the
margins of the lacerated wound were irregular. Injury No. 1 was 7
cm x 2 cm bone deep. At the time of the post-mortem report, no
injury on the testicle was found. Only 2 injuries on the deceased's
body during the autopsy were found. He also stated that time of
death could vary by 2 to 3 hours on either side. During autopsy,
no foreign material in the teeth indicating datuan (used for
brushing teeth) was found.
17. PW-5 Head Constable Chhotan Yadav deposed on the basis of
written Taharir given by the complainant, he had lodged Chik FIR,
Ex. Ka-3 on 30.09.1993 at 8:30 A.M and also entered it into GD
Ex. Ka-4. He denied to the suggestion that the FIR was anti-
timed.
18. PW-6 Sub Inspector Chandravati Rai, the Investigating Officer
deposed that he inspected the crime scene on 30.09.1993,
prepared site map (Ex. Ka-5), collected blood-stained and plain

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Criminal Appeal No. 566 of 1999
soil (Ex. Ka-6), recorded witness’s statements and after
concluding investigation, submitted the charge sheet (Ex. Ka-7).
He further stated that SI Ganga Prasad had prepared the inquest
report (Panchayatnama, Ex. Ka-8).
19. On his Cross-Examination he stated that no datuan twig was
found at the place of occurrence. He further stated that PW-1-
Raees had stated during investigation that both women grabbed
Sharif's private part and knocked him to the ground.
20. Statements of the accused persons were recorded under Section
313 Cr.P.C., wherein they denied the allegations, alleging false
implication due to enmity. It was stated by Ajmtulnisha and
Kismatulnisha that an altercation had taken place among them
with regard to defecation of a child in the drain near their house,
while the deceased began hurling abuses and hitting them with
lathi and in their defence they hit him with brick because of which
he got injured.
21. One defence witnesses Dr. S.S. Tiwari DW-1 has been
examined on behalf of accused persons, who deposed that on
02.10.1993, he was posted as Medical Officer at District Hospital
Faizabad and examined the injuries of Smt. Kismatulnisha, aged
about 35 years. The following injuries were found on her body:
1. Lacerated wound 2.5 cm x 0.15 cm scalp deep, present
on the left side of the head, 11 cm above the left ear, with
clotted blood.
2. Complaint of pain on the left elbow; no visible injury.
Doctor had advised for X-ray of injury No. 1. The injury was
caused by a blunt weapon (kundalay) and was approx. two
days old.

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22. On the same day, at 10:45 A.M., he also examined the injuries of
Ajmatulnisha, aged about 40 years. The following injuries were
found on her body:
1. Blue mark (contusion) 8 cm x 3 cm, 13 cm below the right
knee; color blue.
2. Blue mark (contusion) 5 cm x 1.5 cm on the left leg, 10 cm
below the knee; color blue.
23. He further stated that all injuries were simple in nature, caused by
a blunt weapon (kundalay), and were approximately two days old.
These injuries could have occurred on 30.09.1993 at 06:30 A.M.
The injuries on both injured persons could have been caused by
lathis. These injuries were within 2 days, i.e., 48 hours. He further
stated that these injuries are of a superficial nature, but can
extend deep inside.
24. After having heard learned counsel for the parties and perusal of
material available on record, the learned trial court passed the
impugned judgment and order observing that prosecution has
become successful in proving its case against the accused-
appellants, Ajmtulnisha and Kismatulnisha for the offence under
Section 323/34 of the IPC, while against Niyaj and Riyaj for the
offence under Section 302/34 of the IPC and on that ground they
were convicted and awarded the sentence as aforesaid.
25. Being aggrieved and dissatisfied from the impugned judgment
and order, this criminal appeal has been filed.
SUBMISSIONS OF LEARNED COUNSEL FOR THE
APPELLANTS:
26. Learned counsel for the appellants submits that there is material
contradictions in the testimony of the prosecution witnesses and
their evidence do not inspire confidence. Despite that, the learned
trial court relied upon them and passed the impugned judgment
and order, which is against the law. He further submits that

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Criminal Appeal No. 566 of 1999
prosecution story is not correct and true version has been
prevented by the prosecution. He further submits that initially
incident had been started when deceased inflicted blows on
Ajmtulnisha and Kismatulnisha and consequently, they suffered
injuries, which were corroborated by the defence witnesses S.S.
Tiwari (DW-1) but the prosecution has not explained the injuries
sustained by the accused-appellants Ajmtulnisha and
Kismatulnisha. He further submits that since the prosecution has
failed to explain the injuries sustained by Ajmtulnisha and
Kismatulnisha, then it is apparent that true genesis of the
occurrence has been suppressed by the prosecution. He further
submits that while the deceased caused injuries to Ajmtulnisha
and Kismatulnisha, then on using of their right of private defence,
they pelted stones and pieces of bricks over the deceased. He
also submitted that the alleged incident occurred suddenly in the
passion of heat which was without any prior consultation. He next
submitted that prosecution has failed to prove its case for
intentionally causing death of the deceased by the accused
persons. He also submitted that to take the recourse of the right
of private defence, it is not required to be pleaded by the accused
persons by way of producing any defence witness and if from the
facts and circumstances it emerges, then it casts a duty upon the
court to consider the same and thereafter any conclusion could
be drawn, but the learned trial court did not consider this aspect
in correct perspective and erroneously declined the right of
private defence which had accrued to accused persons at the
time of alleged incident. On the above grounds, learned counsel
for the appellants submitted that the impugned judgment and
order passed by the learned trial court is erroneous and perverse,
which is liable to be set aside and the present appeal is liable to
be allowed.
27. Learned counsel for the appellants has further submitted that self
preservation is the prime instinct of every human being. The right

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Criminal Appeal No. 566 of 1999
of private defence is a recognized right in the criminal law,
therefore, Section 96 of the Indian Penal Code, 1860 provides
that nothing is an offence which is done in the exercise of the
right of private defence.
28. To fortify his submissions, learned counsel for the appellants has
relied on the judgment of Hon’ble Apex Court rendered in the
case of James Martin Vs. State of Kerla reported in [AIROnline
2003 SC 829] , wherein it has been held as under:
“1. Self-preservation is the prime instinct of every human
being. The right of private defence is a recognized right in
the criminal law. Therefore, Section 96 of Indian Penal
Code, 1860 (in short ’the IPC’) provides that nothing is an
offence which is done in the exercise of the right of private
defence. The question is, as happens in many cases, where
exercise of such rights is claimed, whether the "Lakshman
Rekha", applicable to its exercise has been exceeded.
Section 99 IPC delineates the extent to which the right may
be exercised.”
29. Learned counsel for the appellants has further relied upon Paras
22 and 40 of the judgment of Hon’ble Apex Court rendered in the
case of Suresh Singhal Vs. State (delhi Administration)
reported in [AIROnline 2017 SC 532] , which on reproduction
read as under:
22. The right of private defence is contemplated by Section
97 of IPC which reads as follows:-
“Section 97. Right of private defence of the body and of
property.— Every person has a right, subject to the
restrictions contained in section 99, to defend—First — His
own body, and the body of any other person, against any
offence affecting the human body; Secondly —The property,
whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the
definition of theft, robbery, mischief or criminal trespass, or
which is an attempt to commit theft, robbery, mischief or
criminal trespass.”
In Darshan Singh vs. State of Punjab and Another, this court
laid down the following principles which emerged upon the

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Criminal Appeal No. 566 of 1999
careful consideration and scrutiny of a number of judgments
as follows:-
“58. The following principles emerge on scrutiny of the
following judgments:
(i) Self-preservation is the basic human instinct and is duly
recognised by the criminal jurisprudence of all civilised
countries. All free, democratic and civilised countries
recognise the right of private defence within certain
reasonable limits.
(ii) The right of private defence is available only to one who is
suddenly confronted with the necessity of averting an
impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the
right of self-defence into operation. In other words, it is not
necessary that there should be an actual commission of the
offence in order to give rise to the right of private defence. It
is enough if the accused apprehended that such an offence
is contemplated and it is likely to be committed if the right of
private defence is not exercised.
(iv) The right of private defence commences as soon as a
reasonable apprehension arises and it is coterminous with
the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to
modulate his defence step by step with any arithmetical
exactitude.
(vi) In private defence the force used by the accused ought
not to be wholly disproportionate or much greater than
necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead
self-defence, it is open to consider such a plea if the same
arises from the material on record.
(viii) The accused need not prove the existence of the right of
private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only
when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of
losing his life or limb may in exercise of self-defence inflict
any harm even extending to death on his assailant either
when the assault is attempted or directly threatened.
40. Hence, we allow this appeal partly and modify the
impugned judgment and order passed by the High Court to
the extent that the conviction of the appellant – Suresh
Singhal under section 302 IPC for murder of Kishan Lal is
set aside and his conviction under section 304 IPC is
maintained. Since the appellant has already undergone a

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Criminal Appeal No. 566 of 1999
sentence of 13 ½ years as on date, we sentence him under
section 304 IPC to the period already undergone. The
appellant is in jail. He be released forthwith from the custody,
if not required in any other case.”
30. Learned counsel for the appellants further submits that in a case
under Section 302 of the IPC, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence or
in the course of altercation is very important but the prosecution
has failed to explain the same.
31. In support of his submissions, learned counsel for the appellants
has placed reliance on Para nos. 11, 16 and 17 of the judgment
rendered in the case of Lakshmi Singh and Others etc. Vs.
State of Bihar reported in [1976 CRI. L.J.1736], which are
quoted as under:
"11.…………………..In State of Gujarat v. Bai Fatima
(Criminal Appeal No. 67 of 1971 decided on March 19, 1975)
(reported in AIR 1975 SC 1478) one of us (Untwalia, J.,)
speaking for the Court, observed as follows:
"In a situation like this when the prosecution fails to explain
the injuries on the person of an accused depending on the
facts of each case, any of the three results may follow :
(1)That the accused had inflicted the injuries on the
members of the prosecution party in exercise of the right of
self defence.
(2) It makes the prosecution version of the occurrence
doubtful and the charge against the accused cannot be held
to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
The facts of the present case clearly fall within the four
corners of either of the first two principles laid down by this
judgement. In the instant case, either the accused were fully
justified in causing the death of the deceased and were
protected by the right of private defence or that if the
prosecution does not explain the injuries on the person of the
deceased the entire prosecution case is doubtful and the
genesis of the occurrence is shrouded in deep mystery,
which is sufficient to demolish the entire prosecution case.
It seems to us that in a murder case, the non-explanation of
the injuries sustained by the accused at about the time of the
occurrence or in the course of altercation is a very important

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Criminal Appeal No. 566 of 1999
circumstance from which the Court can draw the following
inferences:
(1)That the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true
version.
(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3)that in case there is a defence version which explains the
injuries on the person of the accused it is rendered probable
so asto throw doubt on the prosecution case.
16. Finally we might stress, even at the risk of repetition, that
the genesis and the origin of the present occurrence appears
to be shrouded in deep mystery. The dramatic manner in
which the assault is said to have started and the appearance
of the accused led by Jagdhari Singh without any rhyme or
reason and their assault on persons against whom they had
neither any concern or animus introduces an element of
inherent improbability in the case. According to the
prosecution the main cause of the assault was the refusal of
the deceasedChulhai Singh to demolish the Marwa which
was constructed on the occasion of the marriage of Jaiwanti
a daughter of the son of Chulhai Singh. Thereis no evidence
to show that there was bad blood between Ramsagar Singh
and Dasrath Singh on the one hand and their cousins
Chulhai Singh and Ram Asrey on the other. On the other
hand the evidence shows that even after the partition both
the groups of the family were living in different portions of the
same house, the courtyard being common. PW-6 Dasain
Singh clearly admits that at the time of fixing the Marwa he
had no quarrel with Dasrath Singh or Ramsagar Singh, i.e.
about 3 days before the occurrence. If the relations between
the parties were so cordial only 3 days before the
occurrence, we fail to see how Dasrath Singh and Ramsagar
Singh made a complete somersault and picked up a quarrel
over the demolishing of a Marwa when they knew full well,
as PW-1 would have us believe, that it was customary that
the Marwa remained in its original position until a period of
11/2months had elapsed. After all Dasrath Singh and
Ramsagar Singh also belonged to the same family and were
bound to respect the family custom. It is difficult to believe
that even if Dasrath Singh andRamsagar Singh would raise
any objection, they would do so on the day on which
Chaudhari ceremony of the marriage of Jaiwanti was held. It
also sur-passes our comprehension that even if a petty
objection was raised, it would culminate in the murder of two
close relations by the accused Dasrath Singh and Ramsagar
Singh with the aid of the other appellants. So far as the five
appellants, namely, Jagdahri Singh, Jagdish Singh, Lakshmi
Singh, Ramprasad Sah and Chhathu Singh are concerned,
they had neitherany animus against the prosecution party

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Criminal Appeal No. 566 of 1999
nor any friendship with the accused Dasrath Singhand
Ramsagar Singh and it is impossible to believe that these
five persons would join hands with Dasrath Singh and
Ramsagar Singh in the nefarious plan to kill two persons
without any provocation, without any earthly reason and
without any pertinent occasion. On the other hand the
preponderance of probabilities seemsto indicate that theses
five appellants had been falsely implicated by P.Ws 1 to 4
who were their sworn enemies and who must have made it a
condition precedent for supporting the evidence ofP.W.6, if
the five appellants are also brought in. In this view of the
matter, the prosecution case itself becomes wholly
improbable. Furthermore, if P.Ws. 1 to 4 and 6 could go to
the extent of falsely implicating the five appellants headed by
Jagdhari Singh without theirhaving participated in the
occurrence, then the entire fabric of the prosecution case
would collapse, and the fundamental part of the prosecution
case would have to be disbelieved. It was, however,
contended by the State that there was no reason to
disbelieve the evidence with respect to Dasrath Singh and
Ramsagar Singh, even if the other five appellants be
acquitted. Where all the witnesses enter into a conspiracy to
implicate five innocent persons in a murder case, then the
backbone of the prosecution is broken, and it would be
difficult for the Court to rely on such evidence to convict a
single accused, particularly when the prosecution does not
give and explanation for the grievous and other serious
injuries on the person of Dasrath Singh. This is a case where
it is not possible to disengage the truth firm falsehood, to sift
the grain firm the chaff. The truth and falsehood are so
inextricably mixed together that it is difficultto separate them.
Indeed if one tries to do so, it will amount to reconstructing a
new case for the prosecution which cannot be done in a
criminal case.
17. Thus in view of the inherent improbabilities, the serious
omissions and infirmities, the interested or inimical nature of
the evidence and other circumstances pointed out by us, we
are clearly of the opinion that the prosecution has miserably
failed to prove the case against the appellants beyond
reasonable doubt. Normally this Court does not interfere in
an appeal by special leave with concurrent finding of fact, but
this is one of these cases where the judgement of the High
Court is manifestly perverse and where the High Court has
not considered important circumstances which completely
demolishthe prosecution case. In fact the High Court has
hardly made any real attempt to analyse or discuss the
evidence and has merely affirmed the finding of the Sessions
Judge by narrating the evidence relied upon by it. We have
already pointed out that on one of the most important points
arising in a criminal trail, namely, the non-explanation of the
injuries on the person of the accused by the prosecution, the
High Court has not only committed an error of fact but an
error of law by showing a lack of proper appreciation of the
principles decided by this Court. For these reasons,
therefore, we think there are special circumstances in the

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Criminal Appeal No. 566 of 1999
present case which have compelled us to interfere in this
appeal by special leave.”
32. Learned counsel for the appellants has further cited the judgment
of Hon’ble Apex Court in the case of Ram Lal Vs. Delhi
Administration reported in [1973 CRI. L.J. 17] and he relied on
para nos. 5 and 8 of the judgment which are reproduced as
under:
“5. The whole case seems to have proceeded on the
assumption that only one blow was given on the head and
that was given by appellant Ram Lal. The Additional
Sessions Judge while framing the additional charge against
the appellant for the substantive offence under S. 302-IPC
mentioned that the evidence as recorded before the
Committing Court disclosed that the appellant had given a
fatal lathi stick blow on the head of Har Lal. The charge
against him also as framed by him stated that the appellant
had intentionally caused the death "by causing lathi blow" on
the head of the deceased. The High Court also assumed that
only one lathi blow was given on the head of the deceased
and that blow proved fatal. Now all these assumptions are
obviously not correct.
8. No attempt was made to identify the internal injury with
either or both the external injuries found on the head. It is
quite possible on that evidence to infer that only one of these
two injuries may have been responsible for death or both.
The difficulty then arises which was the injury caused by the
appellant. The finding of the High Court was that the
appellant Ram Lal had given only one blow with the stick on
the head and not more than one. In that case it will be very
difficult to say whether the blow given by him was the one
which ultimately proved to be fatal. Mr. Khanna, appearing
on behalf of the Delhi Administration, contended that since
the High Court came to the definite conclusion that the other
assailants had not given any blow on the head of the
deceased it must be assumed that both these blows had
been given by Ram Lal, appellant. But that would be contrary
to the finding of the High Court which has specifically come
to the conclusion that only one blow with the stick had been
given by the appellant on the head of the deceased. It was
essential in this case, in order to bring home the offence of
murder to the appellant, that the lathi blow given by him on
the head had proved fatal. Since the evidence clearly
discloses that two lathi blows had been given on the head
and there is no evidence which of these two was given by
the appellant, the benefit of doubt must go to him. He may
have given the fatal blow or he may have given the blow
which did not prove fatal. In these circumstance, the
appellant's conviction under S. 302-IPC was plainly incorrect.

16
Criminal Appeal No. 566 of 1999
He and his companions had the common intention to cause
grievous hurt and hence he can be convicted only under
Section 325 r/w Section 34. Since in pursuance of the
common intention he had given a blow with a lathi on the
head which is a vital part of the body he is not entitled to the
same consideration as the others in the matter of sentence
because the others had given blows on non-vital parts.
Therefore, we set aside the conviction under S. 302-IPC and
convict the appellant under S. 325 r/w 34 and sentence him
to 5 years rigorous imprisonment in respect of the offence
committed with regard to deceased Har Lal. We do not
interfere with the rest of order passed against him by the
High Court.”
SUBMISSIONS OF LEARNED AGA FOR THE STATE
33. Per contra, learned AGA for the State has submitted that before
the learned trial court, the prosecution has adduced sufficient
evidence to prove its’ case beyond reasonable doubt. Learned
trial court after considering the entire facts, evidences and
circumstances in its entirety, rightly observed that the prosecution
has been successful in proving the charge levelled against the
accused persons. He next submits that right of private defence
can only accrue when there is apprehension of causing grievous
hurt or death to life and property arises. But in the present case,
when the deceased was knocked down by Ajmtulnisha and
Kismatulnisha, then there was no occasion for accruing the right
of private defence. He further submits that accused persons were
the aggressors who had assaulted the deceased and at that time,
the accused persons Niyaj and Riyaj were having deadly
weapons from which they inflicted blows upon the deceased.
34. Learned AGA further submits that accused persons Niyaj and
Riyaj had inflicted blows on the vital part of the body of deceased
and the weapons used were handle of spade and Lathi and they
were having intention to kill the deceased. Therefore, the learned
trial court has correctly convicted them for the charge levelled
against them and there is no illegality or perversity in the
impugned judgment and order passed by the trial court and, as

17
Criminal Appeal No. 566 of 1999
such, the present criminal appeal is devoid of merits and is liable
to be dismissed.
35. To substantiate his contentions, learned AGA has relied upon the
following cases:
1.State of Madhya Pradesh V/s Ramesh
[2004LawSuit(SC)1364]
2. Gopal & Anr V/s State of Rajasthan [2013LawSuit(SC)38]
3. Vishvas Aba Kurane V/s State of Maharashtra
[1978LawSuit(SC)18]
4. Gunnana Pentayya @ Pentadu V/s State of Andhra
Pradesh [2008LawSuit(SC)1296]
5. Anil Kumar V/s State of Uttar Pradesh
[2004LawSuit(SC)1045]
6. Raj Kumar Singh @ Raju @ Batya V/s State of Rajasthan
[2013LawSuit(SC)408]
36. We have heard learned counsel for the parties and perused the
material available on record.
37. For determination of appeal, the following point is formulated:
“Whether findings and observations given by the learned trial court are
erroneous and perverse and, consequently, the conviction and
sentence is likely to be set aside ?”
38. To arrive the right conclusion of the case, firstly we have to
consider the manner of assault.
39. Dr. R.V. Singh (PW-4), who had conducted the autopsy of the
dead body of the deceased, deposed that he found lacerated
wound in the shape of 9 cmx 2 cm x bone deep longitudinally
placed left side scalp 7 cm above eyebrow in part partial area and

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Criminal Appeal No. 566 of 1999
another injury of linear abrasion 7 cm x 1 cm on left arm was
found and cause of death was opined due to head injury. As per
statement of Raees (PW-1) Mohammad Sharif @ Babban (PW-2)
and Alimunnisha (PW-3), the accused-appellant Niyaj inflicted
blows with the handle of a spade, while accused-appellant Riyaj
inflicted blows with lathi upon the deceased.
40. Accused persons did not deny the injuries sustained by the
deceased. They only disputed that the injuries sustained by the
deceased were not caused by appellants convicts Niyaj and Riyaj
through handle of a spade and lathi. In this regard, appellants-
convicts Ajmtulnisha and Kismatulnisha had given statements
under section 313 Cr.P.C. that they were pelting stones in their
right of private defence, which caused injuries to Mohd. Sharif.
However, appellants Riyaj and Niyaj did not utter a single word
that how the deceased suffered injuries. They only stated that
being son of Ajmtulnisha and Kismatulnisha, they have falsely
been implicated.
41. Thus, from the evidence adduced by the prosecution and the
statements given by the accused persons and from the cross-
examination of the prosecution witnesses, it has been established
that death of the deceased Mohammad Sharif was homicidal.
42. Now the question arises that whether right of private defence had
accrued to the appellants in the given circumstances.
43. In this regard, Hon’ble Apex Court in the case of Madhya
Pradesh Vs. Ramesh reported in [2004 Law Suit (SC)1364]
held that:
“Section 96 of the Indian Penal Code and Section 105 of the
Indian Evidence Act, 1872 do not define the expression right
of private defence'. It merely indicates that nothing is an
offence which is done in the exercise of such right. Whether

19
Criminal Appeal No. 566 of 1999
in a particular set of circumstances, a person legitimately
acted in the exercise of the right of private defence is a
question of fact to be determined on the facts and
circumstances of each case. No test in the abstract for
determining such question can be laid down. In determining
this question of fact, the Court must consider all the
surrounding circumstances. It is not necessary for the
accused to plead in so many words that he acted in self-
defence. If the circumstances show that the right of private
defence was legitimately exercised, it is open to the Court to
consider such a plea Section 105 of the Indian Evidence
Act, 1872, the burden of proof is on the accused, who sets
up the plea of self-defence, and, in the absence of proof, it
is not possible for the Court to presume the truth of the plea
of self-defence. The Court shall presume the absence of
such circumstances. It is for the accused to place necessary
material on record either by himself adducing positive
evidence or by eliciting necessary facts from the witnesses
examined for the prosecution.
Taking the plea of the right of private defence is not
necessarily required to call evidence; he can establish his
plea by reference to circumstances transpiring from the
prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the
prosecution evidence, and not a question of the accused
discharging any burden. Where the right of private defence
is pleaded, the defence must be a reasonable and probable
version satisfying the Court that the harm caused by the
accused was necessary for either warding off the attack or
for forestalling the further reasonable apprehension from the
side of the accused. The burden of establishing the plea of
self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record
The accused need not prove the existence of the right of
private defence beyond reasonable doubt. It is enough for
him to show as in a civil case that the preponderance of
probabilities is in favour of his plea - A plea of right of private
defence cannot be based on surmises and speculation.
While considering whether the right of private defence is
available to an accused, it is not relevant whether he may
have a change to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private
defence is available to an accused, the entire incident must
be examined with care and viewed in its proper setting To
claim a right of private defence extending to voluntary
causing of death, the accused must show that there were
circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that
he had a right of private defence which extended to causing
of death- Sections 102 and 105, IPC deal with
commencement and continuance of the right of private
defence of body and property respectively. The right

20
Criminal Appeal No. 566 of 1999
commences, as soon as a reasonable apprehension of
danger to the body arises from an attempt, or threat, or
commit the offence, although the offence may not have
been committed but not until there is that reasonable
apprehension. The right lasts so long as the reasonable
apprehension of the danger to the body continues, In order
to find whether right of private defence is available or not,
the injuries received by the accused, the imminence of
threat to his safety, the injuries caused by the accused and
the circumstances whether the accused had time to have
recourse to public authorities are all relevant factors to be
considered In moments of excitement and disturbed mental
equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to
him where assault is imminent by use of force, it would be
lawful to repel the force in self-defence and the right of
private-defence commences, as soon as the threat
becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles
or microscopes to detect slight or even marginal
overstepping. Due weightage has to be given to, and hyper
technical approach has to be avoided in considering what
happens on the spur of the moment on the spot and
keeping in view normal human reaction and conduct, where
self-preservation is the paramount consideration. But, if the
fact situation shows that in the guise of self-preservation,
what really has been done is to assault the original
aggressor, even after the cause of reasonable apprehension
has disappeared, the plea of right of private-defence can
legitimately be negatived.
Dealing with the plea has to weigh the material to conclude
whether the plea is acceptable. It is essentially, as noted
above, a finding of fact Situations have to be judged from
the subjective point of view of the accused concerned in the
surrounding excitement and confusion of the moment,
confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the question
as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be
inappropriate, to adopt tests by detached objectivity which
would be so natural in a Court room, or that which would
seem absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat to
himself cannot be expected to modulate his defence step by
step with any arithmetical exactitude of only that much
which is required in the thinking of a The right of private
man in ordinary times or under normal circumstances
defence is essentially a defensive right circumscribed by the
governing statute i.e. the IPC, available only when the
circumstances clearly justify it. It should not be allowed to
be pleaded or availed as a pretext for a vindictive,
aggressive or retributive purpose of offence. It is a right or
defence, not of retribution, expected to repel unlawful

21
Criminal Appeal No. 566 of 1999
aggression and not as retaliatory measure. While providing
for exercise of the right, care has been taken in IPC not to
provide and has not devised a mechanism whereby an
attack may be a pretence for killing. A right to defend does
not include a right to launch an offensive, particularly when
the need to defend no longer survived.
44. The right of private defence does not include a right to launch an
offensive, particularly when the need to defend no longer
survived. However, there are some minor or superficial injuries
suffered by the accused that shall not affect a credible and cogent
prosecution version even if the prosecution has not explained the
injuries.
45. In view of the principle laid down by Hon’ble Apex Court as
aforesaid and perusal of material available on record, it reveals
that the incident began when the deceased was brushing his
teeth at a tap of Jal Nigam. The convicts Ajmtulnisha and
Kismatulnisha were hurling abuses since some child had
defecated in the drain in front of their house. When the deceased
objected to they hurling abuses then they knocked down the
deceased grappling his testicles. From the statement of Raees
(PW-1), it emerged that the deceased was not having any
weapon in his hands at that time. On his cross-examination, no
such fact has emerged that deceased started to beat the
appellants Ajmtulnisha and Kismatulnisha. In this regard, cross-
examination of Raees (PW-1) is relevant, wherein he deposed
that on the point of defecation, no altercation had taken place
earlier. No prior enmity existed among them. He also stated that
prior to the said incident, deceased was brushing his teeth with
neem ki daatun and, on the suggestion given by the defence side,
he has stated that on the issue of defecation altercation had not
taken place among his sister and accused persons. He also
denied the suggestion that his deceased father started to beat
Ajmtulnisha and Kismatulnisha and in defence they were pelting
stones, as a result of which the deceased suffered injuries.

22
Criminal Appeal No. 566 of 1999
46. Another witness Mohammad Sharif @ Babban Riyaj (PW-2) has
also stated that Ajmtulnisha and Kismatulnisha knocked down
the deceased Mohd. Sharif by grappling his testicles due to which
deceased’s lungi had opened and then deceased sat down. In his
cross-examination, he has denied the suggestion that the
accused appellants Ajmtulnisha and Kismatulnisha were beaten
by the deceased.
47. Ajmtulnisha (PW-3) , who was the injured witness, had stated
that on the point of defecation in the drain in front of house of
accused, Ajmtulnisha and Kismatulnisha were hurling abuses and
when the deceased objected, then they after grappling the
deceased, knocked him down. On being cross-examined, no
such material fact emerged out which may reveal that the
deceased was having any object or weapon in his hands at the
time of alleged incident or he used any weapon.
48. Thus, from the evidence of above witnesses, it is established that
at the time of alleged incident, deceased was brushing his teeth
and he was having no weapon in his hands.
49. Now the next question arises that when deceased was not armed
with any weapon or object of assault then how apprehension of
death or grievous hurt arises?
50. On perusal of material available on record, it is evident that in the
statement under Section 313 of the Cr.P.C., the appellants
Ajmtulnisha and Kismatulnisha had stated that in self defence
they pelted brick stones. It is true that to invoke the right of private
defence, it is not necessary to disclose the specific averment by
the accused persons in their statements or adducing the defence
in this regard.

23
Criminal Appeal No. 566 of 1999
51. Learning counsel for appellants emphasized on the point that at
the time of the alleged incident, Ajmtulnisha and Kismatulnisha
had suffered injuries and no explanation has been offered from
the side of the prosecution. Thus, injuries found on the person of
the appellants, which shows that they were initially assaulted,
then on their defence, they had pelted brick stones. To
substantiate, his contention, learned counsel submits that the
accused persons had adduced the defence witness, namely, Dr.
S.S. Tiwari (DW-1) who had deposed that on 02.10.1993, he was
posted as medical officer in the District Hospital, Faizabad and on
that day he had medically examined Kismatulnisha at 10:30 A.M.
and found the following injuries:
(i) Lacerated wound 2.5 cm x 0.15 cm x scalp deep of the
head and above the 11 c.m. from the left ear hematoma was
present.
(ii) Complaint of pain on the left elbow, no visible injuries, no
visible injury was found.
52. Doctor has opined that above injuries were caused by hard and
blunt object and duration was two days old and for injury no. 1, X-
ray was advised.
53. On the same day at about 10:45 A.M., appellant- Ajmtulnisha was
medically examined, wherein following injuries were found on her
body.
(i) Contusion 8 cm x 3 cm and 13 cm below in the right knee.
(ii) Contusion 5 cm x 1.5 below the below 10 cm of the left
knee.
54. Both the injuries were simple which were caused by hard and
blunt object. On his cross examination, doctor has admitted that
all these injuries were superficial in nature.

24
Criminal Appeal No. 566 of 1999
55. On the basis of these injuries, learned counsel for the appellants
tried to establish that when Ajmtulnisha and Kismatulnisha had
sustained injuries then they exercised their right of defence.
56. In the case of James Martin verses state of Kerala (Supra)
Hon’ble Apex Court held as under:-
“17. In order to find whether right of private defence is
available or not, the injuries received by the accused, the
imminence of threat to his safety, the injuries caused by the
accused and the circumstances whether the accused had
time to have recourse to public authorities are all relevant
factors to be considered. Similar view was expressed by this
Court in Biran Singh v. State of Bihar (AIR 1975 SC 87).
(See: Wassan Singh v. State of Punjab (1996) 1 SCC 458,
Sekar alias Raja Sekharan v. State represented by
Inspector of Police, T.N. (2002 (8) SCC 354).
18. As noted in Butta Singh v. The State of Punjab (AIR
1991 SC 1316), a person who is apprehending death or
bodily injury cannot weigh in golden scales in the spur of
moment and in the heat of circumstances, the number of
injuries required to disarm the assailants who were armed
with weapons. In moments of excitement and disturbed
mental equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in
retaliation commensurate with the danger apprehended to
him where assault is imminent by use of force, it would be
lawful to repel the force in self-defence and the right of
private-defence commences, as soon as the threat
becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles
or microscopes to detect slight or even marginal
overstepping. Due weightage has to be given to, and hyper
technical approach has to be avoided in considering what
happens on the spur of the moment on the spot and
keeping in view normal human reaction and conduct, where
self-preservation is the paramount consideration. But, if the
fact situation shows that in the guise of self-preservation,
what really has been done is to assault the original
aggressor, even after the cause of reasonable apprehension
has disappeared, the plea of right of private-defence can
legitimately be negatived. The Court dealing with the plea
has to weigh the material to conclude whether the plea is
acceptable. It is essentially, as noted above, a finding of
fact.
19. The right of self-defence is a very valuable right, serving
a social purpose and should not be construed narrowly.
(See Vidhya Singh v. State of M.P., AIR 1971 Supreme
Court 1857 ). Situations have to be judged from the

25
Criminal Appeal No. 566 of 1999
subjective point of view of the accused concerned in the
surrounding excitement and confusion of the moment,
confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the question
as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by
detached objectivity which could be so natural in a Court
room, or that which would seem absolutely necessary to a
perfectly cool bystander. The person facing a reasonable
apprehension of threat to himself cannot be expected to
modulate his defence step by step with any arithmetical
exactitude of only that much which is required in the thinking
of a man in ordinary times or under normal circumstances.”
57. In the case of State of Gujarat Vs. Bai Fatima reported in
AIR1975 SC 1478 in which Hon’ble Apex Court discussed the law
laid down as under:
“…………….(1)That the accused had inflicted the injuries on
the members of the prosecution party in exercise of the right
of self defence.
(2) It makes the prosecution version of the occurrence
doubtful and the charge against the accused cannot be held
to have been proved beyond reasonable doubt.
(3) It does not affect the prosecution case at all.
………….(1)That the prosecution has suppressed the
genesis and the origin of the occurrence and has thus not
presented the true version.
(2) That the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most
material point and therefore their evidence is unreliable;
(3) That in case there is a defence version which explains
the injuries on the person of the accused it is rendered
probable so as to throw doubt on the prosecution case.”
58. In view of the above and on perusal of the record, as discussed
earlier that the deceased was not having any weapon in his
hands at the time of the alleged incident and he was brushing his
teeth at a tap of Jal Nigam when accused appellants Ajmtulnisha
and Kismatulnisha, after grappling his private part, knocked him
down and thereby his lungi opened and he sat down, then the
question arises as to how it can be accepted that there was any
apprehension of grievous hurt or death to the appellants. On
applying all the principles and guidelines given by Hon’ble the

26
Criminal Appeal No. 566 of 1999
Apex court, this stand taken by the accused persons did not
squarely fit in the facts and circumstances of the present case.
Although it is true that the appellants-convicts Ajmtulnisha and
Kismatulnisha also suffered injuries but they were not grievous in
nature, as doctor opined that those injuries are superficial in
nature and as per the law laid down in the case of Ramesh
(supra) , where injuries are superficial in nature, these shall not
affect a credible and cogent prosecution version.
59. The next point to be discussed is as to whether the testimony of
the prosecution witnesses of the facts are cogent and credible
which inspire confidence?
60. It has been discussed earlier that prosecution witness
Alimunnisha (PW-3), an eye witness of the incident, whose
evidence has already been analyzed, in the cross examination of
the said witness, nothing adverse has emerged out which may
help the accused persons. Her presence is also not controverted
and her testimony would be at a higher pedestal than other
witnesses.
61. Raees (PW-1), who is the son of the deceased, has narrated the
whole incident in his cross-examination. On being cross-
examined by the defence, he corroborated his earlier version as
he has stated that, upon hearing the noise, when he reached on
the spot, he saw that accused Niyaj having handle of spade and
accused Riyaz through Latthi were inflicting blows to the
deceased, although, he did not disclose the part of the body
which was affected by beating.
62. Apart from this, another witness Mohammad Sharif (PW-2), who
is the neighbour of the deceased, has also corroborated the
prosecution case, stating that Ajmtulnisha and Kismatulnisha
were hurling abuses and when the deceased objected, then they

27
Criminal Appeal No. 566 of 1999
grappled his testicles and knocked him down and thereafter
accused Niyaz inflicted blows with handle of spade and Riyaj with
lathi.
63. Here it is also pertinent to mention that those witnesses of the
facts are not residing far away from the place of occurrence, as
two of them PW-1 and PW-3 were kith and kin of the deceased,
while PW-2 was residing 50 meters away from the residence of
deceased. Thus, their presence on the spot cannot be doubted
and there are no material discrepancies which arose in their
testimony. Thus, their testimony inspires confidence.
64. Learned counsel for appellants has vehemently argued that the
accused persons had no common intention to kill the deceased
and the incident had taken place at the spur of moment in the
passion of heat. It is not a case of the prosecution that after
altercation, accused persons went to their home and came with
deadly weapons and then assaulted the deceased. He also
argued that the alleged offence is squarely covered in the
exception of Section 300 of IPC which comes in the category of
culpable homicide not amounting to murder. As is evident from
the record that one blow of handle of spade was infected on the
head of the deceased and one injury of lacerated wound was
found as anti-mortem injury and another injury which was in the
shape of linear abrasion was found on the left arm of the
deceased, which was caused by lathi and death of the deceased
was on account of head injury.
65. Before entering into the question of modifying the conviction from
Section 302 IPC to Section 304 IPC and thereby reducing the
sentence, it is expedient to refer to the settled legal principles laid
down by the Hon'ble Supreme Court.

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Criminal Appeal No. 566 of 1999
66. The Hon’ble Supreme Court in the case of Harendra Nath
Mandal vs. State of Bihar; (1993) 2 SCC 435 has held that
Section 304 does not create an offence but provides the
punishment for culpable homicide not amounting to murder. In
view of Section 299 of the Penal Code, 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. In view of
Section 300 of the Penal Code, except in cases covered by the
five exceptions mentioned therein, culpable homicide is murder. It
is well known that if a death is caused and the case is covered by
any one of the five exceptions of Section 300 then such culpable
homicide shall not amount to murder. Section 304 provides
punishment for culpable homicide not amounting to murder and
draws a distinction in the penalty to be inflicted in cases covered
by one of the five exceptions, where an intention to kill is present
and where there is only knowledge that death will be a likely
result, but intention to cause death or such bodily injury which is
likely to cause death is absent. To put it otherwise if the act of the
accused falls within any of the clauses (1), (2) and (3) of Section
300 but is covered by any of the five exceptions it will be
punishable under the first part of Section 304. If, however, the act
comes under clause (4) of Section 300 i.e. the person committing
the act knows that it is so imminently dangerous that it must, in all
probability, cause death but without any intention to cause death
and is covered by any of the exceptions, it will be punishable
under the second part. The first part of Section 304 applies where
there is guilty intention whereas the second part applies where
there is guilty knowledge. But before an accused is held guilty
and punished under first part or second part of Section 304, the
death must have been caused by him under any of the
circumstances mentioned in the five exceptions to Section 300,
which include death caused while deprived of power of self-

29
Criminal Appeal No. 566 of 1999
control under grave and sudden provocation, while exercising in
good faith the right of private defence of person or property, and
in a sudden fight in the heat of passion without premeditation. So
far the present case is concerned, when death itself had not been
caused, there was no occasion for convicting the appellant under
Section 304 of the Penal Code.
67. At this juncture, it would be apposite to refer to a decision of
Hon’ble Supreme Court in Kunwar Pal v. State of Uttarakhand,
(2014) 12 SCC 434 : (2014) 6 SCC (Cri) 778 , wherein the
Hon’ble Apex Court in a similar situation observed as under:
(SCC p. 438, paras 12 & 14).
“12. In these circumstances, we find that the intention of the
appellant to kill the deceased, if any, has not been proved
beyond a reasonable doubt and in any case the appellant is
entitled to the benefit of doubt which is prominent in this
case. It is not possible therefore to sustain the sentence
under Section 304 Part I IPC, which requires that the act by
which death is caused, must be done with the intention of
causing death or with the intention of causing such bodily
injury as is likely to cause death. Though it is not possible to
attribute intention it is equally not possible to hold that the
act was done without the knowledge that it is likely to cause
death. Everybody, who carries a gun with live cartridges and
even others know that firing a gun and that too in the
presence of several people is an act, is likely to cause
death, as indeed it did. Guns must be carried with a sense
of responsibility and caution and are not meant to be used
in such places like marriage ceremonies.
*
14. In the present case, we are of the view that the
appellant is guilty of committing the act which caused the
death of the deceased since the act was done with the
knowledge that is it likely to cause death within the meaning
of Section 304 Part II IPC. In the circumstances, the appeal
is allowed in part, however, we reduce the sentence
imposed upon the appellant to a period of 7 (seven) years
without making any alteration in the fine amount imposed by
the trial court and confirmed by the High Court [Kunwar Pal
v. State of Uttaranchal, 2012 SCC OnLine Utt 2972] .”

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Criminal Appeal No. 566 of 1999
68. The aforesaid view in Kunwar Pal (supra) was reiterated by the
Hon’ble Apex Court in Bhagwan Singh v. State of Uttarakhand,
(2020) 14 SCC 184, observing as follows:
“15. The facts and circumstances of the instant case,
however, do not permit to draw such a conclusion. We have
already rejected the prosecution version to the extent that
the appellant aimed at Smt Anita and then fired the shot(s).
The evidence on record contrarily shows that the appellant
aimed the gun towards the roof and then fired. It was an
unfortunate case of misfiring. The appellant of course
cannot absolve himself of the conclusion that he carried a
loaded gun at a crowded place where his own guests had
gathered to attend the marriage ceremony. He did not take
any reasonable safety measure, like to fire the shot in the
air or towards the sky, rather he invited full risk and aimed
the gun towards the roof and fired the shot. He was
expected to know that pellets could cause multiple gunshot
injuries to the nearby persons even if a single shot was
fired. The appellant is, thus, guilty of an act, the likely
consequences of which including causing fatal injuries to
the persons being in a close circuit, are attributable to him.
The offence committed by the appellant, thus, would
amount to “culpable homicide” within the meaning of
Section 299, though punishable under Section 304 Part II
IPC.”
69. Similarly, in Jaswant Singh vs. State of Uttarakhand, (2020) 14
SCC 184, the Hon'ble Apex Court reiterated the principles
governing the distinction between murder and culpable homicide
not amounting to murder based on sudden provocation, lack of
premeditation, and absence of intention to cause death.
70. In the present case as it is apparent that prior to beginning of the
marpit, altercation took place where Ajmatulnisha and
Kismatulnisha were hurling abuses due to defecation by a child
in front of the drain near her house and on objection made by the
deceased, the incident took place. It is also evident from the
record that injured persons were present on the spot. It is not a
case of prosecution that after altercation they went to their home
for taking the weapons or they returned from home having deadly
weapons in their hands. Thus, we do not find any glaring illegality

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or perversity in the basic factual findings arrived at by the trial
court. However, we note that the appellants and deceased were
neighbours and relatives. On the issue of defecation of a child in
front of Jal Nigam Tap, a sudden altercation took place and on
incitement the appellants caused injury to deceased with a lathi
and wooden handle which are not the deadly weapons.
71. It is noticeable that the incident occurred all of a sudden, as
earlier we have discussed that they did not return from the home
having any arms or deadly weapon but it demonstrates that the
incident took place all of a sudden in heat of passion, without any
pre-planning or pre-meditation and without any established prior
enmity between the appellant and deceased. From perusal of the
record, it also established that there were no repeated blows
thus, if the intention of the accused persons was to kill the
deceased then they would definitely have inflicted the blows upon
the deceased, but the blow was inflicted on the vital part of the
head of the deceased and frontal and parental bone was
fractured. Thus, it is established beyond reasonable doubt that
the appellants Riyaz and Niyaz caused the death of the deceased
fully knowing that such bodily injury caused by them is likely to be
cause death, but without intention to cause death. Therefore, we
are inclined to convert the conviction of the appellants Riyaz and
Niyaz from section 302 of the IPC to Part II of Section 304 of the
IPC.
72. Accordingly, the conviction and sentence of the appellants Riyaj
and Niyaj under section 302/34 of the IPC is set aside and same
is altered/modified to Part II of Section 304 of the IPC under
which they stand convicted.
73. Having convicted the appellants Riyaj and Niyaj under Part II of
Section 304 of the IPC, the next consideration is as to quantum of
punishment which is to be imposed under Part II of the Section

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Criminal Appeal No. 566 of 1999
304 of IPC. Section 304 provides that whoever commits culpable
homicide not amounting to murder shall be punished with
imprisonment for life, or imprisonment of either description for a
term which may extend to ten years and shall also be liable to
fine, if the act by which the death is caused is done with the
intention of causing death, or of causing such bodily injury as is
likely to cause death, or with imprisonment of either description
for a term which may extend to ten years, or with fine, or with
both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such
bodily injury as is likely to cause death.
74. Considering the facts and mitigating circumstances of the present
case, as the incident having taken place way back 33 years ago
and the appellants Riyaj and Niyaj are now advanced in age and
after the said incident, no criminal antecedents have been
reported against the convicts-appellants, we are of the view that
the ends of justice will be served if the appellants Riyaj and Niyaj
are sentenced for a period of ten years rigorous imprisonment
and also fine of Rupees 5000/- each, which shall be paid to the
legal heirs of the deceased-Mohammad Sharif within a period of
30 days from the date of judgment and in default of such
payment, they shall undergo additional simple imprisonment for 3
months. The period already undergone by the appellants Riyaj
and Niyaj in the present case shall be set off under Section 428 of
the Cr.P.C./528 of the BNSS, 2023.
75. The other conviction and sentence under Section 323/34 of IPC,
passed against the appellants Ajmatulnisha and Kismatulnisha is,
however, upheld.
76. The appellant no. 1-Ajmatulnisha has passed away during
pendency of this criminal appeal and appeal has already been
been dismissed as abated against appellant no. 1-Ajmatulnisha.

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77. The appellants-convicts Kismatulnisha, Niyaj and Riyaj are on the
bail. Their bail bonds and personal bonds stand cancelled and
sureties stand discharged. They are directed to surrender before
the trial court forthwith and the learned trial court shall send them
to jail for serving the sentence. If they do not surrender before the
court, then the learned trial court will take coercive steps to
procure their presence.
78. The record of trial court be sent back for necessary compliance.
79. Accordingly, the instant criminal appeal is partly allowed and the
conviction and sentence of the appellants, Niyaj and Riyaj is
modified as above.
(Pramod Kumar Srivastava,J.) (Abdul Moin,J.)
September 03, 2026
kkv/
Digitally signed by :-
KRISHAN KUMAR
High Court of Judicature at Allahabad,
Lucknow Bench