Monu Singh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Mrs. Begum Sabiha Kamal and Mrs. Soniya Mishra, learned counsel for the appellants and Ms. Madhulika Yadav, learned Additional Government Advocate were heard.

These criminal appeals i.e. Criminal Appeal No. 2808 of 2007 preferred by appellants Monu Singh and Girja Shanker @ Nanhe Bhaiya, Criminal Appeal No. 2800 of 2007 preferred by appellant Om Prakash Singh, Criminal Appeal No. 2846 of 2007 preferred by appellant Narendra Singh and Criminal Appeal No. 2779 of 2007 preferred by the appellant Raj Bahoran arise out of a common judgment, hence, the same are being disposed of together.

Under Challenge in the instant criminal appeals is the judgment and order dated 31.10.2007 passed by learned Additional Sessions Judge/F.T.C. Court No. 1, Hardoi, in Sessions Trial No. 776 of 2006, arising out of Case Crime No. 375 of 2006, under Sections 147, 148, 149, 307, 302 IPC, Police Station Behta Gokul, District Hardoi and also in ST. No. 777 of 2006-State Vs. Om Prakash, under Section 3/25 Arms Act and ST. No. 778 of 2006-State Vs. Raj Bahoran under Section 3/25 Arms Act and in S.T. No. 780 of 2006-State Vs. Narendra Singh under Section 3/25 Arms Act and in S.T. No. 781 of 2006-State Vs. Monu Singh under Section 3/25 Arms Act whereby all the appellants were convicted and sentenced as under:-

(i) Under Section 148 IPC - Rigorous imprisonment for a period of one year and also with fine of Rs. 1000/- each, with default stipulation of two months additional imprisonment.

(ii) Under Section 307/149 IPC - Rigorous imprisonment for a period of seven years and also with fine of Rs. 3000/- each, with default stipulation of one year additional imprisonment.

(iii) Under Section 302/149 IPC - Imprisonment for life and also with fine of Rs. 5000/- each, with default stipulation of one and half year''s additional imprisonment.

(iv) Under Section 3/25 Arms Act - Rigorous imprisonment for a period of one year and also with fine of Rs. 1000/- each, with default stipulation of two months additional imprisonment.

In brief, the case of the prosecution was that the complainant Anil Kumar Agnihotri lodged an FIR at Police Station Behta Gokul, District Hardoi on 27.09.2006 at 00.10 a.m. alleging therein that on 26.09.2006 at about 10.15 p.m. a C.D. was being played in the house of Ram Shanker son of Chhotkannu who was nephew of the complainant and his house was adjacent to the house of the complainant. Several persons of the village were viewing the video in the night at about 10.00 p.m. the appellants armed with fire arms came to the said place, at that time they were under the influence of intoxication and started abusing the complainant. Thereafter, the complainant side came to his house. However, the villagers pacified them and sent them back. After some time again all the five accused persons armed with fire arm reached there and started hurling abuse. When the persons viewing the video asked them not to abuse then all the accused persons fired with an intention to kill them which hit Jugraj Singh and Satyapal due to which Jugraj Singh died on the spot and Satyapal brother of the complainant sustained fire arm injury on his chest. Apart from it, Km. Sarita Sharma and Sudhir have also received injuries in this incident. The incident was witnessed by Puttu Badhai, Sunil and other persons of the village. Thereafter, the accused persons went away from the place of occurrence.

After registration of the case the investigation proceeded and inquest proceedings were conducted and the dead body of Jugraj Singh, deceased was sent for postmortem which was conducted on 27.09.2006 at about 3:30 p.m. wherein duration of death was reported to be about one and half day old. According to the postmortem report the following ante mortem injury was found on the body of deceased Jugraj Singh:-

(i) Fire arm wound of entry 2.5 c.m. x 2 c.m. x chest cavity deep present on left side at base of neck at clavicle scapular joint. This main wound was surrounded by multiple fire arm wound of entry in an area of 13 c.m. x 12 c.m. x 0.3 c.m. x muscle to chest cavity deep. Margins were inverted and lacerated direction was front to back. In the chest cavity 1.5 liter of clotted blood and fluid was present. One wadding piece and eleven small metallic pellets were recovered from muscles of neck and chest left side and tissues of left lung.

In the opinion of the doctor death occurred due to shock and haemorrhage as a result of ante-mortem injuries.

Injured Satyapal was also medically examined on 27.09.2006 at 1.40 a.m. at District Hospital, Hardoi, and following injuries were reported in his medical examination report (Exhibit Ka-3).

(i) Lacerated wound (multiple) 0.5 c.m. x 0.5 c.m. x depth kept under observation, present over left side around of chest in an area of 25 c.m. x 8 c.m. just adjacent to left shoulder blackening present and bleeding present. Injury was kept under observation and X-ray was advised.

(ii) Lacerated wound (multiple) 0.5 c.m. x 0.5 c.m. x depth. Kept under observation on posterior outer aspect of left arm in an area of 15 c.m. x 9 c.m. just adjacent to left shoulder joint. Blackening and bleeding present. Injury was kept under observation and X-ray was advised.

In the opinion of the doctor the injuries were caused by fire arm object and duration was fresh.

On the same day at 2.20 p.m. injured Sudhir was examined and following injury was reported on his body:-

(i) Lacerated wound 0.5 c.m. x 0.5 c.m. x depth kept under observation present over front of left shoulder joint. Blackening present around the wound and bleeding was present. Injury was kept under observation and X-ray was advised. In the opinion of the doctor it was caused by fire arm and duration was fresh.

On the same day at 2.45 a.m. Sarita Sharma was also medically examined and following injuries were reported on her person:-

(i) Lacerated wound 0.5 c.m. x 0.5 c.m. x depth kept under observation. 4 c.m. apart, posterior left side cheek. 4 c.m. away from left nostril. Blackening and bleeding present. Injury kept under observation and X-ray was advised.

In the opinion of the doctor it was caused by fire arm and the duration was fresh.

During course of investigation the place of occurrence was inspected and its site plan was prepared. From the place of occurrence blood stained and plain earth was taken into custody. One empty cartridge of 12 bore was taken into custody and its memo was prepared. During course of investigation on 27.09.2006 while the police was in search of the wanted accused persons then on a secret information, two appellants namely Om Prakash and Girja Shanker alias Nanhe Bhaiya were arrested and from their possession fire arm alleged to have been used in the commission of the instant offence were recovered and its separate memo was prepared and separate cases were registered under Arms Act. Thereafter on 30.09.2006 at about 4.25 a.m. appellant Raj Bahoran was arrested and from his possession countrymade pistol which was alleged to have been used in the commission of this offence was recovered and its memo was prepared and on the basis of the same separate case under Arms Act was registered. On the pointing out of the accused persons Narendra Singh and Monu Singh the weapons of offence were recovered and its memo was prepared. On the basis of these recovery memos separate cases under Arms Act were registered which were tried alongwith the main offence.

After concluding the investigation charge-sheet was filed against all the accused persons.

The defence of the accused persons was of total denial and their false implication in the instant case.

In order to prove its case, the prosecution has examined PW-1 Anil Kumar Agnihotri, the complainant, PW-2 Smt. Ram Kiran wife of Jugraj Singh (deceased), PW-3 Satyapal, an injured eye witness of this incident, PW-4 Sudhir Kumar, another injured eye witness of this incident, PW-5 Dr. Amarjeet Singh, who has conducted the postmortem on the body of the deceased, Jugraj Singh, PW-6 Dr. Anoop Kumar Srivastava, who has medically examined the injured persons, PW-7 Sukhram Gautam, the Investigating Officer of this case, PW-8 Dr. R.K. Kanchan, who has performed X-ray on the body of the injured persons, PW-9 Constable Ram Asrey, who has prepared the chik report and G.D. of the case, PW-10 Dinesh Pal Singh who has prepared the chik report and G.D. of the case under Arms Act, PW-11 Anil Kumar Vishwakarma, the subsequent Investigating Officer of the case under Arms Act.

On behalf of the appellant Narendra Singh written statement was also filed under Section 233 Cr.P.C. wherein he has stated that about one and half month prior to this incident one Jageshwar son of Jaipal Singh had lodged an FIR under Section 307 IPC against Chandra Prakash Singh Pradhan, Chandrapal, Surendra Pal and Chandrahas in which Jitendra son of appellant Om Prakash was a witness. In that case Ram Shanker had filed an affidavit, on the basis of which police had filed final report. However, further investigation was pending. Prior to this incident one Shyam Singh was murdered in which pradhan Chandra Prakash, Jagpal and Rajesh were named accused persons. It was pleaded that some unknown persons have committed dacoity after trespassing into the houses and they have received injuries and the appellants have been falsely implicated.

In defence the certified copies of the FIRs of the earlier cases have been filed. However, no person of the village could be examined in defence to support the defence theory of dacoity in the village.

After appreciating the evidence on record, learned trial court has convicted the appellants as above, hence, the instant appeals.

Learned counsel for the appellants, at the very outset, has fairly conceded that they do not intend to challenge their conviction and they have restricted their arguments only on the point that the incident of this case has taken place on the spur of the moment. There is no evidence that the appellants had any intention to kill the deceased. It was only under the influence of intoxication and under sudden provocation that this offence was committed so the offence, if any, committed by the appellants would not travel beyond the purview of Section 304 part I IPC and on this ground a prayer to reduce the sentence of the appellants has been made.

Learned A.G.A. has submitted that in the instant case it cannot be said that this offence would fall within the category of Section 304 part I IPC because accused persons first came to the place of occurrence and after hurling abuses they went back and thereafter again came back armed with weapons and committed this offence. So the offence would fall within the purview of Section 302 read with Section 149 IPC.

Though the conviction of the appellants has not been challenged but inspite of that being the court of first appeal, we have gone through the evidence of all the witnesses and also through the impugned judgment. The incident of this case is alleged to have taken place at about 10.15 p.m. in the night and the FIR was lodged only after two hours of the incident at the police station situated at a distance of 8 miles from the place of occurrence.

A prompt F.I.R. lends credence to the prosecution case because a prompt F.I.R. eliminates all the chances of cooking up of a false story. Hon''ble the Apex Court in the case of Meharaj Singh v. State of U.P. reported in , (1994) 5 SCC 188 while emphasizing the importance of recording a prompt FIR the Supreme Court observed as under:-

"FIR in a criminal case and particularly in murder case is a vital and valuable piece of evidence for the purpose of appreciating evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses if any. Delay in lodging FIR often result in embellishment, which is a creature of an afterthought. On the account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story."

In Thulia Kali v. State of Tamil Nadu reported in , (1972) 3 SCC 393 the Supreme Court observed as under:-

"............ first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the report can hardly be overestimated from the standpoint of the accused."

Similarly in Kishan Singh through LRs. v. Gurpal Singh and others reported in , (2010) 8 SCC 775 the Supreme Court held that "Prompt and early reporting of the occurrence by the informant with vivid details gives assurance regarding truth of its version. In case there is some delay in recording the FIR the complainant must give an explanation for the same. Undoubtedly, delay in lodging FIR does not make the complainant''s case improbable when such delay is properly explained."

Hon''ble the Apex court in the case of Nanhe Vs. State of Uttar Pradesh reported in , 1973 (3) SCC 317 has held that a prompt F.I.R. eliminates the chances of cooking up of a false story.

In the instant case the prosecution has produced four eye witnesses in support of its case and all the four witnesses of fact have fully supported the case of the prosecution. Out of said four witnesses of fact PW-3 and PW-4 are injured witnesses. Their presence on the scene of occurrence cannot be doubted. They have also supported the prosecution story. PW-4 was a child witness aged about 13 years. The trial court after being satisfied that he is capable of giving evidence, has recorded his evidence. The evidence of all these witnesses stands fully corroborated by the medical evidence and also by the subsequent recoveries made from the possession or on the pointing out of the appellants. Therefore, we are of the considered opinion that the conviction of the appellants recorded by the learned trial court was in accordance with law and prosecution was successful in proving its case beyond reasonable doubt.

Now the sole point to be considered is whether the offence committed by the appellants would fall within the purview of Section 304 part I IPC or it would be an offence under Section 302 IPC.

In the instant case, admittedly, no prior enmity of the complainant side with any of the appellants was alleged in the FIR nor any enmity was disclosed by the complainant in his statement under Section 161 Cr.P.C.

Submission of the learned counsel for the appellants has substance that the incident has started because of high volume of TV/video which was creating nuisance for the persons living in the vicinity, therefore, the appellants had come to ask the complainant side to stop the playing of the video went back but when the playing of the video was not stopped nor the volume was reduced then under the influence of intoxication and feeling provocation they went to the place of occurrence and under heat of passion opened fire which was not made with the intention to kill anyone but it was only under the heat of moment that the incident took place. It has come in evidence of the witnesses that playing of the video stopped only after the incident and not before it. It is an admitted case of the prosecution that initial incident of hurling of abuses took place and because of the intervention of some people the appellants went back but thereafter they, feeling provoked, came back to the place of occurrence and this incident has taken place. So there is nothing on record to indicate that the appellants had any prior intention to commit the murder of the deceased Jugraj Singh. Deceased Jugraj Singh has received only one gun shot injury. Likewise the other injured persons have also received pellets injuries.

Now we will have to consider the legal position where the offence was not premeditated and pre-intended. Whether in such circumstances the offence would fall within the purview of Section 302 IPC or under Section 304 part I IPC.

Hon''ble the Apex Court in the case of Rampal Singh Vs. State of U.P. reported in , 2012 Cri.L.J. 3765 has considered the distinction between culpable homicide and murder in paragraph No. 14 and 15, which reads as under:-

"14. This Court has time and again deliberated upon the crucial question of distinction between Sections 299 and 300 of the Code, i.e., ''culpable homicide'' and ''murder'' respectively. In the case of Phulia Tudu and Anr. v. State of Bihar (now Jharkhand) [, AIR 2007 SC 3215], the Court noticed that confusion is caused if courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of these sections. The Court provided the following comparative table to help in appreciating the points of discussion between these two offences:

Section 299

Section 300

A person commits culpable homicide if the act by which the death is caused is done-

Subject to certain exceptions culpable homicide is murder if the act by which the death is caused is done.

Intention

(a) with the intention of death; or

(1) with the intention of causing death; or injury as is likely to cause death; or

(b) with the intention of causing such bodily injury as is likely to cause death; or

(2) 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

(3) 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;

KNOWLEDGE

(c) with the knowledge that the act is likely to cause death .

(4) with the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse or incurring the risk of causing death or such injury as is mentioned above.

Section 300 of the Code states what kind of acts, when done with the intention of causing death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary course of nature to cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death, would amount to ''murder''. It is also ''murder'' when such an act is committed, without any excuse for incurring the risk of causing death or such bodily injury. The Section also prescribes the exceptions to ''culpable homicide amounting to murder''. The explanations spell out the elements which need to be satisfied for application of such exceptions, like an act done in the heat of passion and without pre-mediation. Where the offender whilst being deprived of the power of self-control by grave and sudden provocation causes the death of the person who has caused the provocation or causes the death of any other person by mistake or accident, provided such provocation was not at the behest of the offender himself, ''culpable homicide would not amount to murder''. This exception itself has three limitations. All these are questions of facts and would have to be determined in the facts and circumstances of a given case."

In the facts of that case, Hon''ble the Apex Court has partially allowed the appeal and converted the conviction from under Section 302 I.P.C. to Section 304 Part (I) I.P.C. and awarded a sentence of ten years rigorous imprisonment. In the facts of that case, appellant shot at the deceased with his rifle and ran away.

In the case of Manjeet Singh Vs. State of Himachal Pradesh reported in , (2014) 5 SCC 697. There was no intention to cause death and incident took place on the spur of moment and due to firing from the carbine the death was caused. Hon''ble the Apex Court has held that offence would fall under Section 304 I.P.C.

In the case of K. Ravi Kumar Vs. State of Karnataka reported in , (2015) 2 SCC 638 Hon''ble the Apex Court has again considered the distinction between Section 302 I.P.C. and Section 304 I.P.C. and has observed in paragraph No. 11 to 15 as under:-

In Surinder Kumar v. Union Territory, Chandigarh , (1989) 2 SCC 217, this Court on the same issue held that if on a sudden quarrel a person in the heat of the moment picks up a weapon which is handy and causes injuries out of which only one proves fatal, he would be entitled to the benefit of the Exception provided he has not acted cruelly. This Court held that the number of wounds caused during the occurrence in such a situation was not the decisive factor. What was important was that the occurrence had taken place on account of a sudden and unpremeditated fight and the offender must have acted in a fit of anger. Dealing with the provision of Exception 4 to Section 300, this Court observed:

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly."

In Ghapoo Yadav and Ors. v. State of M.P. , (2003) 3 SCC 528, this Court held that in a heat of passion there must be no time for the passion to cool down and that the parties had in that case before the Court worked themselves into a fury on account of the verbal altercation in the beginning. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception 4 to Section 300 Indian Penal Code. Whether or not the fight was sudden, was declared by the Court to be decided in the facts and circumstances of each case. The following passage from the decision is apposite:

10........... The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender''s 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 the 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 have worked themselves into a 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".

11......... After the injuries were inflicted the injured had fallen down, but there is no material to show that thereafter any injury was inflicted when he was in a helpless condition. The assaults were made at random. Even the previous altercations were verbal and not physical. It is not the case of the prosecution that the accused-Appellants had come prepared and armed for attacking the deceased. .............This goes to show that in the heat of passion upon a sudden quarrel followed by a fight the accused persons had caused injuries on the deceased, but had not acted in a cruel or unusual manner. That being so, Exception 4 to Section 300 Indian Penal Code is clearly applicable......

In Sukbhir Singh v. State of Haryana , (2002) 3 SCC 327, the Appellant caused two Bhala blows on the vital part of the body of the deceased that was sufficient in the ordinary course of nature to cause death. The High Court held that the Appellant had acted in a cruel and unusual manner. Reversing the view taken by the High Court this Court held that all fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of Exception 4 to Section 300 Indian Penal Code. In cases where after the injured had fallen down, the Appellant-accused did not inflict any further injury when he was in a helpless position, it may indicate that he had not acted in a cruel or unusual manner. This Court observed:

19..........All fatal injuries resulting in death cannot be termed as cruel or unusual for the purposes of not availing the benefit of Exception 4 of Section 300 Indian Penal Code. After the injuries were inflicted and the injured had fallen down, the Appellant is not shown to have inflicted any other injury upon his person when he was in a helpless position. It is proved that in the heat of passion upon a sudden quarrel followed by a fight, the accused who was armed with bhala caused injuries at random and thus did not act in a cruel or unusual manner.

In Mahesh v. State of M.P. , (1996) 10 SCC 668, where the Appellant had assaulted the deceased in a sudden fight and after giving him one blow he had not caused any further injury to the deceased which fact situation was held by this Court to be sufficient to bring the case under Exception 4 to Section 300 of Indian Penal Code. This Court held:

4............... Thus, placed as the Appellant and the deceased were at the time of the occurrence, it appears to us that the Appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heels. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly he did not assault PW 2 or PW 6 who were also present along with the deceased and who had also requested the Appellant not to allow his cattle to graze in the field of PW 1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception 4 to Section 300 Indian Penal Code is clearly attracted to the case of the Appellant and the offence of which the Appellant can be said to be guilty would squarely fall Under Section 304 (Part I) Indian Penal Code.........

The law laid down in the aforesaid cases was considered and applied recently by this Court in the case reported in Ankush Shivaji Gaikwad v. State of Maharashtra , (2013) 6 SCC 770. In this case also, the Appellant-accused while passing on the field of the deceased on a spur of moment indulged in heated talk with the deceased which resulted in hitting a blow by the Appellant-accused to the deceased with the rod causing death of the deceased. Justice T.S. Thakur, speaking for the Bench, accepted the plea raised by the Appellant-accused and accordingly altered the sentence falling Under Section 304 Part II Indian Penal Code by giving him the benefit of Exception 4 of Section 300 Indian Penal Code. It was held by this Court as under:

"27.........we are of the opinion that the nature of the simple injury inflicted by the accused, the part of the body on which it was inflicted, the weapon used to inflict the same and the circumstances in which the injury was inflicted do not suggest that the Appellant had the intention to kill the deceased. All that can be said is that the Appellant had the knowledge that the injury inflicted by him was likely to cause the death of the deceased. The case would, therefore, more appropriately fall Under Section 304 Part II Indian Penal Code."

In the case of Budhi Singh Vs. State of Himachal Pradesh reported in , (2012) 13 Supreme Court Cases 663, the facts were that the appellant gave two repeated blows on the head with a small axe, which resulted into the death of the deceased. In the circumstances in which the offence was committed, it was held that it was not premeditated and had taken place on the spur of moment and in this background, Hon''ble the Apex Court in paragraph No. 26 has held as under:-

"26. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence Under Section 304 Part I Indian Penal Code as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence Under Section 304 Part I Indian Penal Code, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months."

In the case of Rampal Singh Vs. State of Uttar Pradesh reported in , (2012) 8 Supreme Court Cases 289, Hon''ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon''ble the Apex Court has held in paragraph No. 22 as under:-

"22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed."

Keeping in view the aforementioned legal position when we consider the facts of the instant case then it reflects that the incident has taken place on the spur of the moment and there was no prior enmity between the deceased and the appellants. No other circumstance could be brought to our notice in the entire evidence that it was an intended or pre-planned act of the appellants.

Keeping in view the aforesaid legal pronouncement, since the incident of this case has taken place on the spur of the moment and the offence was not premeditated or preplanned, no undue advantage of such provocation was taken, appellant had not acted in any cruel or unusual manner. So in our considered view, the offence committed by the appellants, in this perspective, would not travel beyond the purview of Section 304 part I IPC and in our considered opinion the sentence of 10 years rigorous imprisonment would meet the ends of justice.

Accordingly these appeals i.e. Criminal Appeal No. 2808 of 2007 - Monu Singh and another V. State of U.P., Criminal Appeal No. 2800 of 2007-Om Prakash Singh V. State of U.P., Criminal Appeal No. 2846 of 2007 - Narendra Singh V. State of U.P. and Criminal Appeal No. 2779 of 2007-Raj Bahoran V. State of U.P. deserve to be partly allowed and are hereby partly allowed. The conviction of all the appellants under Section 302 read with Section 149 IPC is hereby modified under Section 304 part I read with Section 149 IPC and the sentence of life imprisonment is modified with rigorous imprisonment for a period of ten years. Fine imposed by the learned trial court for the said offence is also hereby confirmed.

The conviction and sentences of the appellants for the remaining sections imposed by the learned trial court is also hereby confirmed. However, in default of payment of entire fine amount appellants will have to suffer additional imprisonment for a period of six months in place of additional imprisonment awarded by the learned trial court for different offence separately.

All the sentences shall run concurrently.

All the appellants namely Monu Singh, Girja Shanker @ Nanhe Bhaiya, Om Prakash Singh, Narendra Singh and Raj Bahoran are in custody. They shall serve out their sentence as modified by this Court. It is made clear that period of detention already undergone by the appellants in the instant cases shall be set off in their substantive sentence in accordance with the provision of Section 428 Cr.P.C.

Office is directed to certify this order forthwith to the court concerned and to send back the lower court record to ensure compliance.