Radhey Shyam v. State of U.P.

The term murder and culpable homicide are the two most confusing terms in the Indian Penal Code, 1860. There is a faint line of difference between both of them. These terms consistently growl up the person who starts learning these ideas. As indicated by Sir James Stephen, the meaning of culpable homicide and murder are the most vulnerable piece of the code, as they are characterized in structures intently taking after one another, and on occasion, it gets hard to recognize the two, as the causing of death is normal in both. Be that as it may, the essential contrast between these two offences lies in the gravity with which the offence has been executed. 

In the High Court of Allahabad

Case Name Radhey Shyam and Anr. v. State of U. P. 
Criminal Appeal No. 1598 of 2002
Year20 August 2018
AppellantRadhey Shyam and another
RespondentState of U. P. 
Bench/JudgeRitu Raj Awasthi, Mahendra Dayal
Acts involvedIndian Penal Code, Cr. P. C., Arms Act, Indian Evidence Act, 
Important SectionsSection 302/34 & 504 IPC, Section 25 Arms Act. 

In like manner speech, S. 300 is a sub-set of the S. 299 (Culpable homicide is a variety and murder its species). Every unnatural human demise is homicide however when it is combined with the aim and not just information (culpable homicide not amounting to murder) at that point it is a murder.


Homicide is a term which begins from the Latin expression ‘Homo’ signifies human and ‘cardere’ signifies killing. The act of murder is an act that has been a part of human life since day one. Early men used to slaughter each other for food or making strength, the rulers used to perform crime to win regions and now individuals kill each other in the influence of envy, avarice, and so forth.

Murder is one of the most grievous acts an individual can submit as it is the most elevated request of substantial injury caused on a person consequently that is the reason guidelines with respect to homicide are truly grave.

In India, homicide is divided into two structures Culpable Homicide (Section 299 of the Indian Penal Code) and Culpable Homicide amounting to murder (Section 300 of the Indian Penal Code). Both of these have an insignificant contrast. However, these distinctions end up being essential for the legitimate framework as the conveyance of a reasonable judgment is subject to these distinctions.


In this case, the female calf of the appellant Radhey Shyam had come near the animals of the informant which was driven away by his son Babu Ram and he told Radhey Shyam to ensure that his calf is properly tied at his place on which Radhey Shyam got infuriated and started abusing Babu Ram and said that he will block his passage. His son Babu Ram told Radhey Shyam in strict words, not to abuse on which Radhey Shyam brought a firearm from his house and stepped to make a fire. Kallu and Pahari S/o Mangal, as well as Mohan S/o Mathura, had challenged Radhey Shyam, then Radhey Shyam fired pointing at the chest of Babu Ram. Informant’s son Kallu and Pahari had snatched the firearm from Radhey Shyam. In the meantime, Vikram had also come and who is the brother of Radhey Shyam and started helping Radhey Shyam in killing the Babu Ram. The said firearm with a cartridge has been brought to the police station. The accused Radhey Shyam and Vikram had run away from the place of occurrence. Hence, the accused found guilty of the act commit and held liable for the murder under Section 302 r/w 34, 504 of IPC and Sections 3 r/w 25 of the Arms Act, whereby the appellant has been convicted for the offence under Section 302 IPC and sentenced with rigorous imprisonment for life and also with fine of Rs.5000/- each with default stipulation of one-year additional imprisonment and for the offence under Section 504 IPC sentenced to undergo rigorous imprisonment for a period of one year and for the offence under Section 25 Arms Act. The appellant 1, Radhey Shyam has been sentenced to undergo rigorous imprisonment for a period of one year and also fine of Rs 1000/- with default stipulation of three months additional imprisonment.


The appellant has challenged the judgement and order dated 01.11.2002, passed by the learned Additional Sessions Judge, Lakhimpur Kheri, in Sessions Trial No.73 of 2002, relating to case crime no. 211 of 2001 & 212 of 2002 by criminal appeal under Section 374 (2) Cr.P.C. 

But the case of defence was of total denial and being innocent. In order to prove its case, the prosecution had examined five witnesses out of which two witnesses are witnesses of facts, whereas three are if formal witnesses. No evidence in defence was adduced on behalf of the appellants. The statements under Section 313 Cr.P.C. of the accused persons were recorded in which they had denied the allegations and claimed that the deceased Babu Ram wanted to grab a certain piece of land which was resisted by them; however, they as not made any complaint in this regard. 

Both of the witnesses of the fact, clearly said that there was enmity with the appellants and the altercation had taken place due to the coming of the female calf of the appellants at his place. And Vikram, the brother of Radhey Shyam had brought the firearms as well as bhali from the house and the firearm was given to the appellant. Then the Radhey Shyam hit the fire at the chest of the deceased. The formal witnesses state that the death of the deceased caused due to the shock and excessive bleeding due to the injuries sustained by a firearm. The FIR was lodged in the presence of Sub-Inspector Dinesh Kumar Singh and also proved the evidence in this regard. 

Contentions by appellant

Learned Council for the appellant has submitted that the learned trial court failed in convicting the appellants under Section 302 of IPC. The alleged offence was committed without any premeditation. The facts clearly said that there was a sudden altercation between the accused-appellants and the deceased and in the heat of passion upon sudden quarrel the deceased had sustained injuries and has perished to the said injuries.

Submission is that there was no case of murder and the case if the appellant is covered under exception 4 of Section 300 IPC. It is also submitted that co-accused Vikram was not involved in the occurrence of the alleged offence. As there was no injury caused by any sharp edge or bhali. The co-accused Vikram only helped the accused Radhey Shyam in getting himself released from the clutches of Kallu and Pahari. There was no motive of the appellants to commit a crime, as such even if the appellant is found guilty, they can at most be convicted under Section 304 (2) IPC. Also, the appellant Radhey Shyam is in jail for approximately 18 years. 

Learned Counsel for the appellant has strongly convicted that there was a definite improvement in the version of the witnesses of facts as set out in the FIR and as such the statement of prosecution witnesses cannot be considered reliable.  It is also contended that in the FIR it has been said that the appellant Radhey Shyam had brought the fire arm from his house and fired at the deceased, whereas in the statement of Pahari it has come that the appellant Vikram had brought the fire arm from his house and given it to the appellant Radhey Shyam and thereafter Radhey Shyam had made a fire which had hit the deceased. There is a contradiction in the statement of Pahari, as such, it is not trustworthy. Moreover, Ishwar Deen is an interested witness being the father of the deceased and his statement alone cannot be relied upon for the prosecution of the appellants.

In support of his submissions learned counsel for the appellants has placed reliance on the following judgments:

  • Vineet Kumar Chauhan v. State of U.P. 
  • Rampal Singh v. State of U.P.
  • Gurpal Singh v. State of Punjab

Contentions by Prosecution 

On the other hand, Learned Additional Government Advocate, appearing for the state, has submitted that it is the clear case of murder. As the FIR appears to be prompt, the name of the accused, weapons used, manner of assault, motive for the crime, place of occurrence, names of witnesses present at the scene of occurrence is clearly mentioned. The FIR was also lodged by the father of the deceased. It is also submitted that there is no paradox in the statement of deceased father and Pahari. 

The contention is that the statement of the father of the deceased is a substantive piece of evidence made before the court and nothing has been elicited from the witness. It is contended that the date, time, and place of occurrence has never been challenged or even disputed during the trial from the side of the appellants while cross-examining the eyewitnesses and thus stood proved beyond any shadow of a doubt. It is submitted that the defence has miserably failed to cause even a dent in the prosecution case regarding the commission of a crime by the accused-appellants, their manner of assault on the deceased, and causing immediate death at the spot by firing a gunshot from the country made pistol used by the appellant-Radhey Shyam which was provided to him by co-appellant Vikram who was also present at his house.

It is also argued by the prosecution that the first purpose of the FIR is to inform the authorities of the state to initiate immediate action in respect of the commission of a cognizable offence.  Secondly, the FIR is not a substantive piece of evidence and it can be used only in a trial court for the purpose of contradiction from the maker of the FIR. Moreover, the FIR is lodged by the father of the deceased, not by the Pahari.  It is also submitted that no such contradiction as alleged by the counsel for the appellants were ever put to the maker of the FIR i.e., father of the deceased, and no suggestion was brought towards any such contradiction by specifying that there is a contradiction in his statement with respect to the narration in the FIR.

It is contended by learned AGA that co-accused Vikram had played an active role in the commission of offence. The deposition of  Pahari clearly indicates the active role played by co-accused Vikram and has fully verified the statement of the deceased father and no contradiction during cross-examination with his previous statement under Section 161 Cr.P.C. was ever put as contemplated under Section 145 of the Evidence Act. It was also argued that the appellant is not entitled to the benefit of exception 4 to Section 300 IPC, as there is no provocation made by the deceased to fire at him by the appellant. Submission is that intention can easily be gathered and inferred from the conduct of appellant Radhey Shyam. The case of the appellant clearly comes under the 3rd clause of Section 300 IPC and may also be covered in the 2nd clause. It is also submitted that the deceased was unarmed whereas the appellant Radhey Shyam had fired at him by a country-made pistol with intentional intent and made the fire at the vital part of the body of the deceased causing his instantaneous death at the spot. In support of his submissions learned AGA has relied on the following judgments:

  • State of Rajasthan Vs. Islam
  • State of Madhya Pradesh Vs. Shivshankar
  • Baleshwar Mahto & anr. Vs. State of Bihar & anr.

This would have considered the submissions of learned counsel for parties and perused the lower court record.


  • Whether the conviction of the appellant under Section 302 IPC read with Section 34 IPC in the given facts is correct? 
  • Whether the appellants can be given the benefit of exception 4 of Section 300 IPC? 

Related Cases

Utpal Das and anr. v. State of West Bengal

In the judgement, of the Apex Court, it has been observed that there is no merit in the submission for the simple reason that the contents of the FIR were never put to the victim. It is useless to rephrase that the FIR does not comprise the substantive evidence.

State of Andhra Pradesh v. Rayavarapu Punnayya

In this case, the Apex Court vividly described the academic distinction between murder and culpable homicide not amounting to murder.

Bhagwan Munjaji Pawade v. State of Maharashtra

In this, the court held that some of the conditions for the applicability of Exception 4 to Section 300 exist here, but not all. The dispute had broken out suddenly, but there was no sudden fight between the deceased and the appellant. The deceased was unarmed. He did not cause any injury to the appellant. Furthermore, no less than three fatal injuries were inflicted by the appellant with an axe, which is a formidable weapon on the unarmed victim. Appellant, is, therefore, not entitled to the benefit of Exception 4.


The arguments advanced by the counsel of the appellant that there was no intention to kill the deceased on the part of the appellants because tge incidence happened under the sudden conflict during the heat of provocation and the appellant lied under the benefit of exception 4 of Section 300 IPC. But there is no provocation from the side of the deceased. Moreover, the appellant in the altercation with tge deceased had not received any crash and was also not injured. The act of the appellants clearly indicates their intent to kill the deceased and they had with predetermination and intention had fired at the deceased to kill him. 

The case of the appellant as such is not entitled under exception 4 of Section 300 IPC and the learned Trial Court has rightly on the basis of evidence on record has come to the conclusion that the appellants are guilty of committing murder and have been sentenced to undergo life imprisonment.

The conviction of appellants under Section 302/34 & 504 IPC is confirmed. The conviction of appellant Radhey Shyam under Section 25 Arms Act is also proved beyond doubt and is hereby confirmed. They shall undergo the sentence awarded by the learned Trial Court.

After going through the entire evidence and the impugned judgment, it was fully satisfied that the learned trial court has rightly held the case of the prosecution to be proved and has rightly convicted the appellants. So, the appeal has absolutely no force and deserves to be dismissed. The appeal was dismissed and the appellants were ordered to serve out their sentence as imposed by the learned trial court. 


In spite of the fact that both the ideas of culpable homicide and murder appear to be the same in certain sense, they vary in the part of the level of likelihood of death or it tends to be said as the reality of the act of the wrongdoing. If the act done by the guilty party is either grievous wrongdoing or it is an exceptionally risky act that causes as it were demise to an individual, with no other outcome it would appropriately fall under the idea if murder and not culpable homicide. If such an act by the wrongdoer leaves the victim to be alive with some previous hurt with the possibility of getting away from death, at that point it is supposed to be a Culpable homicide that does not amount to murder.

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