Point of law: academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The 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 Section 299 and 300

JUDGMENT :

1. Heard Shri Noor Mohammad, learned counsel for the appellants and learned AGA for the State.

2. This appeal has arisen from the judgment and order dated 22.02.2013 passed by learned Additional Sessions Judge, Saharanpur in S.T. No. 2 of 2012, State of U.P. vs. Sharafat and Another (Crime No. 308/11) under Section 304 I.P.C. Police Station Mandi, District Saharanpur and S.T. No. 1 of 2012, State vs. Sharafat (Crime No. 309 of 2011) under Section 25/4 Arms Act, Police Station Mandi, District Saharanpur. The learned Sessions Judge convicted both the accused for life imprisonment under Section 302 read with section 34 of Indian Penal Code with fine of Rs. 10,000/- and six months rigorous imprisonment under Section 25/4 of the Arms Act.

3. The factual scenario as it unfurls from the record and the F.I.R are that the accused in unison caused death of the deceased on 26.7.2011 at 3.45 p.m. when Bano and Khursheed had lodged the F.I.R. convening to the Police that her sister Riyashat who was wife of one Sharafat son of Saif Ali residing in Siraj Colony, Police Station Mandi was married before 12 years with Sharafat.

4. It is submitted by Shri Noor Mohammad that the prosecution started against both the accused who are brothers of the deceased for commission of offence under Section 304 of Indian Penal Code and the charge-sheet was laid against them for commission of offence under Section 304 read with section 34 of Indian Penal code. The accused were committed to the court of session as the case was triable exclusively by the court of sessions.

5. It is admitted position of fact that both the accused are in jail since 26.7.2011 and might have been in jail even during the period of investigation before they were enlarged on bail.

6. The deceased girl had eloped with one another person. Sharafat-appellant is the brother and other is the husband. Brother is the accused appellant before us. Brother was trying to explain to deceased, Rasheed not to elope, she had a loving husband but she was bent on doing so in hit of the moment both the brothers caused death of their sister.

7. The prosecution examined several witnesses so as to bring home the charge framed against the accused as enumerated:

8. In support of ocular version following documents were filed:

9. Learned counsel for the appellant has contended that if this Court feels that the case is made out against the accused and they are not to be accorded benefit of doubt, he presses into service the provisions of Section 304 of I.P.C. According to learned counsel, the learned Judge could not have framed fresh charge after some of the witnesses had turned hostile. According to the learned Advocate, on the evidence of all the hostile witnesses and Sharafat has been sentenced to six months rigorous imprisonment for commission of the offence under Section 25/4 of the Arms Act (the said period is already over) has convicted the accused under Section 302 I.P.C. which could not have been done.

10. The following judgments of the Supreme Court are cited by the learned counsel so as to contend that offence under Section 302 is not made