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Patna High Court
Banaras Tiwari vs The State Of Bihar on 17 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (SJ) No.167 of 2008
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Banaras Tiwari, son of Late Duryoddan Tiwary, Resident of village-
Dharphari, P.S. Deoria, District-Muzaffarpur
... ... Appellant/s
Versus
The State Of Bihar
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Ms. Surya Nilambari, Amicus Curiae
For the Respondent/s : Mr. S. N. Prasad, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date: 17-04-2025
Heard Ms. Surya Nilambari, learned Amicus
Curiae for the appellant and Mr. S. N. Prasad, learned APP for
the State.
2. The present appeal has been filed under
Section 374(2) of Code of Criminal Procedure, 1973
(hereinafter referred as 'Cr.P.C') challenging the judgment of
conviction dated 19.12.2007 and order of sentence dated
20.12.2007
passed in Sessions Trial Case No. 154 of 2006
arising out of Deoriya P.S. Case No. 14 of 2005 dated
09.04.2005 passed by the learned Additional Sessions Judge
(FTC)-IV, Muzaffarpur, whereby and where-under the appellant
has been convicted for the offence punishable under Sections
304 of the Indian Penal Code (hereinafter referred as ‘IPC‘) and
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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had been sentenced to undergo rigorous imprisonment for ten
years under Section 304 of the IPC.
3. As per the prosecution story, the informant,
recorded fardbeyan on 09.04.2005 before police that a scuffle
took place in between the deceased and the accused on account
of human refuge throwing through the hole of a wall causing
annoyance to the inmates of the deceased home which led to an
abusing altercation and eventually in course of that the accused
started mounting pressure around the neck of the deceased as a
result of which it is alleged that the informant’s father fell on the
ground and went in coma who was rescued taken to S.K.M.C.H,
Muzaffarpur where he was declared dead and thereafter the
informant and others returned back to their village home with
the dead-body of the deceased and lodged the case before the
P.S. concerned.
4. Further on the basis of fardbeyan of informant,
police as usual took up the investigation and in course of that
visited the place of occurrence, took down the statement of the
witnesses, prepared inquest report, got the autopsy of the dead-
body and after completing the formalities submitted the charge-
sheet against the accused under Section 302 IPC which
mandated the court of competent jurisdiction to take cognizance
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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of the offence vide order dated 04.02.2006 and thereafter the
case was committed to the Court of Sessions on 17.02.2006.
5. On behalf of prosecution altogether 7
witnesses were examined to substantiate the charges levelled
against the appellant, who are namely, PW-1 Mukesh Tiwari,
PW-2 Sumangal Sharma, PW-3 Umesh Tiwari, PW-4 Kamlesh
Tiwari, PW-5 Manoj Tiwari (informant), PW-6 Dr. and PW-7
Santosh Kumar Sinha (Investigating Officer). On behalf of
defence one witness has been examined namely DW-1 Mahesh
Tiwari.
6. PW-1 Mukesh Tiwari in his examination-in-
chief stated that occurrence is of year 2005 around fourth month
at about 6:30 am when he was going to take bath, he saw that
there was a scuffle going between accused and deceased. He
further stated that after hearing hulla he came and saw that
Rameshwar Tiwari (deceased) was lying dead on the ground and
chachi (wife of deceased) told him that accused killed the
deceased by strangulation.
6.i. In his cross-examination, he stated that at the
time of occurrence deceased was healthy and accused was
scraggy person and he did not saw the occurrence himself. He
further stated that he did not saw any human refuge near the
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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house of the deceased nor saw any mark at the place of
occurrence. He further stated that deceased character was good
and he was wearing ganji, lungi when he saw the deceased and
deceased’s wife and son was not there.
7. PW-2 Sumangal Sharma stated in his
examination-in-chief that on 09.04.2005 the occurrence took
place when he was going to his house from farm, there was talk
in between two females about the death of the deceased and
when he ran toward the place of occurrence, he saw the dead
body of the deceased lying at his residence and PW-1 informed
him about the occurrence. In his cross-examination, he stated
that his statement was recorded after 10 days of the occurrence
and police inspector read out the fardbeyan of the informant. At
the time of occurrence he was at his house and his house is in
between the village. Deceased and accused both were his
neighbors.
8. PW-3 Umesh Tiwary who appears to be an
eye-witness of the occurrence, stated in his examination-in-chief
that occurrence is of last year at about 7:30 pm, there was a
scuffle and hot exchange of words in between the deceased and
the accused on the pretext of some nasty act of the accused and
thereafter the accused mounted pressure catching the neck of the
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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deceased who died on account of that instantaneously. The
deceased according to the witness was brought to S.K.M.C.H
where he was declared death.
8.i. In his cross-examination he stated that the
deceased and the accused are closely related to each other and
there was no dispute in between them before this occurrence
took place. He further stated about the situation of the houses of
both of the parties and about the genesis of the occurrence that
led to the dispute and he has seen that the accused has throwing
human refuge which is the beginning of the end of the deceased.
He further stated he did not give his deposition just because that
the deceased is his uncle.
9. PW-4 Kamlesh Tiwari stated in his
examination-in-chief that occurrence is of 2005 at around 7 am.
He went at the place of occurrence after hearing hulla and saw
Manoj Tiwari along with Umesh Tiwari there. Deceased was
asking from the accused as to why he is creating nuisance by
throwing human refuge in front of his house. Accused person
eventually in course of that started mounting pressure around
the neck of the deceased as a result of which he died.
9.i. In his cross-examination, he stated that
deceased is his uncle and people from his village use to go near
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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his house for defecate. At the date of occurrence, he saw the
accused person on the road and he could not clearly state about
the distance between the road and his house where occurrence
took place. In para 7 of his deposition PW-4 stated that he saw
accused person mounting pressure on the neck of the deceased
and he along with Manoj tried to part away the accused person
from mounting pressure on the neck of the deceased.
10. PW-5 Manoj Tiwari (informant) the son of
the deceased stated in his examination-in-chief that occurrence
is of 09.04.2005 at about 7:30 am when his father was at home.
He further stated that accused house is in front of his house and
he admitted the fact that there was ongoing land dispute with the
accused. He further stated that accused had created a whole in
the wall of his house and was facilitating the fall of human
refuge through that whole and when it was objected by the
deceased then the accused came out-side and caught hold of the
neck of the deceased which was depicted in action by him and
this commission of the accused ended the life of his father who
after five minutes felled on the ground and lost his sense. PW-5
went to bring doctor from the village and when doctor came
then he didn’t say anything and thereafter the person was
brought to the S.K.M.C.H, Muzaffarpur where he was declared
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
7/18
dead. The witness has further stated that he returned back to his
village along with the body of the deceased father, informed the
police who came and recorded his statement which bears the
signature of the witness marked as Ext. 2. The police prepared
the inquest report which bears signature of the witnesses there-
upon marked as Ext.3 and 3/1 and after completing these
formalities as stated in para-5 the dead-body of the deceased
was sent to the Medical college for postmortem and after
conducting the postmortem the dead-body was restored back for
its cremation, PW-5 has also filed a protest petition which bears
his signature thereupon marked as Ext.4.
11. PW-6 Dr. Mumtaz Ahmad (Medical Officer)
was posted at S.K.M.C.H, Muzaffarpur and she conducted
postmortem over the dead-body of the deceased on 10.04.2005
at 11.00 am and found the following injuries:
i. Abrasion were found on right forehead
¾” about, right eye-brow ½” x ¼” and on
left of right shoulder ½” x ½”.
ii. No external injury was found on neck but
on dissection sub-cutaneous tissues of neck
were congested and lacerated tracheal
rings were fractured with presence of blood
clot.
The doctor has opined that the death due to asphyxia as a result
of strangulation in the injury no.2. Injury no.1 may be due to fall
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
8/18on ground. Time elapsed in death within 24 to 36 hours. The
report has been marked Ext.5.
12. PW-7 Santosh Kumar Sinha (Investigating
Officer) after receiving the information rushed to place at
Dharfari at 9.00 pm and took down the statement of Manoj
Tiwary (PW-5). He further stated that he visited the place which
is open place before the houses of the informant and the
deceased through which a passage leads to the courtyard of the
informant and just besides the place there is a cemented roof
house of the accused having north face and adjacent to its south
the house of the informant is situated. He prepared the inquest
report which is in his writing and bears his signature marked as
Ext.6 and the dead body was sent to the S.K.M.C.H. He took
down the statement of the witnesses who have been examined as
PW-2, PW-3 and PW-4 and after completing of the formalities
he found the case true and accordingly submitted charge-sheet
in the court where the accused voluntarily surrendered.
13. The learned Amicus Curiae submits that the
impugned judgment of conviction and order of sentence are not
sustainable in the eye of law or on facts. Learned trial Court has
not applied its judicial mind and erroneously passed the
judgment of conviction and order of sentence and from perusal
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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of the evidences adduced on behalf of the prosecution it is
crystal clear that the prosecution’s case is false and fabricated
and the case is filed due to enmity between the appellants and
the informant as they had land dispute attributed between the
parties. She further submitted that medical evidence given by
the doctor (PW-6) does not support the prosecution case of
death by manual strangulation. PW-6 in para 5 of his oral
evidence clearly stated that the present case was not one of
manual strangulation. Some material might have been used for
strangulating the deceased. She further contended that there is
delay in lodging of the FIR. Though the occurrence took place
at 7:30 AM, the fardbeyan was lodged at 9:00 PM. According to
the witnesses, the deceased was taken to the hospital at
Muzaffarpur but no documentary evidence has been adduced to
prove that the deceased was taken to the hospital. In fact in para
35 of his deposition, PW-5 (Manoj Tiwari/informant) admits
that they had returned to their house from the hospital by 12/1
pm.
13.i. Learned Amicus Curiae further submitted
that place of occurrence has not been established as the IO (PW-
7) did not indicate the date/time at which he inspected the place
of occurrence. Considering that the fardbeyan was lodged at
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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night, at 9 PM, if indeed the IO had inspected the place of
occurrence immediately thereafter, then the question arises as to
the source of light in which the inspection of the place of
occurrence was conducted. The testimony of the IO is silent on
this point. Further, in para 11 of his testimony, the IO blows hot
and cold in the same breath by stating, firstly, that he found
waste on the ground, near the hole in the wall of the house of
the Appellant; then states that he did not find any sign of waste
near the hole in the wall. It is also important to note that no site
map was prepared, and the IO admits in para 10 of his
deposition that he did not record the distance between the house
of the deceased and that of the Appellant.
13.ii. Alternately, it is submitted that there was
no intention on the part of the Appellant to cause the death of
the victim or such bodily injury, to him, that would be sufficient
to cause death. The incident occurred suddenly, on a trivial
issue. There was no premeditation on the part of the Appellant.
The testimony of the eye witnesses do not indicate that the
Appellant used any weapons or that he continued to assault the
deceased even after he had collapsed. The Appellant did not take
undue advantage of the victim when he is said to have
collapsed. In fact, PW-5 (informant/son of the deceased) stated
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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in his evidence that, para 2, that the Appellant caught hold of the
neck of the deceased. No reference is made to the severity with
which the neck was pressed or throttled.
13.iii. Learned Amicus Curiae further submitted
that learned trial Court in para 30 of its judgment admitted the
fact that the accused had no intention to cause death of the
deceased and there is no evidence that there is strangulation for
causing death, but what has been proved that accused had
exchange of hot words with deceased and vulnerable part of the
neck of the deceased slipped/came under the severe grip of the
cross fingers of the accused which resulted in death of the
deceased. She further submitted that learned trial Court in para
33 of its judgment did not mentioned as to under which part of
Section 304 the accused is convicted which creates doubt on
regard to its conviction itself as if there was no intention then
the accused should be sentenced to maximum imprisonment for
a term that may extend to seven years, or with a fine not less
than seventy-five thousand rupees, or with both but the trial
Court sentenced the accused for rigorous imprisonment for ten
years without any fine.
13.iv. Learned Amicus Curiae further submitted
that this appeal is of the year 2008 and occurrence is of the year
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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2005, where, the appellant has suffered and undergone persistent
agony on the account of the same and are struggling for the
defence since last 19-20 years. So, the appellant should have
been acquitted from the conviction as sentenced against them or
period undergone.
14. However, learned APP for the State defends
the impugned judgment of conviction and the order of sentence
submitting that there is no illegality or infirmity in the impugned
judgment and order of sentence, because prosecution has proved
its case against the appellant beyond all reasonable doubts. In
view of the aforesaid statements and the evidence on record,
learned trial Court has rightly convicted the appellant and the
present appeal should not be entertained.
15. At this stage, I would like to appreciate the
relevant extract of entire evidence led by the prosecution before
the Trial Court. I have thoroughly perused the materials on
record and aforesaid judgments referred by the Amicus Curiae
as well as given thoughtful consideration to the submissions
advanced by both the parties.
16. On deeply studied and scrutinized all
evidences, it is evident to note from the deposition of
prosecution witnesses that PW-5 was present at the place of
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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occurrence and constantly through out the trial substantially
supported his fardbeyan. Other prosecution witnesses have also
supported the fardbeyan and statement made by the informant
substantially in their depositions. Further, there was no intention
on the part of the Appellant to cause the death of the victim or
such bodily injury, to him, that would be sufficient to cause
death. The incident occurred suddenly, on a trivial issue. There
was no premeditation on the part of the Appellant. The
testimony of the eye witnesses do not indicate that the Appellant
used any weapons or that he continued to assault the deceased
even after he had collapsed. The Appellant did not take undue
advantage of the victim when he is said to have collapsed. In
fact, PW-5 (informant/son of the deceased) stated in his
deposition para 2, that the Appellant caught hold of the neck of
the deceased. No reference is made to the severity with which
the neck was pressed or throttled.
17. Further, Learned trial Court in para 30 of its
judgment admitted the fact that the accused had no intention to
cause death of the deceased and there is no evidence that there is
manual strangulation for causing death, but what has been
proved that accused had exchange of hot words with deceased
and vulnerable part of the neck of the deceased slipped/came
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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under the severe grip of the cross fingers of the accused which
resulted in death of the deceased. Learned trial Court in para 33
of its judgment did not mentioned as to under which part of
Section 304 the accused is convicted which creates doubt on
regard to its conviction itself as if there was no intention then
the accused should be sentenced under Section 304 part II of the
IPC to maximum imprisonment for a term that may extend to
ten years, or with a fine not less than seventy-five thousand
rupees, or with both but the trial Court sentenced the accused for
rigorous imprisonment for ten years without any fine.
18. In Pulicherla Nagaraju @ Nagaraja Reddy
v. State of Andhra Pradesh (2006) 11 SCC 444 where Hon’ble
Supreme Court enumerated some of the circumstances relevant
to finding out whether there was any intention to cause death on
the part of the accused:
” Therefore, the court should proceed to
decide the pivotal question of intention,
with care and caution, as that will decide
whether the case falls under Section 302 or
304 Part I or 304 Part II. Many petty or
insignificant matters- plucking of a fruit,
straying of cattle, quarrel of children,
utterance of a rude word or even an
objectionable glance, may lead to
altercations and group clashes culminating
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
15/18in deaths. Usual motives like revenge,
greed, jealousy or suspicion may be totally
absent in such cases. There may be no
intention. There may be no pre-meditation.
In fact, there may not even be criminality.
At the other end of the spectrum, there may
be cases of murder where the accused
attempts to avoid the penalty for murder by
attempting to put forth a case that there was
no intention to cause death. It is for the
courts to ensure that the cases of murder
punishable under Section 302, are not
converted into offences punishable under
Section 304 Part I/II, or cases of culpable
homicide not amounting to murder, are
treated as murder punishable under Section
302. The intention to cause death can be
gathered genera/Iv from a combination of a
few or several of the following. among
other. circumstances : (i) nature of the
weapon used; (ii) whether the weapon was
carried by the accused or was picked up
from the spot: (iii) whether the blow is
aimed at a vital part of the body; (iv) the
amount of force employed in causing
injury: (v) whether the act was in the
course of sudden quarrel or sudden fight or
free for all fight: (vi) whether the incident
occurs by chance or whether there was any
pre- meditation: (vii) whether there was any
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
16/18prior enmity or whether the deceased was a
stranger: (viii) whether there was any grave
and sudden provocation. and if so. the
cause for such provocation: (ix) whether it
was in the heat of passion: (x) whether the
person inflicting the injury has taken undue
advantage or has acted in a cruel and
unusual manner: (xi) whether the accused
dealt a single blow or several blows. The
above list of circumstances is, of course, not
exhaustive and there may be several other
special circumstances with reference to
individual cases which may throw light on
the question of intention.”
(emphasis supplied)
19. In Ajit Singh v. State of Punjab (2011) 9
SCC 462, the Court held that “in order to hold whether an
offence would fall under Section 302 or Section 304 Part I of
the Code, the courts have to be extremely cautious in examining
whether the same falls under Section 300 of the Code which
states whether a culpable homicide is murder, or would it fall
under its five exceptions which lay down when culpable
homicide is not murder. In other words, Section 300 states both,
what is murder and what is not. First finds place in Section 300
in its four stated categories, while the second finds detailed
mention in the stated five exceptions to Section 300. The
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
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legislature in its wisdom, thus, covered the entire gamut of
culpable homicide that ‘amounting to murder’ as well as that ‘not
amounting to murder’ in a composite manner in Section 300 of
the Code. Sections 302 and 304 of the Code are primarily the
punitive provisions. They declare what punishment a person
would be liable to be awarded, if he commits either of the
offences.”
20. The Hon’ble Apex Court, in the case of State
of U.P. vs Tribhuwan, (2018) 1 SCC 90 has laid down that, time
spent in custody by a convicted person, both as an under-trial
and as a convicted person, may be considered as jail sentence
awarded to him and he may get the advantage of set-off under
Section 428 of Cr.P.C.
21. Hence, keeping in view all the materials
available on record and the observation of the Hon’ble Apex
Court, it is observed that in the instant case the prosecution has
proved the allegation leveled against the appellant beyond all
reasonable shadow of doubt. As the appellant has struggled for a
long time during the trial procedure and the conviction of the
appellant is upheld for the offence punishable under Section 304
Part II of the IPC but given the long pendency of the trial and
the order suffered by the appellant and there are no adverse
Patna High Court CR. APP (SJ) No.167 of 2008 dt.17-04-2025
18/18
report against the appellant about his conduct otherwise the
same would have been brought to our notice by learned counsel
for the State, so sentence of the appellant is justified to period
undergone and the appellant stands discharged of the liabilities
of his bail bonds, if any.
22. Before parting with this appeal, Secretary,
Patna High Court Legal Services Committee is directed to pay
Rs. 10,000/- (ten thousand) to the learned Amicus Curiae,
namely, Ms. Surya Nilambari towards honorarium for assisting
this Court in the present appeal.
23. Let a copy of first and last page of this
judgment be handed over to the advocate Ms. Surya Nilambari,
learned Amicus Curiae and Office is directed to proceed further
in granting honorarium to him which is to be paid by Patna High
Court Legal Services Committee.
24. Accordingly, this appeal is partly allowed.
(Ramesh Chand Malviya, J)
Brajesh Kumar/-
AFR/NAFR AFR CAV DATE N/A Uploading Date 19.04.2025 Transmission Date 19.04.2025
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