[ad_1]
Jharkhand High Court
Unknown vs The State Of Jharkhand on 23 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Gautam Kumar Choudhary
2025:JHHC:12293-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Criminal Appeal (D.B.) No.553 of 2002
[Against the Judgment of conviction and Order of sentence both dated 20th
August, 2002, passed by learned 2nd Additional Session Judge, Deoghar, in
Session Trial No.173 of 2000 /305 of 2001 arising out of Jasidih PS Case No.58
of 2000]
-----
Ramdeo Mandal, son of late Sukar Mandal, resident of Village-
Madhupur, PS-Jasidih, District-Deoghar ... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
-------
CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
-------
For the Appellant : Mr. Indrajit Sinha, Advocate
Mr. Akhouri Awinash Kumar, Advocate
Ms. Ashwin Priya, Advocate
For the Respondent : Mrs. Priya Shrestha, Spl.PP
C.A.V on 21.03. 2025 Pronounced on 23/04/2025
Per Sujit Narayan Prasad, J.
1. The instant criminal appeal has been filed under section 374(2) of the
Cr.P.C against the judgment of conviction and order of sentence both
dated 20.08.2002, passed by the learned 2nd Additional Session Judge,
Deoghar, in Session Trial No.173 of 2000 /305 of 2001 arising out of
Jasidih PS Case No.58 of 2000 registered under Sections 302 of the
Indian Penal Code whereby and whereunder the appellant has been
convicted under section 302 of the Indian Penal Code and has been
directed to undergo RI for life with a fine of Rs.10,000/- for the offence
under Section 302 of the Indian Penal Code and in default of payment of
fine, further directed to undergo RI for one year.
Factual Matrix
2. This Court, before proceeding to examine the legality and propriety of
the judgment of conviction and order of sentence, deems it fit and proper
2025:JHHC:12293-DB
to refer the background of institution of prosecution case. The
prosecution story in brief as per the allegation made in the First
Information Report reads hereunder as :-
3. The prosecution story as per FIR, in short, is that on the date of
occurrence, i.e, on 08.03.2000 at about 10 P.M. informant’s brother,
namely, Badri Yadav (deceased) had gone to his field for irrigation
purpose where an altercation took place between the deceased and the
accused Ramdeo Mandal on the question as to who will irrigate the field
first as the deceased wanted to irrigate his field first.
4. The accused Ramdeo Mandal and his son Sunil Mandal both got angry
and they assaulted the deceased by means of lathi. On raising hullah, the
informant’s nephew, namely, Ganesh Yadav and his younger brother-
Ramu Yadav reached the place of occurrence and found that both the
accused persons were assaulting the deceased.
5. It is further alleged that on raising hullah, when the villagers were
assembled then the accused persons fled away from the place of
occurrence, thereafter, the informant’s nephew and younger brother
brought the injured deceased to Sadar Hospital, Deoghar, with the help
of other villagers for the purpose of treatment, but due to serious head
injury he was referred to P.M.C.H. on 9.3.2000. Consequently, on
9.3.2000 at about 10.00 P.M, the deceased was admitted into the
P.M.C.H. in a state of un-consciousness and ultimately, succumbed to the
injury on 12.3.2000 at about 10.00 P.M. during his treatment in the
P.M.C.H., Patna.
6. Accordingly, the fardbeyan was recorded by the Pirbahore Police Station
and the same was forwarded to Jasidih Police Station on 13.3.2000 for
instituting a case whereafter Jasidih P.S. Case No. 58 of 2000 under
2
2025:JHHC:12293-DB
section 302 of the Indian Penal Code was registered against the appellant
and his son, namely, Sunil Mandal on 02.04.2000.
7. After due investigation chargesheet was submitted against the appellant
and his son, namely, Sunil Mandal upon which cognizance had been
taken by the learned trial Court and, accordingly, the case was committed
to the Court of Sessions for trial.
8. It needs to refer herein that the son of the appellant, namely, Sunil
Mandal was found to be juvenile, therefore his case was split up and the
same was sent to the J.J. Court for trial vide order dated
21.6.2000/4.7.2000.
9. The present appellant stand charged under Section 302 of the Indian
Penal Code for committing murder of Badri Yadav, the deceased.
10. The said charge stands read over and explained to the accused person in
Hindi to which he pleaded not guilty and claimed to be tried.
11. The prosecution has altogether examined ten witnesses, namely, PW1-
Parsuram Yadav, PW2-Babumani Yadav, PW3-Ganesh Yadav (the son
of the deceased), PW4-Ramu Yadav, PW5-Godabari Devi (the mother of
the deceased), PW6-Parwati Devi (the wife of the deceased), PW7-Baiju
Mahto (informant and brother of the deceased), PW8-Rasbihar Paswan
(the Investigating Officer), PW9-Ashok Kumar Mishra (the doctor), who
conducted postmortem examination over the dead body, and PW10-Punit
Deo.
12. The learned trial Court, after recording the evidence of witnesses, in
examination-in-chief and cross-examination, recorded the statement of
the accused/appellant found the charges levelled against the appellant
proved beyond all reasonable doubts.
3
2025:JHHC:12293-DB
13. Accordingly, the appellant had been found guilty and convicted for the
offence punishable under section 302 of the Indian Penal Code and has
been directed to undergo RI for life with a fine of Rs.10,000/- for the
offence under Section 302 of the Indian Penal Code and in default of
payment of fine, further directed to undergo RI for one year
14. The aforesaid order of conviction and sentence is subject matter of instant
appeal.
Submission of the learned counsel for the appellant:
15. Learned counsel for the appellant has submitted that the impugned
Judgment of conviction and Order of sentence passed by the learned trial
Court cannot be sustained in the eyes of law.
16. The following grounds have been taken by the learned counsel for the
appellant in assailing the impugned judgment of conviction and sentence:
(i) Some of the prosecution witnesses i.e, PW.1 and P.W.2
have been declared hostile and the testimony of PW3 and
PW4 have been relied by the learned trial Court considering
them to be eye witnesses but if the testimony of the PW3
and PW4 will be taken in to consideration together it would
be evident that their testimonies are in contradiction to each
other.
(ii) Further the testimony of PW4 is also in contradiction to the
testimony of Investigating Officer who has been examined
as PW8, to the extent that PW4 has deposed in his testimony
that he was present at the place of occurrence but the
aforesaid fact has not been supported by the Investigating
Officer, since he has deposed in his testimony at paragraph-
14 that the PW4 at the time of recording statement under
4
2025:JHHC:12293-DB
section 161 Cr.PC has stated that he had seen the appellant
fleeing away from the place of occurrence, therefore, the
consideration which has been relied by the learned trial
Court by considering the testimony of PW4 to be the
testimony of eye witness cannot be said to be just and
proper.
(iii) The informant is not the eye witness, rather he is a hearsay
witness as he was not present at the place of occurrence and
the conviction of the present appellant based upon his
version is bad and fit to be set aside.
(iv) Motive behind the alleged occurrence as testified by the
PW3-Ganesh Yadav and PW4-Ramu Yadav in their
deposition that due to question of irrigating the wheat field
at first, some altercation arose between the appellant and the
deceased whereafter the appellant and his son assaulted the
victim by means of lathi due to which the victim sustained
head injury. The said mensrea as stated by the informant
cannot be accepted reason being that the informant was not
present at the place of occurrence and he is not the eye
witness, rather he is only a hearsay witness as PW3 and
PW6 both have deposed that at the time of occurrence the
informant was doing his job as Chaukidar at a distant place
and not present at the place of occurrence.
(v) Further, the present appellant has been convicted on the
basis of evidence adduced by PW3, PW4, PW5, PW6 and
PW7 who are the interested witnesses, thus, the conviction
of the appellant is bad and fit to be set aside.
5
2025:JHHC:12293-DB
(vi) Further, the learned trial Court failed to appreciate the fact
that neither any incriminating article or lathi was recovered
nor any bloodstained cloth was recovered from the
possession of the appellant or his son and, as such, it is
difficult to ascertain that the appellant has assaulted the
victim due to which he sustained head injury and later on he
died.
(vii) The fardbeyan has been recorded after five days of the
occurrence which is afterthought and, as such, there is
probability that the appellant has falsely been implicated in
the present case due to ulterior motive.
(viii) The prosecution story is also to vitiate on the ground that the
fardbeyan although was recorded on 13.03.2000 while the
formal FIR was instituted on 02.04.2000 and, as such, there
is delay of considerable period from the date of institution
of fardbeyan to that of institution of formal FIR.
(ix) The alternative argument has been made that even accepting
the evidence of prosecution witnesses in entirety then also
the instant case cannot be said to be committed under
section 302 of the IPC, rather it would be said to be a case
under section 304 part II of the IPC, since, the alleged
occurrence was not planned in advance but it happened in a
spur of moment.
17. The learned counsel for the appellant, based upon the aforesaid grounds,
has submitted that the learned trial Court has not taken in to consideration
of the aforesaid facts as such impugned judgment requires interference,
hence, not sustainable in the eyes of law.
6
2025:JHHC:12293-DB
Submission of the learned counsel for the state respondent:
18. While defending the judgment of conviction and sentence the learned
APP appearing for the State has raised the following arguments in
response to the grounds raised by the learned counsel for the appellant
which has been referred herein:
(i) It is a case where the prosecution has been able to prove the
charge beyond all reasonable doubt.
(ii) Admittedly the prosecution based upon the cogent
testimony of the eyewitness who is none but the son and
brother of the deceased has proved the case beyond all
reasonable doubts.
(iii) It has been submitted that PW3 and PW4 who have been
considered by the learned trial Court to be the eye witnesses
cannot be said to suffer from an error, reason being that the
PW3 in his examination-in-chief has deposed that he was
present at the time when his father (the deceased) was being
assaulted by the present appellant and the said aspect of the
matter has also been corroborated by the testimony of PW4.
(iv) So far as the contention raised on behalf of the appellant that
the Investigating Officer (PW8) has not supported the
testimony of PW4, since, the IO at paragraph no.14 has
stated that PW4 had seen the appellant fleeing away from
the place of occurrence, but that is not the correct fact if the
same will be compared from the case diary wherein P.W.4
in his statement under Section 161 Cr.P.C had stated that
he had seen that the appellant along with other juvenile
accused namely Sunil Mandal was assaulting his brother.
7
2025:JHHC:12293-DB
(v) So far as the argument advanced on behalf of the appellant
that at best it is the case of Section 304 part-II of the IPC is
not tenable as the doctor has opined that death was caused
due to head injury which has been caused by hard and blunt
object.
(vi) Further, all the prosecution witnesses have conclusively
supported the prosecution version, particularly, PW3 and
PW4 who are the eyewitness of the alleged occurrence and
had seen the appellant fleeing away from the place of
occurrence when they reached at the place of occurrence.
(vii) So far question of motive is concerned, it is settled position
of law that if there is direct evidence available on record
then motive is immaterial in such cases.
(viii) So far, the issue of recovery of any blood-stained cloth or
weapon or lathi is concerned, the case of prosecution cannot
be disbelieved on the aforesaid score as an eye witness and
other witnesses have fully supported the case of the
prosecution.
(ix) The Investigating Officer has corroborated the occurrence
by supporting the testimony of the prosecution witnesses as
also the occurrence has been corroborated by the medical
evidence wherein the Doctor has found the nature of injuries
having been caused by hard and blunt substance.
19. The learned APP appearing for the State, based upon the aforesaid
premise, has submitted that the impugned judgment does not suffer from
any error, hence the instant appeal is fit to be dismissed.
8
2025:JHHC:12293-DB
Analysis
20. We have heard learned counsel for the parties, perused the documents
available on record as also the finding recorded by the trial Court in the
impugned judgment.
21. We have also gone through the testimonies of the witnesses as available
in the Trial Court Records as also the exhibits.
22. Learned trial Court, based upon the testimonies of witnesses, has passed
the judgment of conviction and has convicted the appellant under Section
302 of Indian Penal Code and sentenced him to undergo imprisonment
for life for the offence under Section 302 of the IPC.
23. This Court before considering the argument advanced on behalf of the
parties is now proceeding to consider the testimonies of witnesses which
have been recorded by the learned trial Court.
24. It is evident from record that in order to substantiate the case, the
prosecution had altogether examined 10 witnesses and they were PW1-
Parsuram Yadav, PW2-Babumani Yadav, PW3-Ganesh Yadav (the son
of the deceased), PW4-Ramu Yadav, PW5-Godabari Devi (the mother of
the deceased), PW6-Parwati Devi (the wife of the deceased), PW7-Baiju
Mahto (informant), PW8-Rasbihar Paswan (the Investigating Officer),
PW9-Ashok Kumar Mishra (the doctor), who conducted postmortem
examination over the dead body, and PW10-Punit Deo.
25. P.W.1-Parshuram Yadav and P.W.2-Babumani Yadav have been
declared hostile by the prosecution as they had altogether denied to have
any knowledge about the occurrence and they had also denied to have
given any statement before the police.
26. P.W.3-Ganesh Yadav (son of the deceased) had stated in his
examination-in-chief that about 08 months ago his father was irrigating
9
2025:JHHC:12293-DB
the wheat field at night, where Ramdeo Mandal (appellant herein) and
Sunil Mandal (juvenile accused) was also present. He had further testified
that there was a quarrel with the accused Ramdeo Mandal and Sunil
Mandal on the question as to which side will irrigate the field first and
thereafter his father Badri Yadav (deceased) was assaulted on the head
by the appellant and accused Sunil Mandal by means of Lathi.
27. He has further testified that he was also present there and when he had
raised the alarm then villagers were assembled there and thereafter
accused persons fled away. He had further deposed that his father was
taken to Sadar Hospital, Deoghar wherefrom he was referred to Patna at
PMCH where he died during treatment.
28. P.W.3 in his cross examination at para-4 had stated that his father was
having two brothers namely Ramu Mahto and Baiju Mahto (P.W.7,
informant) and at the time of occurrence his uncle namely Baiju Mahto
(P.W.7, informant) was on his duty (deceased). Further in para 7 of his
cross-examination he had stated that he has no idea that how his uncle
Baiju Mahto (P.W.7, informant) came to know about the occurrence and
in the same paragraph this witness had testified that he had informed to
his uncle by the telephone. At paragraph-18 of the cross-examination this
witness had denied that he had stated before the officers of Sadar Hospital
that his father (deceased) was milking a cow in the house when he got
injured as a brick had fallen on his head.
29. P.W.4-Ramu Yadav (brother of the deceased) had stated in his
examination-in-chief that alleged occurrence was of about 09 months
ago, he had heard the voice of his brother from wheat field and thereafter
he along with his nephew namely Ganesh Yadav (P.W.3) had rushed to
the wheat field and saw that the accused Ramdeo Mandal (appellant
10
2025:JHHC:12293-DB
herein) and Sunil Mandal was assaulting his brother by means of Lathi.
He had further testified that due to said assault his brother became
unconscious and fallen down and when he had raised the alarm then
villagers were assembled there and thereafter accused persons fled away.
He had further stated that he and his nephew with help of other villagers
had taken the deceased to Sadar hospital, Deoghar wherefrom he was
referred to Patna Hospital where he died during treatment.
30. P.W.4 in his cross examination at para-5 had stated that when he had
rushed at the place of occurrence then he saw that Ramdeo Mandal
(appellant) and Sunil Mandal was fleeing away. Further at para-6 of his
cross-examination he had stated that when he reached at house from the
wheat field, he had not said to any one that he saw the Ramdeo Mandal
(appellant) and Sunil Mandal while they were fleeing away.
31. P.W.5-Godavari Devi (the mother of the deceased) stated in her
examination-in-chief that about 10 months ago at about 10.00 P.M. her
deceased son Badri Yadav had gone to irrigate his field where there was
a quarrel with accused Ramdeo Mandal(appellant) and Sunil Mandal on
the question as to which side will irrigate the field first. She had further
stated that her son Badri Yadav(deceased) was assaulted on the head by
the appellant and Sunil Mandal by means of Lathi. She further stated that
her deceased son was taken to Sadar hospital, Deoghar wherefrom he was
referred to Patna Hospital where he died during treatment.
In her cross examination she has stated that she had heard alarms
from the field which is situated near to her house.
32. P.W. 6-Parvati Devi is the wife of the deceased. She had stated in her
examination-in-chief that about 14 months ago in the alleged night at
about 10.00 P.M. there was a quarrel between her deceased husband and
11
2025:JHHC:12293-DB
the appellant and Sunil Mandal and on the question of irrigation of wheat
field because both the sides wanted to irrigate their field first in point of
time and in that quarrel her husband was assaulted by the appellant and
Sunil Mandal by means of Lathi. She has further stated that she reached
the place of occurrence after her son Ganesh (P.W.3) and brother-in-law
Ramu (P.W.4) reached the place of occurrence, i.e., wheat field and found
her deceased husband in injured and unconsciousness state.
In cross examination at para-5 she had stated that her brother-in-
law (P.W.7) had come to house from his duty after next day of the
occurrence.
33. P.W.7 Baiju Mahto has stated in examination-in-Chief that on 8.3.2000
at about 9.30 P.M. his brother Badri (deceased) had gone to his wheat
field for irrigation where an altercation between the deceased and accused
Ramdeo Nandal and Sunil Mandal took place on the question as to which
side will irrigate the wheat filed as both sides wanted to irrigate their field
first and thereafter the appellant and Sunil Mandal started abusing and
assaulted his brother (deceased) on the head by means of Lathi due to
which his brother fell down.
34. He had further testified that after seeing the villagers the accused persons
fled away from the place of occurrence. He had further testified that
brother was taken to Sadar Hospital, Deoghar, with the help of other
villagers for the purpose of treatment, but due to serious head injury he
was referred to P.M.C.H. on 9.3.2000. On 9.3.2000 at about 10.00 P.M.
his brother was admitted into the P.M.C.H. in a state of un-consciousness
and ultimately, succumbed to the injury on 12.3.2000 at about 10.00 P.M.
during treatment at the P.M.C.H., Patna.
12
2025:JHHC:12293-DB
35. He had further stated that on 13.03.2000 his fardbeyan was recorded upon
which Parshu Ram Yadav (P.W.1) had made his signature as witness. He
further testified that the inquest report was also prepared before him and
Parshu Ram Yadav had also made his signature upon the same. In cross-
examination at paragraph-3 he had deposed that on the alleged day of
occurrence, i.e.,08.03.2000 he was not on duty.
36. P.W.8-Rasbihari Paswan is the person who had investigated the case. He
had testified that on 02.04.2000 a letter was received to his police station
from Pirbahor police station and thereafter a FIR being Jasidih P.S.Case
no. 58 of 2000 was instituted by station in-charge namely P.C.Roy and,
accordingly, investigation of the said case was handed over to him.
37. He had testified in cross-examination at paragraph-9 that he had neither
prepared the sketch of the place of the occurrence nor had taken the
blood-stained soil from the place of occurrence. Further he had stated at
para-14 of the cross-examination that the witness namely Ganesh Yadav
(P.W.3) had stated to him that he had seen his father in injured condition.
Further he had deposed at para-15 that the witness namely Raju Yadav
(P.W.4) had stated to him that he had seen the accused /appellant when
they were fleeing away.
38. P.W.9 is Ashok Kumar Mishra who has formally proved the post mortem
examination report which had been prepared by the doctor Arun Kumar
Singh. This witness had identified the signature and handwriting of
doctor Arun Kumar Singh which has been marked as Exhibit 3. For ready
reference the post-mortem report is being referred herein as under:
i) One stitched wound of 6 ½” length semilunar on left side skull
concavity towards it ear, 1 ½” leashed from lt. eyebrow, 1″ left
from right ear and 2″ from left ear.
ii) One bruise of ½” x ½” on left elbow .
iii) One bruise ½” x ½” on left superior iliac spine.
13
2025:JHHC:12293-DB
On dissection:
iv) Hematoma under scalp as found in Lt. Temporal, Lt.-Parietal
and Lt. frontal region..
v) Bone was found serit in 2 ½” x 2 ½” area on lt. side of skull
involving Lt. parietal bone behind from Lt. orbit and 1 ½ ” from
lt. ear. One linear fracture of 4 ½” length from lt. frontal to rt
parietal bone obliquely, ½” behind from lt. …. and 6”from Rt ear.
Extradural hematoma was found on left side of brain was found
depressed on lt. side. Stomach contains about 100 ml. green lower
fluid. In general, all viscera were found congested.
Opinion:
1) Time since death :12 to 24 hrs. approx. from the time
of PM examination.
2) Cause of death: Head Injury.
3) Nature of violence: Hard and blunt object and its
impact, however opinion regarding injury no.1 should
be obtained from the surgeon concerned.
39. P.W.10 -Punit Deo has identified the signature and handwriting of the
ASI Nageshwar Singh who had written the fardbeyan and the same has
been marked as Ext-1/2.
40. It is evident from the aforesaid testimonies of the witnesses that P.W.1
and P.W.2 have been declared hostile by the prosecution. Further the
prosecution witness P.W.9 and P.W.10 is formal in nature as they had not
stated anything on point of occurrence. It appears that P.W.3, P.W.4, and
P.W.7 had claimed themselves as an eyewitness of the alleged
occurrence. Further, P.W.5 and P.W.6 are the mother and wife of the
deceased respectively and they are hearsay witnesses of the occurrence.
41. From the perusal of the impugned order of conviction and sentence it is
evident that the learned trial Court had nullified the claim of the P.W.7
(Informant) as an eyewitness but at the same time P.W.3, P.W.4, had been
considered as an eyewitness of the alleged occurrence and the trial Court
based upon the testimony of said eyewitness had convicted the present
appellant.
14
2025:JHHC:12293-DB
42. Now coming to the submission of the learned counsel for the appellant
wherein while referring the chink in the prosecution case as referred
hereinabove, he has contended that at best this is a case of Section 304
part-II of the IPC as there is no evidence available to premeditation
among the accused person in order to cause the alleged occurrence and
also the assault which has been caused by lathi was made in spur of the
moment by the appellant.
43. This Court, in order to appreciate the submissions advanced on behalf of
appellant with respect to the culpability of the appellant of commission
of offence under Section 302 or under Section 304 Part-I or Part-II of the
Indian Penal Code vis-à-vis the evidences adduced on behalf of the
parties, deems it fit and proper to refer certain judicial pronouncements
regarding applicability of the offence said to be committed under Section
302 or 304 Part-I or Part-II of the Indian Penal Code. 35. In the case of
Nankaunoo v. State of Uttar Pradesh reported in (2016) 3 SCC 317 it
has been held that the intention is different from motive. It is the intention
with which the act is done that makes a difference in arriving at a
conclusion whether the offence is culpable homicide or murder, for ready
reference paragraph 11 is being quoted and referred hereunder as :-
“11. Intention is different from motive. It is the intention with which the
act is done that makes a difference in arriving at a conclusion whether
the offence is culpable homicide or murder. The third clause of Section
300 IPC consists of two parts. Under the first part it must be proved
that there was an intention to inflict the injury that is present and under
the second part it must be proved that the injury was sufficient in the
ordinary course of nature to cause death. Considering clause Thirdly
of Section 300 IPC and reiterating the principles stated in Virsa Singh
case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash
v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2
SCC 32] ,para 12, this Court held as under: (SCC p. 41) “12. Referring
to these observations, Division Bench of this Court in Jagrup Singh15
2025:JHHC:12293-DBcase [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed
thus: (SCC p. 620, para 7) „7. … These observations of Vivian Bose, J.
have become locus classicus. The test laid down in Virsa Singh case
[Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability
of clause Thirdly is now ingrained in our legal system and has become
part of the rule of law.‟ The Division Bench also further held that the
decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958
SC 465] has throughout been followed as laying down the guiding
principles. In both these cases it is clearly laid down that the
prosecution must prove (1) that the body injury is present, (2) that the
injury is sufficient in the ordinary course of nature to cause death, (3)
that the accused intended to inflict that particular injury, that is to say
it was not accidental or unintentional or that some other kind of injury
was intended. In other words clause Thirdly consists of two parts. The
first part is that there was an intention to inflict the injury that is found
to be present and the second part that the said injury is sufficient to
cause death in the ordinary course of nature. Under the first part the
prosecution has to prove from the given facts and circumstances that
the intention of the accused was to cause that particular injury.
Whereas under the second part whether it was sufficient to cause death,
is an objective enquiry and it is a matter of inference or deduction from
the particulars of the injury. The language of clause Thirdly of Section
300 speaks of intention at two places and in each the sequence is to be
established by the prosecution before the case can fall in that clause.
The „intention‟ and „knowledge‟ of the accused are subjective and
invisible states of mind and their existence has to be gathered from the
circumstances, such as the weapon used, the ferocity of attack,
multiplicity of injuries and all other surrounding circumstances. The
framers of the Code designedly used the words „intention‟ and
„knowledge‟ and it is accepted that the knowledge of the consequences
which may result in doing an act is not the same thing as the intention
that such consequences should ensue. Firstly, when an act is done by a
person, it is presumed that he must have been aware that certain
specified harmful consequences would or could follow. But that
knowledge is bare awareness and not the same thing as intention that
such consequences should ensue. As compared to “knowledge‟,
“intention‟ requires something more than the mere foresight of the
consequences, namely, the purposeful doing of a thing to achieve a
particular end.”
44. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976)
4 SCC 382, the Hon’ble Apex Court, while clarifying the distinction
16
2025:JHHC:12293-DB
between section 299 and 300 of the Indian Penal Code and their
consequences, held as under: —
“12. In the scheme of the Penal Code, “culpable homicide‟ is genus and
„murder‟ is species. All “murder‟ is “culpable homicide‟ but not vice-
versa. Speaking generally, “culpable homicide not amounting to murder.
For the purpose of fixing punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three degrees of
culpable homicide. The first is what may be called ‘culpable homicide of
the first degree’. This is the greatest form of culpable homicide, which is
defined in Section 300 as ‘murder’. The second may be termed as
‘culpable homicide of the second degree’. This is punishable under the
first part of Section 304. Then, there is ‘culpable homicide of the third
degree’. This is the lowest type of culpable homicide and the punishment
provided for it is, also, the lowest among “12. In the scheme of the Penal
Code, „culpable homicide‟ is genus and „murder‟ is species. All
„murder‟ is „culpable homicide‟ but not vice-versa. Speaking
generally, „culpable homicide not amounting to murder‟.For the
purpose of fixing punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of culpable
homicide. The first is what may be called ‘culpable homicide of the first
degree’. This is the greatest form of culpable homicide, which is defined
in Section 300 as ‘murder’. The second may be termed as ‘culpable
homicide of the second degree’. This is punishable under the first part of
Section 304. Then, there is ‘culpable homicide of the third degree’. This
is the lowest type of culpable homicide and the punishment provided for
it is, also, the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the second
part of Section 304.
[Emphasis supplied]
45. Recently the Hon’ble Apex Court while considering the various
decisions on the aforesaid issue has laid down the guidelines in the case
of Anbazhagan Vs. State Represented by the Inspector of Police
reported in 2023 SCC OnLine SC 857 which are being quoted as under:
“66. Few important principles of law discernible from the aforesaid
discussion may be summed up thus:–
(1) When the court is confronted with the question, what offence the
accused could be said to have committed, the true test is to find out the
intention or knowledge of the accused in doing the act. If the intention
or knowledge was such as is described in Clauses (1) to (4) of Section
17
2025:JHHC:12293-DB300 of the IPC, the act will be murder even though only a single injury
was caused. —
(2) Even when the intention or knowledge of the accused may fall within
Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which
would otherwise be murder, will be taken out of the purview of murder,
if the accused’s case attracts any one of the five exceptions enumerated
in that section. In the event of the case falling within any of those
exceptions, the offence would be culpable homicide not amounting to
murder, falling within Part 1 of Section 304 of the IPC, if the case of
the accused is such as to fall within Clauses (1) to (3) of Section 300 of
the IPC. It would be offence under Part II of Section 304 if the case is
such as to fall within Clause (4) of Section 300 of the IPC. Again, the
intention or knowledge of the accused may be such that only 2nd or 3rd
part of Section 299 of the IPC, may be attracted but not any of the
clauses of Section 300 of the IPC. In that situation also, the offence
would be culpable homicide not amounting to murder under Section
304 of the IPC. It would be an offence under Part I of that section, if
the case fall within 2nd part of Section 299, while it would be an offence
under Part II of Section 304 if the case fall within 3rd part of Section
299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within
the first two clauses of cases of culpable homicide as described in
Section 299 of the IPC it is punishable under the first part of Section
304. If, however, it falls within the third clause, it is punishable under
the second part of Section 304. In effect, therefore, the first part of this
section would apply when there is “guilty intention,‟ whereas the
second part would apply when there is no such intention, but there is
“guilty knowledge‟.
(4) Even if single injury is inflicted, if that particular injury was
intended, and objectively that injury was sufficient in the ordinary
course of nature to cause death, the requirements of Clause 3rdly to
Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases :
(i) when the case falls under one or the other of the clauses of Section
300, but it is covered by one of the exceptions to that Section,
(ii) when the injury caused is not of the higher degree of likelihood
which is covered by the expression “sufficient in the ordinary course of
nature to cause death‟ but is of a lower degree of likelihood which is
generally spoken of as an injury “likely to cause death‟ and the case
does not fall under Clause (2) of Section 300 of the IPC,
(iii) when the act is done with the knowledge that death is likely to ensue
but without intention to cause death or an injury likely to cause death.
18
2025:JHHC:12293-DB
To put it more succinctly, the difference between the two parts of
Section 304 of the IPC is that under the first part, the crime of murder
is first established and the accused is then given the benefit of one of
the exceptions to Section 300 of the IPC, while under the second part,
the crime of murder is never established at all. Therefore, for the
purpose of holding an accused guilty of the offence punishable under
the second part of Section 304 of the IPC, the accused need not bring
his case within one of the exceptions to Section 300 of the IPC.
(6) The word “likely‟ means probably and it is distinguished from more
“possibly‟. When chances of happening are even or greater than its not
happening, we may say that the thing will „probably happen‟. In
reaching the conclusion, the court has to place itself in the situation of
the accused and then judge whether the accused had the knowledge that
by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC)
and murder (Section 300 of the IPC) has always to be carefully borne
in mind while dealing with a charge under Section 302 of the IPC.
Under the category of unlawful homicides, both, the cases of culpable
homicide amounting to murder and those not amounting to murder
would fall. Culpable homicide is not murder when the case is brought
within the five exceptions to Section 300 of the IPC. But, even though
none of the said five exceptions are pleaded or prima facie established
on the evidence on record, the prosecution must still be required under
the law to bring the case under any of the four clauses of Section 300
of the IPC to sustain the charge of murder. If the prosecution fails to
discharge this onus in establishing any one of the four clauses of
Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder
would not be made out and the case may be one of culpable homicide
not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mensrea. If Clause
thirdly of Section 300 is to be applied, the assailant must intend the
particular injury inflicted on the deceased. This ingredient could rarely
be proved by direct evidence. Inevitably, it is a matter of inference to
be drawn from the proved circumstances of the case. The court must
necessarily have regard to the nature of the weapon used, part of the
body injured, extent of the injury, degree of force used causing the
injury, the manner of attack, the circumstances preceding and attendant
on the attack.
(9) Intention to kill is not the only intention that makes a culpable
homicide a murder. The intention to cause injury or injuries sufficient
in the ordinary cause of nature to cause death also makes a culpable
homicide a murder if death has actually been caused and intention to
19
2025:JHHC:12293-DB
cause such injury or injuries is to be inferred from the act or acts
resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of
the victim, no inference, as a general principle, can be drawn that the
accused did not have the intention to cause the death or that particular
injury which resulted in the death of the victim. Whether an accused
had the required guilty intention or not, is a question of fact which has
to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention
to cause death of any person or to cause bodily injury to him and the
intended injury is sufficient in the ordinary course of nature to cause
death, then, even if he inflicts a single injury which results in the death
of the victim, the offence squarely falls under Clause thirdly of Section
300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty
intention or guilty knowledge in a case where only a single injury is
inflicted by him and that injury is sufficient in the ordinary course of
nature to cause death, the fact that the act is done without premeditation
in a sudden fight or quarrel, or that the circumstances justify that the
injury was accidental or unintentional, or that he only intended a simple
injury, would lead to the inference of guilty knowledge, and the offence
would be one under Section 304 Part II of the IPC.
67. We once again recapitulate the facts of this case. On the fateful day
of the incident, the father and son were working in their agricultural
field early in the morning. They wanted to transport the crop, they had
harvested and for that purpose they had called for a lorry. The lorry
arrived, however, the deceased did not allow the driver of the lorry to
use the disputed pathway. This led to a verbal altercation between the
appellant and the deceased. After quite some time of the verbal
altercation, the appellant hit a blow on the head of the deceased with
the weapon of offence (weed axe) resulting in his death in the hospital.
68. Looking at the overall evidence on record, we find it difficult to
come to the conclusion that when the appellant struck the deceased with
the weapon of offence, he intended to cause such bodily injury as was
sufficient in the ordinary course of nature to cause death. The weapon
of offence in the present case is a common agriculture tool. If a man is
hit with a weed axe on the head with sufficient force, it is bound to
cause, as here, death. It is true that the injuries shown in the post
mortem report are fracture of the parietal bone as well as the temporal
bone. The deceased died on account of the cerebral compression i.e.
internal head injuries. However, the moot question is – whether that by
itself is sufficient to draw an inference that the appellant intended to
20
2025:JHHC:12293-DB
cause such bodily injury as was sufficient to cause death. We are of the
view that the appellant could only be attributed with the knowledge that
it was likely to cause an injury which was likely to cause the death. It is
in such circumstances that we are inclined to take the view that the case
on hand does not fall within clause thirdly of Section 300 of the IPC.
69. In the aforesaid view of the matter and more particularly bearing
the principles of law explained aforesaid, the present appeal is partly
allowed. The conviction of the appellant under Section 304 Part I of the
IPC is altered to one under Section 304 Part II of the IPC. For the
altered conviction, the appellant is sentenced to undergo rigorous
imprisonment for a period of five years.”
46. In the backdrop of the aforesaid discussion of proposition of law, this
Court in the instant case is to consider following issues: –
(i) Whether the material as has come in course of trial is sufficient to
attract the ingredients of offence committed under Section 302 of
the Indian Penal Code? or
(ii) Whether the case is said to be covered under the exception to
Section 300 of the Indian Penal Code? or
(iii) Whether on the basis of factual aspect, the case will come under
the purview of Part-I of Section 304 or Part-II thereof? Or
(iv) Whether the appellant is entitled for acquittal in absence of cogent
evidences?
47. Since, all the aforesaid issues are inextricably interlinked, the same are
being discussed and decided hereinbelow together.
48. It needs to refer herein that Section 299 I.P.C. speaks about culpable
homicide wherein it has been stipulated that 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. Thus, Section 299 defines the offence of
culpable homicide which consists in the doing of an act – (a) with the
21
2025:JHHC:12293-DB
intention of causing death; (b) with the intention of causing such bodily
injury as is likely to cause death; (c) with the knowledge that the act is
likely to cause death, ―intent‖ and ―knowledge as the ingredients of
Section 299 postulates existence of the positive mental attitude and this
mental condition is the special mensrea necessary for the offence. The
knowledge of 3rd condition contemplates knowledge or the likelihood of
the death of the person.
49. If the offence which is covered by one of the clauses enumerated above,
would be liable to be convicted under Section 304 IPC. If the offence is
such that which is covered by clause (a) or (b) mentioned above i.e.
Section 299 IPC, the offender would be liable to be convicted under part
I IPC as it uses the expression that death is caused with the intention of
causing death or of causing such bodily injury as is likely to cause death,
where intention is dominant factor. However, if the offence is such which
is covered by clause (c) mentioned above, the offender would be liable to
be convicted under Section 304-Part II IPC because of the use of the
expression ―if the act is done with the knowledge that is likely to cause
death but without any intention to cause death or to cause bodily injury
as is likely to cause death‖ where knowledge is a dominant factor.
50. The Hon’ble Apex Court while considering the aforesaid fact, in the case
of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been
pleased to held at paragraph 32 & 33 which is being quoted hereunder as:
“32. For this purpose we have to go to Section 299 which defines
“culpable homicide”. This offence consists in the doing of an act (a)
with the intention of causing death, or (b) with the intention of causing
such bodily injury as is likely to cause death, or (c) with the knowledge
that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR
1966 SC 148 : 1966 Cri LJ 171] x”intent” and “knowledge” in the
ingredients of Section 299 postulate the existence of positive mental
22
2025:JHHC:12293-DBattitude and this mental condition is the special mensrea necessary for
the offence. The guilty intention in the first two conditions contemplates
the intended death of the person harmed or the intentional causing of
an injury likely to cause his death. The knowledge in the third condition
contemplates knowledge of the likelihood of the death of the person.”
51. Thus, while defining the offence of culpable homicide and murder, the
framers of the Indian Penal Code laid down that the requisite intention or
knowledge must be imputed to the accused when he committed the act
which caused the death in order to hold him guilty for the offence of
culpable homicide or murder as the case may be.
52. The framers of the Indian Penal Code designedly used the two words
intention and knowledge, and it must be taken into consideration that the
framers intended to draw a distinction between these two expressions.
The knowledge of the consequences which may result in the doing of an
act is not the same thing as the intention that such consequences should
ensue. Except in cases where mens rea is not required in order to prove
that a person had certain knowledge, he must have been aware that certain
specified harmful consequences would or could follow.
53. In view of Section 299 of the Indian Penal Code, the material relied upon
by the prosecution for framing of charge under Section 304 Part-II must
be at least prima facie indicate that the accused has done an act which has
caused death with at least such a knowledge that such act was likely to
cause death.
54. The Hon’ble Apex Court, in Keshub Mahindra v. State of M.P. reported
in (1996) 6 SCC 129 has been pleased to hold as under paragraph 20
which reads hereunder as :-
“20. — We shall first deal with the charges framed against the accused
concerned under the main provisions of Section 304 Part II IPC. A look
at Section 304 Part II shows that the accused concerned can be charged
under that provision for an offence of culpable homicide not amounting23
2025:JHHC:12293-DBto murder and when being so charged if it is alleged that the act of the
accused concerned 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 the charged offences would fall under
Section 304 Part II. However before any charge under Section 304 Part
II can be framed, the material on record must at least prima facie show
that the accused is guilty of culpable homicide and the act allegedly
committed by him must amount to culpable homicide. However, if the
material relied upon for framing such a charge against the accused
concerned falls short of even prima facie indicating that the accused
appeared to be guilty of an offence of culpable homicide Section 304
Part I or Part II would get out of the picture. In this connection we have
to keep in view Section 299 of the Penal Code, 1860 which defines
culpable homicide. It lays down that: “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.” Consequently the material relied upon
by the prosecution for framing a charge under Section 304 Part II must
at least prima facie indicate that the accused had done an act which
had caused death with at least such a knowledge that he was by such
act likely to cause death. —”
55. Further, Section 300 of Indian Penal Code speaks about murder under
which it has been stipulated that except in the cases hereinafter excepted,
culpable homicide is murder, if the act by which the death is caused is
done with the intention of causing death, or, secondly, if it is done 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
thirdly, if it is done 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, or fourthly, if the person
committing the act knows that it is so imminently dangerous that it must,
in all probability, cause death, or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.
24
2025:JHHC:12293-DB
56. It is, thus, evident that the punishment under Section 302 of the Indian
Penal Code shall not apply if any of the conditions mentioned above, are
not fulfilled. This means that if the accused has not intentionally killed
someone then murder cannot be proved. Apart from this, Section 300 of
the Indian Penal Code mentions certain exceptions for offence of murder,
which are as follows :-
(a) If a person is suddenly provoked by a third party and loses his
self-control, and as a result of which causes the death of another
person or the person who provoked him, it won’t amount to murder
subject to proviso as provided.
(b) When a person under the right of private defence causes the death
of the person against whom he has exercised this right without any
premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful
intention, causes the death of a person.
(d) If it is committed without premeditation in a sudden fight in the
heat of passion upon a sudden quarrel and without the offender
having taken undue advantage or acted in a cruel or unusual manner.
Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes
the risk of death with his own consent.
57. All these exceptions mentioned above shall come under the purview of
Section 304 IPC and will be termed as culpable homicide not amounting
to murder.
58. It is, thus, evident that the parameters which are to be followed while
convicting a person of commission of crime of murder will be different
if the murder comes under fold of culpable homicide amounting to
25
2025:JHHC:12293-DB
murder and it will be different if with the intent to commit murder as per
the outside purview of exception carved out under Section 300 of the
Indian Penal Code.
59. This Court after taking into consideration the law laid down by Hon’ble
Apex Court more particularly in the case of Andhra Pradesh v.
Rayavarapu Punnayya (supra) and Anbazhagan (Supra) wherein the
difference has been carved out in between Section 299 IPC, Section 300
and Section 304 IPC, would like to appreciate the evidence available on
record in the present case.
60. It is evident from the record that P.W.1-Parshuram Yadav and P.W.2
Babumani Yadav have been declared hostile by the prosecution as they
had altogether denied to have any knowledge about the occurrence.
Further the prosecution witness P.W.9 and P.W.10 is formal in nature as
they had not stated anything on point of occurrence.
61. P.W.3 Ganesh Yadav (son of the deceased) had stated in his examination-
in-chief that about 08 months ago his father was irrigating the wheat field
at night, and altercation with the accused Ramdeo Mandal and Sunil
Mandal took place on the question as to which side will irrigate the field
first and thereafter his father Badri Yadav (deceased) was assaulted on
the head by the appellant and accused Sunil Mandal by means of Lathi.
He has further testified that he was also present there and when he had
raised the alarm then villagers were assembled there and thereafter
accused persons fled away.
62. P.W.3 in his cross examination at para-4 had stated that at the time of
occurrence his uncle namely Baiju Mahto (P.W.7, informant) was on his
duty. Further in para 7 of his cross-examination he had stated that he has
no idea that how his uncle Baiju Mahto (P.W.7, informant) came to know
26
2025:JHHC:12293-DB
about the occurrence and in the same paragraph this witness had testified
that he had informed to his uncle by the telephone.
63. Thus, from testimony of this witness it is evident that he claimed himself
as an eyewitness but in cross-examination he denied the presence of his
uncle i.e. informant by saying that on the alleged day of occurrence his
uncle was on duty. However, this witness had supported the prosecution
case on the same line as stated in the fardbeyan.
64. P.W.4-Ramu Yadav (brother of the deceased) had stated in his
examination-in-chief that alleged occurrence was of about 09 months
ago, he had heard the voice of his brother from wheat field and thereafter
he along with his nephew namely Ganesh Yadav (P.W.3) had rushed to
the wheat field and saw that the accused Ramdeo Mandal (appellant
herein) and Sunil Mandal was assaulting his brother by means of lathi.
P.W.4 in his cross examination at para-5 had stated that when he
had rushed at the place of occurrence then he saw that the Ramdeo
Mandal (appellant) and Sunil Mandal were fleeing away.
65. Further it is evident that P.W.5 Godavari Devi (the mother of the
deceased) is the hearsay witness as she in her cross examination has
stated that she had heard alarms from the field which is situated near to
her house. P.W. 6 Parvati Devi is the wife of the deceased has stated that
she reached the place of occurrence after her son Ganesh (P.W.3) and
brother-in-law Ramu (P.W.4) reached the place of occurrence, i.e., wheat
field and found her deceased husband in injured and unconsciousness
state, therefore this witness is also not an eyewitness of the alleged
occurrence.
66. However, this witness in cross examination at para 5 had stated that her
brother-in-law (P.W.7, informant) had come to house from his duty after
27
2025:JHHC:12293-DB
next day of the occurrence. The aforesaid fact has been corroborated by
the testimony of P.W.3 who had also stated that on the alleged day of the
occurrence his uncle(informant) was on his duty.
67. Thus, from the testimony of P.W.3 and P.W.6, it is well established that
informant is not the eyewitness of the alleged occurrence. The learned
trial Court took in to consideration the testimony of P.W.3 and P.W.6 had
also nullified the claim of P.W.7 as an eyewitness.
68. The learned counsel for the appellant while referring the testimony of
investigating officer (P.W.8) particularly para-14 and 15 of his testimony
has contended that P.W.3, i.e., son of the informant and P.W.4 cannot be
an eyewitness as P.W.8 in his testimony had stated that the witness
namely Ganesh Yadav (P.W.3) had stated to him that he had seen his
father in injured condition and further the witness namely Raju Yadav
(P.W.4) had also stated to him that he had seen the accused /appellant
when they were fleeing away.
69. In the aforesaid context, this Court has gone through the testimony of the
investigating officer P.W.8 wherein at paragraph 14 of the cross-
examination, this witness had stated that the witness Ganesh Yadav
(P.W.3) had stated to him that when he reached at the wheat field, he saw
his father(deceased) was in injured condition and further deceased had
fallen on the ground also. The investigating officer at paragraph 15 of his
testimony had stated that the witness Raju Yadav had stated to him that
he saw the accused while they were running away.
70. In the aforesaid context this Court has gone through the case diary
wherein, P.W.3 and P.W.4 in their statement recorded under section 161
Cr.P.C. has categorically stated that they were present at the alleged place
28
2025:JHHC:12293-DB
of occurrence. Further both the witnesses in their examination-in-chief
had categorically stated that they were present at the place of occurrence.
71. Thus, from the perusal of the testimony of the prosecution witnesses it is
apparent that they were present at the place of occurrence and the learned
trial court has also considered them as an eyewitness.
72. Admittedly, it is the case of homicidal death and the testimonies of the
prosecution witnesses have fully been substantiated by the medical
evidence, i.e., post-mortem report wherein it has been opined that cause
of death due to head injury by impact of hard and blunt substance. Thus,
from aforesaid discussion it is evident that the statement of the
prosecution witnesses that accused had inflicted injury on the head of the
deceased by means of Lathi has fully been fortified by the finding of the
doctor.
73. Further it is evident that the prosecution witnesses particularly P.W.3 and
P.W.4 had specifically stated that due to the issue of irrigation of wheat
field altercation took place and the present appellant along with juvenile
co-accused had assaulted the deceased by Lathi.
74. Thus, from appreciation of the evidences, it is evident that the genesis of
occurrence has been fully corroborated and the manner of occurrence,
place, date and time of occurrence could not be cross-examined to this
degree that the testimony of P.W.3 and P.W.4 could be disbelieved.
75. Further, the witnesses have remained absolute corroborative to each other
and have well proved the time, manner, place and genesis of occurrence
at the hands of accused/appellant and they are free from any bias and
animosity.
76. Thus, in the instant case, from perusal of the testimonies of the witnesses
it is noticed that none of the witnesses including the informant in their
29
2025:JHHC:12293-DB
examination-in chief has uttered a word that there was previous enmity
between the parties rather it has come in the evidence on record that in
course of irrigating the wheat field altercation took place between the
deceased and appellant due to which appellant inflicted blows with Lathi
on the head of the informant’s brother (deceased) due to which he fell
down there and during course of treatment he died.
77. From the aforesaid, it appears that there was no premeditation on the part
of the appellant to cause the alleged act. From the oral evidence available
on record, it is manifested that the deceased as well as appellant were
trying to irrigate the wheat field and further on the issue who will irrigate
the field first, gave rise to commission of present offence.
78. Therefore, from the genesis and manner of offence, it can be well
inferred, without any doubt, that there was no intention on the part of the
appellant to kill the deceased and also there was no intention of the
accused/appellant to cause/inflict that particular injury on the person of
deceased but at the same time it can be inferred that it was within the
knowledge of appellant that act of the appellant was likely to cause an
injury and which would likely to cause death of the deceased.
79. At this stage, it is necessary to reiterate the well settled principle that guilt
of the accused is to be judged on the basis of the facts and circumstances
of the particular case. The injuries found on the person of the accused
assume importance in respect of genesis and manner of occurrence.
80. In the instant case as per the post-mortem report cause of death was head
injury, due to hard and blunt object and its impact. Thus, from the
aforesaid, it is evident that testimony of witnesses has fully been
substantiated by the medical evidence as per the prosecution witnesses’
assault was made upon the deceased by the Lathi.
30
2025:JHHC:12293-DB
81. Thus, considering the entire gamut of the case and on meticulous
examination of the material evidence on record we have no hesitation in
holding that due to altercation on the trivial matter like irrigation of the
field , the accused who was having Lathi (hard and blunt substance) in
his hand, had given blow upon the person of deceased due to which he
sustained head injury and fell down in injured condition and subsequently
died at PMCH, Patna after 5 days from the said assault.
82. Admittedly the act of giving blow upon the head by Lathi, was not come
out of any premeditation or intention and on appreciation of the entire
evidence it has not come out on the record that there was premeditation
between the appellant and juvenile co-accused rather all the witnesses
had consistently testified that the alleged occurrence took place due to
altercation related to irrigation of the wheat field first.
83. In the backdrop of aforesaid discussion and the judicial pronouncement
and the testimonies of prosecution witnesses as also taking into
consideration the facts and circumstances of the instant case, we are of
the view that the assault made by the appellant was not a premeditated
and intentional.
84. There was no intention/premeditation to cause death and caused that
particular bodily injury on the person of deceased by the appellant, but it
was well within the knowledge of the appellant that such a blow by a
Lathi upon the deceased would result into the head injury likely to cause
death of the deceased. Therefore, we are of the considered view that the
present case squarely falls under the 304 part-II of the IPC.
85. The learned counsel for the appellant has contended that the present
appellant has been convicted on the basis of evidence adduced by PW3,
31
2025:JHHC:12293-DB
PW4, PW5 and PW6 who are the interested witnesses, thus, the
conviction of the appellant is bad and fit to be set aside.
86. In the aforesaid context, it is considered view of this Court that merely
because these witnesses, i.e., P.W.3, P.W.4, P.W.5 and P.W.6, happen to
be the son, brother, mother and wife of the deceased, their testimony
cannot be thrown away. In the aforesaid context, it would be relevant to
mention that the Hon’ble Apex Court in the catena of decision has
observed that where a testimony is duly explained and inspires
confidence, the Court is not expected to reject the testimony of an
interested or related witness.
87. The Hon’ble Apex Court in Dalip Singh and Ors vs. State of Punjab AIR
1953 SC 364 in which surprise was expressed over the impression which
prevailed in the minds of the members of the Bar that the relatives were
not the independent witness. Relevant paragraph-26 reads as under:-
“26. A witness is normally to be considered independent unless he or
she springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily, a close relative would be
the last to screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal cause
for enmity, that there is a tendency to drag in an innocent person
against whom a witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure guarantee of
truth. However, we are not attempting any sweeping generalisation.
Each case must be judged on its own facts. Our observations are only
made to combat what is so often put forward in cases before us as a
general rule of prudence. There is no such general rule. Each case must
be limited to and be governed by its own facts.”
88. Again, in Masalti and Ors Vs. State of Uttar Pradesh, AIR 1965 SC 202,
the Hon’ble Apex Court has observed that there is no doubt that when a
criminal Court has to appreciate evidence given by witnesses who are
32
2025:JHHC:12293-DB
partisan or interested, it has to be very careful in weighing such evidence.
Whether or not there are discrepancies in the evidence; whether or not
evidence strikes the Court as genuine whether or not the story disclosed
by the evidence is probable, are all matters which must be taken into
account. But it would be unreasonable to contend that evidence given by
witnesses should be discarded only on the ground that it is evidence of
partisan or interested witnesses. Often enough, where factions prevail in
villages and murders are committed as a result of enmity between such
factions, criminal courts have to deal with such evidence of a partisan
type with great care. The mechanical rejection of such evidence on the
sole ground that it is partisan would invariably lead to failure of justice.
No hard and fast rule can be laid down as to how much evidence should
be appreciated. Judicial approach has to be cautions in dealing with such
evidence; but the plea that such evidence should be rejected because it is
partisan, cannot be accepted as correct.
89. Further, the law is well settled in this regard that what would be the effect
if the conviction is solely based upon the testimony of interested witness,
as has been held by Hon’ble Apex Court in the case of Mallanna and
Ors. vs. State of Karnataka, (2007) 8 SCC 523 wherein it has laid down
that the evidence of interested witnesses cannot be thrown out and the
only requirement for the Court is to consider their evidence with great
care and caution and if such evidence does not satisfy the test of
credibility, then the Court can disbelieve the same. Relevant paragraph
of the aforesaid judgment reads as under:
“22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3
is that no reliance should be placed upon these witnesses as PW 1 and
PW 2 are close relations of the deceased and PW 3 is his bodyguard
inasmuch as, undisputedly, there was animosity between the deceased
and the accused persons, especially when these witnesses cannot be
said to be stamp witnesses as none of them has received any injury. In
33
2025:JHHC:12293-DBour view, merely because witnesses are related or interested or not
injured, their evidence cannot be discarded if the same is otherwise
found to be credible, especially when they have supported the
prosecution case in material particulars. All the three eyewitnesses, PW
1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly
bodyguard of the deceased and PW 1 and PW 3 came with the deceased
to the house of PW 2 which was in Gulbarga the previous night for
appearance of the deceased in sessions trial, pending against him, in
the morning court at Gulbarga and in the morning all of them went to
the court where the present occurrence had taken place in the broad
daylight. So far as PW 2 is concerned, further submission has been
made that his evidence should be discarded also on the ground that he
made the statement before the doctor (PW 6) to the effect that A-4 was
also the assailant, as would appear from Exhibit P-10, an entry made
in the register duly maintained in the hospital, which shows that he had
not seen the occurrence.”
90. Similarly, in Kulesh Mondal vs. State of W.B., (2007) 8 SCC 578, the
Hon’ble Apex Court has laid down at paragraph- 10 which reads as under:
“10. We may also observe that the ground that the [witnesses being
close relatives and consequently being partisan witnesses,] should not
be relied upon, has no substance. This theory was repelled by this Court
as early as in dalip singh v. state of punjab [AIR 1953 SC 364 in which
surprise was expressed over the impression which prevailed in the
minds of the members of the Bar that relatives were not independent
witnesses.”
91. Thus, it is evident from the aforesaid settled proposition of law that
criminal Court has to appreciate the evidences given by witnesses who
are partisan or interested and it would be unreasonable to contend that
evidence given by witnesses should be discarded only on the ground that
it is evidence of partisan or interested witnesses.
Conclusion
92. Accordingly, on the basis of discussion made hereinabove we are of the
view that the judgment impugned convicting the appellant under Section
302 I.P.C. needs to be interfered with by modifying it to that of conviction
of the appellant under Section 304 Part-II of the Indian Penal Code.
34
2025:JHHC:12293-DB
93. Consequently, the judgment passed by the learned trial Court is modified
and appellant is held guilty under Section 304 Part-II of the Indian Penal
Code.
94. On the question of sentence, we have been informed that the appellant
has already suffered incarceration for about 3 years.
95. In the aforesaid circumstances, we are inclined to modify the sentence of
imprisonment to the period already undergone.
96. It appears from record that vide order dated 13.01.2003, the co-ordinate
Bench of this Court has admitted the appellant on bail, therefore the
appellant named above is hereby discharge from liabilities of bail bond.
97. In view of the discussions made hereinabove, judgment of conviction and
order of sentence dated 20.08.2002 passed by learned 2nd Additional
Sessions Judge-Deoghar, in Sessions Trial Case No. 173 of 2000/305 of
2001, is modified to the aforesaid extent.
98. Accordingly, the instant appeal stands dismissed with the aforesaid
modification in the judgment of conviction and order of sentence.
99. Let the Trial Court Records be sent back to the Court concerned
forthwith, along with a copy of this Judgment.
(Sujit Narayan Prasad, J.)
I agree.
(Gautam Kumar Choudhary, J.)
(Gautam Kumar Choudhary, J.)
Jharkhand High Court, Ranchi
Dated: 23/04/2025
Sudhir
A.F.R
35
[ad_2]
Source link