Patna High Court
Dheeraj Jha @ Dheeraj Kumar Jha vs The State Of Bihar on 3 July, 2025
Author: Mohit Kumar Shah
Bench: Mohit Kumar Shah, Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.150 of 2018
Arising Out of PS. Case No.-47 Year-2005 Thana- UDAKISHUNGANJ District- Madhepura
======================================================
1. Budh Narayan Jha S/o Late Anugrah Jha
2. Mritunjay Jha S/o Budh Narayan Jha, Both R/o Village- Singarpur, P.S.-
Uda- Kishunganj, District- Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 85 of 2018
Arising Out of PS. Case No.-47 Year-2005 Thana- UDAKISHUNGANJ District- Madhepura
======================================================
Santosh Jha @ Santosh Kumar Jha Son of Tej Narayan Jha, Resident of
Village- Singarpur, P.S.- Uda Kishunganj, District- Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
======================================================
with
CRIMINAL APPEAL (DB) No. 107 of 2018
Arising Out of PS. Case No.-47 Year-2005 Thana- UDAKISHUNGANJ District- Madhepura
======================================================
Dheeraj Jha @ Dheeraj Kumar Jha S/o Tej Narain Jha, R/o Village- Singarpur,
P.S.- Uda Kishunganj, District- Madhepura.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
2/87
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 150 of 2018)
For the Appellant/s : Mr.Ramakant Sharma, Sr. Adv.
Mr.Amarnath Jha, Adv.
For the Respondent/s : Ms.Shashi Bala Verma, APP
(In CRIMINAL APPEAL (DB) No. 85 of 2018)
For the Appellant/s : Mr.Ramakant Sharma, Sr. Adv.
Mr.Amarnath Jha, Adv.
For the Respondent/s : Mr.Binod Bihari Singh, APP
(In CRIMINAL APPEAL (DB) No. 107 of 2018)
For the Appellant/s : Mr.Ramakant Sharma, Sr. Adv.
Mr.Amarnath Jha, Adv.
For the Respondent/s : Ms.Shashi Bala Verma, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH
and
HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE MOHIT KUMAR SHAH)
Date :03-07-2025
1. The aforesaid appeals preferred under Section 374(2) of
the Code of Criminal Procedure, 1973 (hereinafter referred to
as "the Cr.P.C.") arise out of the same judgment of conviction
and order of sentence dated 29.11.2017 and 07.12.2017
respectively, passed by the learned Court of Additional
Sessions Judge, Fast Track Court No.-II, Madhepura in
Sessions Trial No.123 of 2006 (arising out of Udakishunganj
P.S. Case No.47 of 2005), hence these appeals have been heard
together and are being disposed off by the present common
judgment and order. By the said judgment dated 29.11.2017,
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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the learned Trial Judge has convicted all the appellants of the
aforesaid appeals under Section 302/34 of the Indian Penal
Code (hereinafter referred to as the "I.P.C.") and the appellant
no.2 of the first case, namely Mrityunjay Jha as also the sole
appellant of the second case, namely Santosh Jha @ Santosh
Kumar Jha have further been convicted under Section 323 of
the I.P.C.. By the aforesaid order of sentence dated 07.12.2017,
all the appellants have been sentenced to undergo
Imprisonment for Life under Section 302/34 of the I.P.C. and
as far as appellant no.2 of the first case and sole appellant of
the second case are concerned, they have also been sentenced
to undergo simple imprisonment for six months under Section
323 of the I.P.C.
2. The short facts of the case are that the fardbeyan of
Sheela Devi (P.W.6), wife of the deceased Ugra Narayan Jha
was recorded by the Assistant Sub-Inspector of Police Shri
Umesh Chandra Prasad (P.W.7) on 08.05.2005 at about 02:15
p.m. in the afternoon at Primary Health Centre Udakishunganj.
In her fardbeyan, the informant has stated that on 08.05.2005, at
about 5 a.m. in the morning, her husband Ugra Narayan Jha was
being abused by neighbours, namely (1) Tej Narayan Jha (2)
Budh Narayan Jha (3) Mrityunjay Jha (4) Dheeraj Jha and (5)
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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Santosh Kumar Jha, who were armed with lathi and garasa in
their hand, whereafter her husband had objected to them abusing
him, however in the meantime, Budh Narayan Jha and
Mrityunjay Jha (appellants of the first case) started assaulting
the deceased by lathi, resulting in the deceased sustaining
injuries on his left temporal region and over the entire body,
leading to him falling there. The informant had then gone there
to resolve the dispute but Tej Narayan Jha, armed with lathi, had
assaulted the informant on the wrist of her right hand leading to
her sustaining serious injuries on her hand and thereafter blood
started oozing out as also she sustained lathi injuries on her
body. Thereafter, the son of the informant, Sanjeev Kumar Jha
(P.W.3) had arrived there to resolve the dispute, whereupon
Mrityunjay Jha (appellant no.2 of the first case) armed with
garasa had assaulted him of his head, leading to him sustaining
serious injuries and blood started oozing out therefrom. Santosh
Jha had then assaulted Sunil by lathi resulting in him sustaining
injuries on the thigh of his left leg as also on his left hand. The
informant has further stated that the reason for the occurrence is
that since before dispute is going on in connection with
homestead land and on account of the same, they were assaulted
and injured. She has also stated that hulla (alarm) was raised
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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and then several people from the village had arrived there,
whereupon the persons engaged in assaulting them had fled
away and then with the help of the villagers they were taken for
treatment by a Sumo vehicle to Udakishunganj Hospital where
the treatment was being carried out. The informant has further
stated that the aforesaid statement was read over to her, which
she had heard and understood and finding the same to be
correct, she had put her right thumb impression before the
villagers.
3. On the basis of the aforesaid fardbeyan of the informant,
formal First Information Report (hereinafter referred to as the
"FIR") bearing Udakishunganj P.S. Case No.47 of 2005 was
registered on 08.05.2005 at 02:30 p.m. under Sections
147/148/149/341
/323/324/307 and 504 of the I.P.C. against the
aforesaid appellants and one other accused namely Tej Narayan
Jha, who has died during the pendency of the aforesaid appeals.
Subsequently, vide order dated 20.05.2005, Section 302 of the
I.P.C. was added on account of death of Ugra Narayan Jha. The
Police, after investigation, had found the occurrence to be true
and had filed chargesheet on 02.11.2005 against all the aforesaid
appellants and one another person under Sections
147/148/149/323/325/307/504 and 302 of the I.P.C. The Ld.
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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Trial Court has then taken cognizance under Sections
147/148/149/323/325/307/504 and 302 of the I.P.C. vide order
dated 10.11.2005 and then the case was committed to the Court
of Sessions vide order dated 12.06.2006 and was numbered as
Sessions Trial No.123 of 2006. The learned Trial Court had then
framed charges against the aforesaid appellants and one another
person on 10.08.2006 under Sections 302/34, 325 and 323 of the
I.P.C.
4. The prosecution has examined 9 witnesses. Sanjeev
Kumar Jha (P.W.3) and Sheela Devi (P.W.6) are stated to be
injured eye witnesses, while Ram Narayan Jha (P.W.2) has also
been examined on behalf of the prosecution. Nitu Kumari
(P.W.5) claims to be an eye witness while Nawal Kishore
Thakur (P.W.4) and Krishna Kant Jha (P.W.8) are hearsay
witnesses. Dr. Shilwant Singh (P.W.1) had conducted the post
mortem examination of the dead body of the deceased while Dr.
Rajesh Kishore Sahu (P.W.9) had examined and prepared the
Injury Report of Sheela Devi (P.W.6), Sanjeev Kumar Jha
(P.W.3) as also supplementary Injury Report of Sheela Devi
(P.W.6) and Umesh Chandra Prasad (P.W.7), is the Investigating
Officer.
5. The prosecution, by way of documentary evidence, had
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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proved the following documents, which were marked as exhibits
during the course of the trial:-
Exhibit No. Description
Exhibit No. 1 Post mortem report
Exhibit No. 2 Fardbeyan
Exhibit No. 3 Formal FIR
Exhibit No. 4 Carbon Copy of the Inquest Report
Exhibit No. 5 Injury Report of Sheela Devi
xhibit No. 5/1 Injury Report of Sanjeev Kumar
Exhibit No. 5/2 Supplementary injury Report of Sheela
Devi
Exhibit No. 6 X-ray Plate
6. The list of exhibits marked on behalf of the defence are
enumerated hereinbelow:-
Exhibit No. Description
Exhibit A Forwarding note for examination of injured
Budh Narayan Jha and his injury report.
Exhibit A/1 Forwarding note for examination of injured
Mrityunjay Jha and his injury report.
7. The Ld. Senior counsel for the appellants of the
aforesaid three appeals, Shri Ramakant Sharma has submitted
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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that as far as Ram Narayan Jha (P.W.2), Sanjeev Kumar Jha
(P.W.3), Sheela Devi (P.W.6) and Nawal Kishore Thakur
(P.W.4) are concerned, they have not seen the deceased being
assaulted by the accused persons and as far as Krishna Kant
Jha (P.W.8) is concerned, he is a hearsay witness. Thus, it is
submitted that not only the prosecution witnesses are inimical,
interested and not impartial but have also not seen as to who
had assaulted the deceased, leading to his death, except Nitu
Kumari (P.W.5), who claims to be an eye witness. It is further
submitted that only one temporal injury has been found on the
person of the deceased, however the prosecution witnesses
have exaggerated the number of injuries inflicted upon the
deceased and in fact, Sanjeev Kumar Jha (P.W.3) has stated in
his deposition that he had seen injuries all over the body of the
deceased. The Ld. Senior counsel for the appellants has
referred to the deposition of Dr. Shilwant Singh (P.W.1) to
substantiate the factum of only one injury being found by the
Doctor in the post mortem report whereas the son of the
deceased, in his evidence as P.W.3 has stated that there were
several injuries on the body, thus the evidence of the
prosecution is not trustworthy. It is next submitted by referring
to the post mortem report that though the Doctor has estimated
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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the time of death which has elapsed from the time of
conducting post mortem examination to be 6 hours, however
the occurrence took place about 12 hours back, hence the
mode, manner and time of occurrence stands uncorroborated,
especially in view of the fact that the Doctor had found during
the course of post mortem examination that undigested food
was present in the intestine, although the incident took place
early in the morning at 5 a.m. and the deceased had been badly
assaulted. Thus, it is submitted that the evidence of the
prosecution would show that the manner and time of
occurrence is varying.
8. It is further submitted by the Ld. Senior Counsel that the
appellants had no intention to kill the deceased and the incident
had taken place at the spur of the moment, which would be
clear from the deposition of Umesh Chandra Prasad (P.W.7)
(Investigating Officer), who has stated in his evidence that he
had recorded the statement of independent witness who had
told him that Panches had distributed the property amongst
both the parties, however on 08.05.2005 at 5:00 a.m. in the
morning, while Mrityunjay Jha (appellant no.2 of the first case)
was going towards the field along with his buffalo for grazing
purposes, Ugra Narayan Jha (deceased) had told him to go
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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through his own land leading to quarrel having erupted in
between them and then assault had taken place amongst both
the parties. In fact, it has been submitted that the deposition of
Umesh Chandra Prasad (P.W.7) would show that Budh
Narayan Jha and Mrityunjay Jha (appellants of the first case)
had also sustained injuries and their injury reports have been
brought on record by way of Exhibit-A and A/1. Krishna Kant
Jha (P.W.8), an independent witness has stated in his evidence
that assault had taken place in between Ugra Narayan Jha
(deceased) and Budh Narayan Jha (appellant no.1 of the first
case), leading to the said Ugra Narayan Jha being injured badly
and thereafter, he had died in the hospital. Thus, it is submitted
that it was not a one sided fight but a free for all fight in
between the parties. Therefore, alternatively it is submitted that
even if the evidence led by the prosecution is believed to be
true on its face value, the present case would not fall under
Section 302 of the I.P.C. but under Section 304 part II of the
9. The Ld. Senior counsel for the appellants, on the issue of
applicability of Section 34 has referred to a judgment rendered
by the Hon’ble Apex Court in the case of Constable 907
Surendra Singh and Another Vs. State of Uttarakhand,
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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reported in 2025 SCC Online SC 176, to submit that it is a well
settled principle of law that for convicting the accused with the
aid of Section 34 of the I.P.C., it must be established that all the
accused had pre-planned and shared a common intention to
commit the crime with the accused who has actually committed
the crime and it must also be established that the criminal act
has been done in furtherance of the common intention of all the
accused. Paragraph no.18 of the said judgment being relevant is
being reproduced hereinbelow:-
“18. By now it is a settled principle of law that for
convicting the accused with the aid of Section 34 of the
I.P.C. the prosecution must establish prior meetings of
minds. It must be established that all the accused had
preplanned and shared a common intention to commit
the crime with the accused who has actually committed
the crime. It must be established that the criminal act
has been done in furtherance of the common intention of
all the accused. Reliance in support of the aforesaid
proposition could be placed on the following judgments
of this Court in the cases of:
(i) Ezajhussain Sabdarhussain v. State of Gujarat
[(2019) 14 SCC 339];
(ii) Jasdeep Singh alias Jassu v. State of Punjab
[(2022) 2 SCC 545];
(iii) Gadadhar Chandra v. State of West Bengal
[(2022) 6 SCC 576]; and
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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(iv) Madhusudan v. State of Madhya Pradesh [2024
SCC OnLine SC 4035].”
10. The Ld. Senior counsel for the appellants has next relied
on a judgment rendered by the Hon’ble Apex Court in the case
of Vasant @ Girish Akbarasab Sanavale and Another Vs.
State of Karnataka, reported in 2025 SCC Online SC 337,
paragraphs no.53, 59, 62, 64, 75, 80, 81 and 90 whereof are
reproduced hereinbelow:-
53. On the other hand, under Section 34, IPC, a mere
agreement, although it might be a sufficient proof of the
common intention, would be wholly insufficient to
sustain a conviction with the application of Section 34,
IPC, unless some criminal act is done in furtherance of
the said common intention and the accused himself has
in some way or the other participated in the commission
of the said act.
59. As observed by the Privy Council in the case of
Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 (C),
“It is to be remembered that in crimes as in other things
‘they also serve who only stand and wait”. The following
observations of Mookerjee, J. in the case of Emperor v.
Barendra Kumar Ghosh, AIR 1924 Cal 257 (FB) (D) are
relevant in this connection:
“It is the expectation of aid, in case it is necessary to
the completion of the crime and the belief that his
associate is near and ready to render it which
encourage and embolden the chief perpetrator, and
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
13/87incite him to accomplish the act. By the countenance
and assistance which the accomplice thus renders,
he participates in the commission of the offence.
62. At p. 308 col. (1) of the same case Ghose J. has
quoted the following illuminating passage from Poster’s
Criminal Law:
“Several persons set out together, or in small parties,
upon one common design, be it murder or other
felony, or for any other purpose unlawful in itself,
and each taketh the part assigned to him; some to
commit the act, others to watch at proper distances
and stations to prevent a surprise, or to favour, if
need be, the escape of those who are more
immediately engaged. They are all, provided the act
be committed, in the eye of the law present at it; for
it was made a common cause with them, each man
operated in his station at one and the same instant
towards the same common end, and the part each
man took tended to give countenance,
encouragement and protection to the whole gang,
and to ensure the success of their common
enterprise. To sum up persons executing parts of a
crime separately in furtherance of a common
intention are equally guilty”.
64. The word ‘criminal act’ is used in Section 34, IPC in
the broadest possible sense. It would cover any word,
gesture, deed or conduct of any kind on the part of a
person whether active or passive, which tends to support
the common design.
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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75. It is, therefore, evident that every person charged
with the aid of Section 34, must in some form or the
other participate in the offence in order to make him
liable thereunder. For the above reason, I find myself
unable to endorse the argument of the appellants’
learned counsel that a guilty associate merely present on
the spot cannot be said to participate in the commission
of the offence.
80. The distinction between Section 34, IPC, and Section
149, IPC in this regard has been brought out by Lord
Sumner in the well-known case in AIR 1925 PC 1 (C)
thus:
“There is a difference between object and intention,
for, though their object is common, the intentions of
the several members, may differ and indeed may be
similar only in respect that they are all unlawful,
while the element of participation in action which is
the leading feature of S. 34, is replaced in S. 149 by
membership of the assembly at the time of the
committing of the offence”.
81. In Bashir v. State, AIR 1953 All 668 (F) which is a
Bench decision of the Allahabad High Court, it was
observed by Desai J. that:
“All the persons who are sought to be made liable by
virtue of S. 34 must have done some act which is
included in the ‘criminal act’. One who has not taken
any part in doing the criminal act cannot be made
liable under the section”, (p. 671 col 1).
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90. As held by this Court in Suresh Sakharam Nangare v.
The State of Maharashtra, JT (2012) 9 SC 116, if
common intention is proved but no overt act is attributed
to the individual accused, Section 34 of the code will be
attracted as essentially it involves vicarious liability but
if participation of the accused in the crime is proved and
common intention is absent Section 34 cannot be
invoked. In other words, it requires a pre-arranged plan
and pre supposes prior concert therefore there must be
meeting of mind.”
11. Reliance has also been placed on a judgment rendered
by the Ld. Division Bench of the Bombay High Court, reported
in AIR Online 2024 BOM 1707 (Jayanand Arjun Dhabale
and others vs. State of Maharashtra), paragraphs no.20, 21,
36 and 37 whereof are reproduced hereinbelow:-
“20. The Hon’ble Apex Court in the case of Jasdeep
AIROnline 2022 SC 13(supra), in paras 21 to 24, 26 to
28 has observed as under.
“21. Section 34 of the IPC creates a deeming fiction
by infusing and importing a criminal act constituting
an offence committed by one into others in
pursuance to a common intention. Onus is on the
prosecution to prove the common intention to the
satisfaction of the court. The quality of evidence will
have to be substantial, concrete, definite and clear.
When a part of evidence produced by the prosecution
to bring the accused within the fold of Section 34 of
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
16/87the IPC is disbelieved, the remaining part will have
to be examined with adequate care and caution, as
we are dealing with a case of vicarious liability
fastened on the accused by treating him at par with
the one who actually committed the offence.
22. What is required is the proof of common
intention. Thus, there may be an offence without
common intention, in which case Section 34 of the
IPC does not get attracted.
23. It is a team effort akin to a game of football
involving several positions manned by many, such as
defender, mid- fielder, striker, and keeper. A striker
may hit the target, while a keeper may stop an
attack. The consequence of the match, either a win
or a loss, is borne by all the players, though they
may have their distinct roles. A goal scored or saved
may be the final act, but the result is what matters.
As against the specific individuals who had impacted
more, the result is shared between the players. The
same logic is the foundation of Section 34 of the IPC
which creates shared liability on those who shared
the common intention to commit the crime.
24. The intendment of Section 34 of the IPC is to
remove the difficulties in distinguishing the acts of
individual members of a party, acting in furtherance
of a common intention. There has to be a
simultaneous conscious mind of the persons
participating in the criminal action of bringing about
a particular result. A common intention qua its
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
17/87existence is a question of fact and also requires an
act “in furtherance of the said intention”. One need
not search for a concrete evidence, as it is for the
court to come to a conclusion on a cumulative
assessment. It is only a rule of evidence and thus
does not create any substantive offence.
26. The word “furtherance” indicates the existence of
aid or assistance in producing an effect in future.
Thus, it has to be construed as an advancement or
promotion.
27. There may be cases where all acts, in general,
would not come under the purview of Section 34 of
the IPC, but only those done in furtherance of the
common intention having adequate connectivity.
When we speak of intention, it has to be one of
criminality with adequacy of knowledge of any
existing fact necessary for the proposed offense.
Such an intention is meant to assist, encourage, pro-
mote and facilitate the commission of a crime with
the requisite knowledge as aforesaid.
28. The existence of common intention is obviously
the duty of the prosecution to prove.
However, a court has to analyse and assess the
evidence before implicating a person under Section
34 of the IPC. A mere common intention per se may
not attract Section 34 of the IPC sans an action in
furtherance. There may also be cases where a
person, despite being an active participant in
forming a common intention to commit a crime, may
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
18/87actually withdraw from it later.
(Emphasis supplied)
21. In the Case of Gadadhar Chandra AIROnline 2022
SC 360 (supra), the Supreme Court observed that –
“As consistently held by this court, common intention
contemplated by Section 34 of IPC pre-supposes
prior concert. It requires meeting of minds. It
requires pre-arranged plan before a man can be
vicariously convicted for the criminal act of another.
The criminal act must have been done in furtherance
of the common intention of all the accused. In a
given case, the plan can be formed suddenly. In the
present case, the non-examination of two crucial
eye-witnesses makes the prosecution case about the
existence of a prior concert and pre-arranged plan
extremely doubtful.”
(Emphasis supplied)
In the case of Jai Bhagwan and others AIR 1999 SC
1083 (supra), the Supreme Court observed that –
“10. To apply Section 34, IPC, apart from the fact
that there should be two or more accused, two
factors must be established: (i) common intention
and (ii) participation of the accused in the
commission of an offence. If common intention is
proved but no overt act is attributed to the individual
accused, Section 34 will be attracted as essentially it
involves vicarious liability, but if participation of the
accused in the crime is proved and common intention
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
19/87is absent, Section 34 cannot be invoked. In every
case, it is not possible to have direct evidence of
common intention. It has to be inferred from the facts
and circumstances of each case.”
(Emphasis supplied)
36. Thus, the evidence on record does not show that the
prosecution has proved two conditions as enumerated
above to attract Section 34 of the IPC against accused
Nos.2 to 4. Therefore, we are of the view that the
findings recorded by the learned Judge are contrary to
the evidence on record. The learned Judge has not
considered the ingredients of Section 34 of the IPC or
the law laid down by the Hon’ble Apex Court in various
decisions and has recorded the findings based on
conjectures and surmises. Which are not sustainable in
the eyes of the law and same are liable to be set aside to
the extent of applicability of Section 34 of the IPC
against accused Nos.2 to 4, and to that extent, the
findings are required to be quashed and set aside.
37.As a result, we are of the opinion that the prosecution
has proved the charge against accused No.1-Jayanand
under Section 302 of the IPC. Hence, we maintain the
findings of the trial Court to the extent of holding
accused No.1-Jayanand guilty of the offence punishable
under Section 302 of the IPC. However, the prosecution
has failed to prove the common intention as
contemplated under Section 34 of the IPC, i.e.
presupposes prior concert, meeting of minds or
prearranged plan before a man can be vicariously
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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convicted for the criminal act of another. Hence, the
prosecution has failed to prove the ingredients of Section
34 of the IPC against accused Nos.2 to 4, who have been
implicated only with the aid of Section 34 of the IPC.
Hence, we answer the point partly in the affirmative to
the extent of accused No.1 and negative to the extent of
accused No. 2 to 4. We also maintain the conviction of
the appellant Nos. 1 to 4 under Section 452 of the IPC,
which they have already undergone. Therefore, the
appeal must succeed partly to that extent.”
12. Lastly, the learned senior counsel for the appellants has
placed reliance on a judgment rendered by the Hon’ble Apex
Court in the case of Mala Singh and others vs. State of
Haryana, reported in AIR 2019 SC 1026, paragraphs no. 57,
62 and 63 whereof are reproduced hereinbelow:-
“57. In other words, in our view, the prosecution failed
to adduce any evidence against the three appellants to
prove their common intention to murder Mahendro Bai.
Even the High Court while altering the charge from
Section 149 IPC to Section 34 IPC did not refer to any
evidence nor gave any reasons as to on what basis these
three appellants could still be proceeded with under
Section 34 IPC notwithstanding the acquittal of
remaining eight co-accused.
62. The prosecution, in our view, never came with a case
that all the 11 accused persons shared a common
intention under Section 34 IPC to eliminate Mahendro
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
21/87Bai and nor came with a case even at the appellate stage
that only 3 appellants had shared common intention
independent of 8 co-accused to eliminate Mahendro Bai.
63. When prosecution did not set up such case at any
stage of the proceedings against the appellants nor
adduced any evidence against the appellants that they
(three) prior to date of the incident had at any point of
time shared the “common intention” and in furtherance
of sharing such common intention came on the spot to
eliminate Mahendro Bai and lastly, the High Court
having failed to give any reasons in support of altered
conviction except saying in one line that conviction is
upheld under Section 302/34 IPC in place of Section
302/149 IPC, the invoking of Section 34 IPC at the
appellate stage by the High Court, in our view, cannot
be upheld.”
13. The learned APP for the State, Shri Binod Bihar Singh,
assisted by Ms. Shashi Bala Verma, has submitted that Sanjeev
Kumar Jha (P.W.3) and Sheela Devi (P.W.6) are injured eye
witnesses and in fact Sheela Devi (P.W.6) has been grievously
injured, as is apparent from her Injury Report and they have
fully supported the prosecution’s version. It is also submitted
that neither the evidence led by the prosecution contains any
contradiction nor is inconsistent, hence the same is required to
be taken into consideration for the purposes of proving the
guilt of the appellants. It is also submitted that the appellants
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were definitely having the intention to assault the members of
the prosecution party inasmuch as they were carrying lathi and
garasa and even motive is prevailing in the present case since
land dispute pertaining to homestead land is existing in
between the parties since long. It is stated that Sanjeev Kumar
Jha (P.W.3), Nitu Kumari (P.W.5) and Sheela Devi (P.W.6) are
eye witness to the alleged occurrence and they have supported
the case of the prosecution, hence it is submitted that the
conviction of the appellants should be upheld, especially on
account of the deceased having sustained injuries on his vital
parts. It is contended that the manner of occurrence stands
corroborated from the Inquest Report as also by the medical
evidence i.e. the post mortem report. It is next contended that
Nawal Kishore Thakur (P.W.4), Nitu Kumari (P.W.5) and
Umesh Chandra Prasad (P.W.7) have all deposed regarding
existence of land dispute and on account of the same the
appellants have given effect to the aforesaid occurrence in
question, leading to death of the husband of the informant as
also resulting in Sanjeev Kumar Jha (P.W.3) and Sheela Devi
(P.W.6) sustaining injuries. In nutshell, it is submitted that the
evidence led by the prosecution definitely proves the guilt of
the appellants, hence no interference is required with the
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judgment of conviction and order of sentence passed by the Ld.
Trial Court.
14. Besides hearing the learned counsel for the parties, we
have minutely perused both the evidence, i.e. oral and
documentary. Before proceeding further, it is necessary to
cursorily discuss the evidence.
15. Ram Narayan Jha (P.W.2) has stated in his evidence that
the occurrence dates back to 08.05.2005 at about 5 a.m. in the
morning when he was sleeping in his house and after hearing
hulla (alarm) he woke up and had gone to the place of
occurrence, where he saw that Ugra Narayan Jha had become
injured and had fallen down on the ground as also the hand of
his wife had been broken and blood was oozing out. He has
also stated that the son of Ugra Narayan Jha had received
injuries on his forehead and blood was oozing out, however
when he reached at the place of occurrence, the assault was
over and he had seen the accused Budh Narayan Jha and
Mrityunjay Jha running away from the place of occurrence
towards the eastern side but he had not seen any weapon in
their hand and both of them were running empty handed. He
has also stated that he had not seen the actual assault. P.W.2
had recognized the accused persons standing in the dock. P.W.2
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has next stated that the assault had taken place on account of
homestead land. In cross examination, P.W.2 has stated that
there was no cattle feeding pot or peg at the place where the
injured had fallen.
16. Sanjeev Kumar Jha (P.W.3) is the son of the informant
and he has stated in his deposition that the occurrence dates
back to 08.05.2005 at about 5 a.m. in the morning when he was
sleeping in his house and had woken up upon hearing sound of
hulla (alarm), whereafter he had gone to the place of
occurrence and had seen his father lying in an injured and
unconscious condition. The injury was on his forehead and
when he had gone to save him, accused Mrityunjay Jha had
assaulted him by the back portion of garasa. Thereafter, Tej
Narayan Jha and Dheeraj Jha had assaulted the mother of P.W.3
by lathi. He has next stated that while his sister Nitu Kumari
(P.W.5) had tried to intervene she was also injured, however he
did not see as to who had assaulted her. P.W.3 has stated that he
saw that his father had fallen down but still Tej Narayan Jha,
Dheeraj Jha and Santosh Jha were assaulting him by lathi,
whereafter he had gone to intervene, however the said persons
had also assaulted him. P.W.3 had recognized the accused
present in the dock as also claimed to recognize the other
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accused persons. P.W.3 has stated that Tej Narayan Jha is
cousin brother of his father. In cross-examination, P.W.3 has
stated that during the course of treatment, the clothes of his
father were opened, whereupon he saw that he had injuries all
over the body. He has also stated that though his father was in
an unconscious condition but still the accused persons were
assaulting him by lathi. P.W.3 had seen injury on the right side
of the forehead of his father and the hand of his mother had
broken as also he had been inflicted injuries at 3-4 places. The
sister of P.W.3 had also received injury at one place on her leg
and P.W.3 had received injuries on his forehead and left hand.
P.W.3 has also stated that in the night of occurrence, he was at
his home along with his father and his father had eaten
chappati and slept at 9-9:30 p.m., whereafter he woke up in the
morning after hearing sound of hulla (alarm). His father used
to feed the cattle and at the time of occurrence, cattle was tied
at the door of his house and the cattle feeding pot was also
there. P.W.3 has denied the suggestion that because of land
dispute, the accused persons have been falsely implicated.
17. Nawal Kishore Thakur (P.W.4) has stated in his
deposition that on the day of occurrence, it was Sunday and the
occurrence dates back to 14 months at about 5:00 a.m. in the
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morning when he was at Singarpur at the house of his brother-
in-law, namely Ugra Narayan Jha (deceased) and at that time
he had gone for easing himself, when he heard hulla (alarm)
and then he came back running and saw that his brother-in-law
had fallen down, the hand of his sister Sheela Devi had been
broken as also the head of his nephew Dilkush had been
injured badly and his niece Nitu Kumari had also received
lathi injuries. He had also seen the accused persons, namely
Budh Narayan Jha, Mrityunjay Jha, Tej Narayan Jha, Dheeraj
Jha and the younger son of Tej Narayan Jha armed with lathi.
Thereafter, the injured persons were taken to the hospital at
Kishunganj, however his brother-in-law Ugra Narayan Jha was
referred to Madhepura, whereafter they had gone to Madhepura
Hospital where during the course of treatment he died. He had
recognized the accused persons present in the dock as also
claimed to recognize the other accused persons. In cross
examination, P.W.4 has stated that the place of occurrence is at
a distance of 7 kms from his village, he is engaged in
agricultural work in his village and often goes to the in-laws
place of his sister. He has next stated that prior to the date of
occurrence, neither any message had come to him nor there
was any festival nor there was any reason to go to Singarpur.
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He has also stated that his statement was recorded by the police
on the third day of the occurrence at Singarpur at about 5 a.m.
in the morning at the house of his brother-in-law.
18. P.W.4 He has next stated that dispute was existing in
between the parties on account of homestead land. The
disputed land was measured three times and on all the three
occasions panchnama was prepared, which bears the signature
of the deceased and his brothers. The panches were from
Singarpur. The deceased was the eldest amongst his brothers.
He has further stated that one month prior to the date of
occurrence as also two months prior to the date of occurrence,
Panchayat was held and he was present in all the three
Panchayatis. The Panchayati was accepted by Ugra Narayan
Jha and all his brothers. A map of the land in question was
prepared by the Amin, which was signed by all the brothers,
whereafter all the parties were handed over a copy each. Budh
Narayan Jha did not accept the first Panchayati and he also did
not accept the second and third one. P.W.4 has next stated that
the brother of the deceased had settled on the disputed land as
also is at present staying there and there are seven houses on
the disputed land out of which two are pucca houses and five
are hay-huts and the pucca house of his brother-in-law is
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situated towards the west from where the house of Budh
Narayan Jha is situated at a distance of 15-20 rope length (as
per local measurement 1 rope length= 30 ft) and in between
there is one small way as also there is one open field in
between, where cattle feeding pot, peg and well are situated.
19. P.W.4 has also stated that his brother-in-law had fallen
towards the western side of the pucca house of Budh Narayan
Jha at a distance of 3-4 lagga (in local measurement 1 lagga= 6
ft). He has next stated that the deceased had fallen towards the
southern side of the well at a distance of 3 rope length and no
blood had fallen at the place where he had fallen, however mud
was present on his body. At the time of occurrence, Budh
Narayan Jha had two oxes and two buffaloes. He has stated
that the house of Budh Narayan Jha is on the eastern side of the
place of occurrence and towards the northern side of the place
of occurrence, three hay huts are situated while on the eastern
side, four hay huts are situated and the occurrence had taken
place in between the same.
20. P.W.4 has next stated that all around, the doors of the
houses of people are situated. He has stated that Babusaheb,
Ram Narayan (P.W.2), Bachan Jha and other villagers had
arrived at the place of occurrence and he was also present
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there. P.W.4 has denied to have told the police that when he
was at home, he got information that Ugra Narayan Jha, his
sister Sheela Devi and Raju have been assaulted, whereafter he
had reached Singarpur where he got information from his sister
that on account of the homestead land, the said occurrence had
taken place. The statement of P.W.4 was recorded when the
police had arrived at the place of occurrence and at that time
many villagers had arrived there, whereafter he had taken the
police inside the courtyard and made them meet his sister,
whereupon the police had started investigation.
21. Nitu Kumari (P.W.5) has stated in her deposition that the
occurrence dates back to 15-16 months and the day was
Sunday, at about 5:00 a.m. in the morning, when she was
sleeping in her house and upon hearing the sound of hulla
(alarm) being raised by her mother she woke up and ran and
went to the place of occurrence, whereupon she saw that Budh
Narayan and Mrityunjay Jha were assaulting his father, namely
Ugra Narayan Jha by lathi and when her mother had gone to
save him, Tej Narayan Jha had assaulted her by lathi as also
when his brother Sanjeev Kumar Jha had gone to save him,
Mrityunjay Jha had assaulted him by garasa on his head. She
has also stated that when her grandmother had gone to save
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him, Budh Narayan Jha had also assaulted her and when she
had gone to save them, she was also assaulted by the accused
persons. Thereafter, the neighbours had arrived there leading to
the accused persons fleeing away, whereafter the injured
persons were taken to Kishunganj for treatment but they were
referred to Madhepura and at Madhepura father of Nitu Kumari
(P.W.5) had died. Nitu Kumari (P.W.5) had recognized the
accused persons standing in the dock and had claimed to
recognize the absent accused persons. In cross examination
P.W.5 has stated that Ugra Narayan Jha is her own Baba and
her grandfather are Turant Lal Jha and Anugrah Lal Jha, who
are brothers. Turant Lal Jha has got one son, namely Tej
Narayan Jha, who in turn also has a son, namely Dheeraj Jha,
who are accused in the present case. She has also stated that
towards the northern side of her courtyard, the courtyard of Tej
Narayan Jha is situated, towards the southern side courtyard of
Bachan Jha is situated, towards the eastern side courtyard of
Budh Nath Jha is situated and on the west residential area of
fishermen is situated.
22. P.W.5 has next stated that her mother had raised hulla
(alarm) from the door of her house as also her father had raised
alarm and upon her father raising alarm, her mother had gone
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there, whereafter her mother had raised hulla (alarm),
whereupon she and her brother had also gone to the place of
occurrence and then she saw that her father had fallen down
and injuries were present on his forehead as also on his entire
body apart from little bit blood flowing from his ear. She has
next stated that by the time people came, all the accused
persons had fled away. She has also stated that she did not see
any injury on the person of Mrityunjay Jha and Budh Narayan
Jha. She has admitted that land dispute was going on since 3-4
years and the accused persons were forcibly demanding share
in the land purchased by her father in her mother’s name. Prior
to the occurrence Panchayati was held 3-4 times and then her
father had accepted the decision but the accused persons had
not. She has next stated that her mother had sustained injuries
on right hand and she had fallen at the place of occurrence as
also her father had fallen nearby. She has also stated that at the
time of occurrence all were sleeping and the accused persons
must have conspired for assaulting the members of the
prosecution party. P.W.5 has next stated that mother of Budh
Narayan Jha is her grandmother. She has also stated that there
was no dispute with regard to the way. P.W.5 has further stated
that at the place where her father and mother had fallen, there
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was no cattle feeding pot made of cement or any peg.
23. Sheela Devi (P.W.6) has stated in her deposition that the
occurrence dates back to 08.05.2005 at 5:00 a.m. in the
morning when she was in her courtyard and then she heard
hulla (alarm) from the side of the door, whereafter she went
running towards the door and saw that her husband had fallen
down and Budh Narayan Jha and Mrityunjay Jha armed with
lathi were standing there. She has next stated that Tej Narayan
Jha, Dheeraj Jha and Santosh Jha were also engaging in assault
and when she went to save her husband, the accused persons
had also assaulted her. She has next stated that she was
assaulted on right hand by Tej Narayan Jha, whereafter her son
Sanjeev Jha and daughter Nitu Kumari had arrived there,
whereupon Sanjeev was assaulted by Mrityunjay Jha by
garasa on the head and her daughter was slapped. She has also
stated that her husband had become unconscious on account of
being assaulted and accused persons had fled away thinking
that he has died. Upon hearing hulla (alarm), neighbours had
arrived there and then her husband was taken to Kishunganj
where she and her son were also treated, however her husband
was referred to Madhepura where he died. At Kishunganj, the
Officer In-charge had come at the hospital and recorded her
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statement which was read over to her and then she had made
her thumb impression over the same since her right hand had
been broken. She had recognized the accused persons standing
in the dock and claimed to recognize the other accused, who
are not present there.
24. In cross examination, P.W.6 has stated that from
Singarpur, Kishunganj is at a distance of 2 ½ kos (1 kos =2
mile). She has also stated that her injured husband was taken
away in a Sumo vehicle which belongs to one Pramod Singh.
She has next stated that when she had seen her husband she
had talked to him and at Kishunganj, she had talked with the
police and at that time her husband was not able to talk. She
has stated that she and her son had shown the injury of her
husband to the Doctor and they had stayed at Singarpur, after
the incident for half an hour. She has also stated that they had
brought her husband in an injured condition, from the place of
occurrence to the house and kept him on a cot over which quilt
and bedsheet was present and during the said half an hour she
had made her husband drink water. P.W.6 has further stated that
it took 15 minutes to reach Kishangaj Hospital by a Sumo
vehicle, where they had stayed for 10 minutes and then she had
got admitted in the hospital at Kishunganj itself. She has also
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stated that when she had talked with her husband, he had told
her that all the five accused persons have assaulted him and
this fact was also disclosed before the police. The learned
counsel for the accused persons had declined to cross examine
this witness any further on the pretext that the said witness was
present all throughout in the Court at the time of recording of
the evidence of other witnesses in the past, hence the said
witness was discharged by the Learned Trial Court.
25. P.W.7 Umesh Chandra Prasad is the Investigating Officer
of the present case, who has stated in his deposition that he was
posted as Assistant Inspector of Police at Udakishunganj Police
Station on 08.05.2005 and he was handed over the
investigation of Udakishunganj P.S. Case No.47 of 2005 on
that day. He has identified the farbeyan which is in his writing
and bears his signature and the same has been marked as
Exhibit-2. P.W.7 has stated that the formal F.I.R. is also in his
writing and the same bears the signature of Officer In-charge,
which has been marked as Exhibit-3. P.W.7 has also stated that
he had recorded the re-statement of the informant and
conducted inspection of the place of occurrence. The place of
occurrence of the said case is at village-Singarpur Tola, where
the deceased is stated to have been assaulted and injured by the
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accused persons. He has next stated that he had recorded the
statement of witnesses and during the course of investigation,
he came to know that Ugra Narayan Jha has died during the
course of treatment at Madhepura Sadar Hospital, whereafter
he had received the Inquest Report from the Madhepura Police
Station as also had received the injury reports of the other
injured persons.
26. P.W.7 has next stated that on the basis of the statement of
the witnesses, post mortem report and inquest report, he had
found the occurrence to be true and had filed the chargesheet.
He has identified the carbon copy of the Inquest Report which
was received from Madhepura Police Station, which is in the
writing of Assistant Sub-Inspector of Police Shiv Nandan
Singh and bears his signature, which has been marked as
Exhibit-4 with objection. In cross examination, P.W.7 has
stated that he had recorded the statement of Krishna Kant Jha
(P.W. 8), that of the panches as also that of Ram Narayan Jha
(P.W. 2), Brajesh Jha, Chuna Jha and Chandra Kishore Jha. He
has also stated that both the parties used to participate in the
Panchayati, the panches had made signature on the Panchnama
but they did not use to listen to the Panches and instead used to
get ready to beat each other. P.W. 7 had also recorded the
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statement of independent witnesses, namely Chaturi Mandal,
Chandeshwar Jha and Udakant Jha, who had told him that the
Panches had divided the property in question as also ‘way’ was
left for both the parties to go through the same, whereafter both
the brothers had made their signature over the panchnama.
They had also disclosed that on 08.05.2005 at 5:00 a.m. in the
morning, son of Budh Narayan Jha, namely Mrityunjay Jha
was going towards the field along with his buffalo for grazing
purposes, when Ugra Narayan Jha (deceased) told him to go
through his own land and the same led to quarrel having
erupted and then assault had taken place in between the parties.
27. P.W. 7 has further stated that in paragraph no.100-101 of
the case diary, he has stated about receiving injury report from
Udakishunganj on 30.10.2005 of the injured Budh Narayan Jha
and Mrityunjay Jha, which he has identified. P.W.7 has stated
that the requisition for obtaining the injury reports was sent by
the In-charge of Budhma O.P., Shyam Bihari Ram, which is in
his handwriting and he had sent Budh Narayan Jha in an
injured condition for treatment and on the said basis, the doctor
had examined him and prepared his injury report. Similarly, In-
charge Budhma O.P. had found Mrityunjay Jha to be injured
and had also sent him for examination. The treatment of both,
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father and son was done at Primary Health Centre,
Udakishunganj. P.W.7 has stated that Budhma O.P. is camp of
Kishunganj Police Station. P.W.7 has next stated that he had
received the injury reports of the aforesaid two persons from
the Government hospital, which has been marked as Exhibit-A
and A/1. P.W.7 has also described the place of occurrence and
has further stated that occurrence is stated to have taken place
on account of dispute pertaining to homestead land and not on
account of dispute of way. He has also stated that the house of
the accused persons and the informant are situated side by side
and on the eastern side of the place of occurrence, the pucca
house of Budh Narayan Jha is situated. P.W.7 had received the
documents of partition in the form of panchnama, however he
had not made any investigation with regard to the connected
land. He has also stated that since the villagers had not trusted
the said panchnama, how he could have trusted the same. P.W.7
has next stated that he had not found any criminal history of
the accused persons and he had not recorded the statement of
either Budh Narayan Jha or Mrityunjay Jha, after they had
surrendered before the Court. He has denied the suggestion that
he had not investigated the case properly.
28. P.W.8, Krishna Kant Jha has stated in his evidence that
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the occurrence dates back to 6-7 years and when he heard hulla
(alarm) he came outside his house and saw that Tej Narayan
Jha, Dheeraj Jha and Santosh were standing at the gate as also
he had seen Budh Narayan Jha and Mrityunjay Jha. He has
stated that at that time, assault had already taken place and the
same had taken place in between Ugra Narayan Jha and Budh
Narayan Jha, leading to Ugra Narayan Jha having been injured
badly. Ugra Narayan Jha had died while being taken to the
Hospital. The wife and children of Ugra Narayan Jha had also
been assaulted. He had recognized the accused persons
standing in the dock. In his cross examination, P.W. 8 has
stated that the courtyard of Budh Narayan Jha and Ugra
Narayan Jha (deceased) is at one place where Ugra Narayan
Jha had fallen and was lying there, however there was no cattle
feeding pot situated there. He has next stated that the family
members of Budh Narayan Jha were not present there and he
can’t say as to how many people arrived there as soon as he
reached there.
29. P.W. 9 Dr. Rajesh Kishore Sahu has stated in his
evidence that on 08.05.2005, he was posted as Medical Officer,
Primary Health Centre, Udakishunganj and on that day he had
examined Smt. Sheela Devi and had found the following
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injuries on her person:-
(i) Lacerated wound between angle of thumb and right
palm
(ii) Swelling over right wrist ½” X ¼”
X-ray advised – Opinion kept reserved at that time
Later on x-ray plate produced that shows fracture of
wrist bone, so nature of injury no. (ii) is grievous and
that of injury no.(i) is simple.
P.W. 9 has stated that the said injury report is in his
pen and signature and the same has been marked as Exhibit-5.
P.W. 9 has stated that the injured was referred for further
treatment to Sadar Hospital, Madhepura. P.W. 9 had identified
the x-ray plate of the wrist of Smt. Sheela Devi, done at Shiv
Shakti X-ray, which shows fracture of radius of right wrist and
the same has been marked as Exhibit -6.
30. P.W. 9 has further stated that on the very same day, he
had also examined Sanjeev Kumar, son of Ugra Narayan Jha
and had found the following injuries:-
(i) lacerated wound on left side of scalp 2″ x ½”
(ii) swelling over left nostril.
Nature of injury – simple
P.W. 9 has stated that the said injury report is in his pen
and signature and the same has been marked as Exhibit-
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5/1.
After getting x-ray of Smt. Sheela Devi, P.W. 9 has
issued a supplementary injury report on 29.05.2005 from
which the nature of injury no.(ii) has been found to be
grievous, which has been stated by P.W.9 to be in his pen and
signature and the same has been marked as Exhibit -5/2. In
cross examination, P.W.9 has stated that both the injured
persons were not known to him prior to their examination. Shiv
Shakti X-ray is a private entity. He has also stated that the x-
ray plate does not bear the name of the injured nor any mark
but one date is mentioned which shows that the same was done
on 08.05.2005 and only one x-ray report was shown by the
injured, on the basis of which he had opined that injury no.(ii)
of Sheela Devi is grievous. P.W. 9 has also stated in his cross
examination that while injury no.(i) of Sheela Devi may have
occurred by falling on hard substance, injury no.(ii) may also
have occurred by falling on a hard and blunt substance and the
injury of Sanjeev is simple which may have occurred on
account of falling on a hard substance.
31. P.W.1 Dr. Shilwant Singh is the doctor who had
conducted the post mortem of the dead body of the deceased,
namely Ugra Narayan Jha at 05:30 p.m. on 08.05.2005 while
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he was posted as Medical Officer at Sadar Hospital,
Madhepura and he had recorded the following findings :-
Rigor mortis present in all four limbs. The following
injuries were found:-
(i) An abrasion on the right side of forehead measuring
2.5 cm x 0.2 cm
(ii) Swelling on left temporoparietal region measuring
6.6 cm x 4.3 cm and on dissection of the scalp, left
parietal bone was found fractured and on opening the
scalp- cranium was full of blood and the parietal lobe
(left side) was lacerated.
(iii) Bleeding from the left ear-tympanic membrane was
ruptured.
P.W. 1 has stated that the cause of death is shock and
brain injury due to above mentioned injuries and the weapon
used is hard and blunt substance. He has stated that the time
elapsed since death is within six hours. P.W.1 has stated that
the post mortem report is in his pen and signature and the same
has been marked as Exhibit-1. In cross examination, P.W. 1 has
stated that he has not mentioned about noticing any bandage on
the dead body. He has also stated that undigested food material
was found in the stomach and after six hours of taking meal,
stomach becomes empty. He has next stated that injury no.(ii)
is not possible ordinarily by fall.
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32. After closing the prosecution evidence, the Ld. Trial
Court recorded the statement of the aforesaid appellants on
11.06.2013 under Section 313 of the Cr.P.C. for enabling them
to personally explain the circumstances appearing in the
evidence against them, however them claimed to be innocent.
33. The learned Trial Court, upon appreciation, analyzing
and scrutiny of the evidence adduced at the trial has found the
aforesaid appellants guilty of the offence and has sentenced
them to imprisonment and fine as stated above, by the
impugned judgment and order.
34. We have perused the impugned judgment of the Ld.
Trial Court, the entire materials on record and have given
thoughtful consideration to the rival submissions made by the
Ld. Senior Counsel for the appellants and the Ld. APP for the
State. The first and foremost aspect, which is required to be
adjudged is as to whether any ocular evidence is available on
record to prove the guilt of the aforesaid appellants for the
offences with which they have been charged. The prosecution
has led the evidence of Ram Narayan Jha (P.W.2), Sanjeev
Kumar Jha (P.W.3), Nawal Kishore Thakur (P.W.4), Nitu
Kumari (P.W.5), Sheela Devi (P.W.6) and Krishna Kant Jha
(P.W.8) to prove the guilt of the accused persons apart from
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having led the evidence of Umesh Chandra Prasad (P.W.7), the
Investigating Officer of the case in question, Dr. Shilwant
Singh (P.W.1), who had conducted the post mortem
examination of the dead body of the deceased and Dr. Rajesh
Kishore Sahu (P.W.9), who had prepared the injury report of
Sanjeev Kumar Jha (P.W.3) and Sheela Devi (P.W.6) and based
upon the same, the Ld. Trial Judge has convicted the appellants
whereas on the contrary, the appellants have primarily taken
the defence that except Nitu Kumari (P.W.5), there is no eye
witness to the alleged occurrence, the prosecution witnesses
have exaggerated injuries, there are inconsistency and
contradictions in the evidence of the witnesses, hence the
prosecution witnesses are not trustworthy, both the manner and
time of occurrence has not stood corroborated/proved and
Section 34 is not attracted in the present case. Alternatively, the
Ld. Senior Counsel for the appellants has submitted that the
appellants did not have any intention to kill the deceased and
the incident happened at the spur of the moment, which is clear
from the evidence of Umesh Chandra Prasad (P.W.7), thus at
best the present case would fall under Section 304 Part II of the
35. We find upon having examined the evidence led by the
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prosecution that the place of occurrence as well as the date and
time of occurrence have stood proved, which is apparent from
the deposition of Ram Narayan Jha (P.W.2), Sanjeev Kumar
Jha (P.W.3), Nawal Kishore Thakur (P.W.4), Nitu Kumari
(P.W.5), Sheela Devi (P.W.6), Krishna Kant Jha (P.W.8) and
Umesh Chandra Prasad (P.W.7), who is the Investigating
Officer of the present case and had not only inspected the place
of occurrence but has also in detail described the same in his
deposition. As far as the mode and manner of occurrence is
concerned, Sheela Devi (P.W.6), who is the informant of the
present case has stated that the incident dates back to
08.05.2005 at about 5 a.m. while she was in her courtyard and
then she heard hulla (alarm) being raised by her husband,
whereupon she went running to the door and saw that her
husband (deceased) had fallen down on the ground and the
appellants of the first case were standing there, armed with
lathi as also the appellants of the second and third case,
including one Tej Narayan Jha were also engaging in assaulting
the deceased. She had then gone to save her husband but she
was also assaulted, especially by Tej Narayan Jha on her right
hand, whereafter her son Sanjeev Kumar Jha (P.W.3) and Nitu
Kumari (P.W.5) had arrived there leading to her son being
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assaulted by Mrityunjay Jha (appellant no.2 of the first case)
by garasa on his head and her daughter was also slapped.
Sheela Devi (P.W.6) has also stated that she had talked with her
husband who had told her that all the five accused persons
including the appellants have assaulted him and the said fact
was also disclosed by her before the police. Nawal Kishore
Thakur (P.W.4) has stated in his evidence that he was at
Singarpur at the house of his brother-in-law on the day of the
incident and while he had gone to ease himself in the morning
at around 5:00 a.m., he heard hulla (alarm), whereafter he
came running and saw that his brother-in-law had fallen down,
her sister’s hand had been broken, the head of nephew Dilkush
had been badly injured and Nitu Kumari (P.W.5) had also
received lathi injuries. He has further stated in his evidence
that he saw all the appellants standing there armed with lathi
and his statement was also recorded by the police.
36. Now coming to the evidence of Sanjeev Kumar Jha
(P.W.3), we find that he has stated therein that on the day and
time of occurrence he was sleeping, however he got up upon
hearing the sound of hulla (alarm), whereafter he went to the
place of occurrence and saw that his father was lying in an
injured and an unconscious condition, whereafter he had gone
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to save him but the appellant no.2 of the first case had
assaulted him by the back portion of garasa. Thereafter, he saw
that though his father had fallen down on the ground but still
Tej Narayan Jha and the appellants of the second and third case
were assaulting him by lathi. Tej Narayan Jha and the appellant
of the third case had assaulted mother of P.W.3 by lathi and his
sister Nitu Kumari (P.W.5) was also assaulted by the accused
persons. As far as Nitu Kumari (P.W.5) is concerned, she has
stated that on the aforesaid day and time of occurrence, while
she was sleeping she heard hulla (alarm) being raised by her
mother, whereafter she went to the place of occurrence and saw
the appellants of the first case assaulting her father by lathi.
Thereafter, Sanjeev Kr. Jha (P.W.3) had gone to save his father,
however the appellant no.2 of the first case had assaulted him
by garasa and then appellant no.1 of the first case had
assaulted the grandmother of Nitu Kumari (P.W.5) as also
P.W.5 was assaulted by the accused persons, however when the
neighbours arrived, the accused had fled away.
37. We have also gone through the evidence of Ram
Narayan Jha (P.W.2), who had though reached at the place of
occurrence after the assault had taken place but he has stated
that the deceased had been badly injured and had fallen on the
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ground, the hand of the wife of deceased had broken, son of the
deceased had received injuries on forehead and both the wife
and son were bleeding. He has also stated that he had seen the
appellants of the first case running away. Now, coming to
Krishna Kant Jha (P.W.8), we find that he is an independent
witness and he has stated in his evidence that after hulla
(alarm) was raised, he had come outside the house and had
seen the appellants of the first case, the appellant of the second
case and one Tej Narayan Jha standing at the gate. Thus, we
find that the aforesaid witnesses produced by the prosecution
have not only proved the mode and manner of occurrence but
also the date, time and place of occurrence, as has been
narrated by the informant in his fardbeyan.
38. As far as the injuries inflicted upon the deceased Ugra
Narayan Jha as also upon Sanjeev Kumar Jha (P.W.3) and Nitu
Kumari (P.W.5) are concerned, Ram Narayan Jha (P.W.2) has
stated that the deceased was badly injured and had fallen on the
ground, the hand of the wife of the deceased had been broken
and blood was oozing out as also the son of the informant had
received injuries on his forehead from where blood was oozing
out. In this regard Sanjeev Kumar Jha (P.W.3) has stated in his
evidence that he had seen his father lying in an injured and
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unconscious condition with injuries on his forehead as also all
over his body. He has also stated that he had sustained injuries
on his forehead and left hand while his sister had been inflicted
injures upon her leg and her mother had also sustained injuries
inflicted by lathi blows. Nawal Kishore Thakur (P.W.4) has
also stated in his evidence that he had seen his brother-in-law
(deceased) having fallen down on the ground badly injured as
also he had seen that her sister’s hand had been broken, the
hand of his nephew Dilkush was badly injured and Nitu
Kumari had been inflicted with lathi injuries. Nitu Kumari
(P.W.5) has stated that she had seen her father having fallen
down on the ground in an injured condition and injuries were
present on his forehead as also all over his body and blood was
oozing out from his ear. She has also stated that others were
also injured. Sheela Devi (P.W.6) has stated that she had seen
the deceased having fallen down in an injured condition and
she had sustained injuries on her right hand while Sanjeev
Kumar Jha (P.W.3) had received injuries on his head and Nitu
Kumari (P.W.5) had also sustained injuries. We have also
perused the evidence of Dr. Rajesh Kishore Sahu (P.W.9), who
was posted as Medical Officer, Primary Health Centre,
Udakishunganj and had examined Sheela Devi (P.W.6) and
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Sanjeev Kumar Jha (P.W.3) on 08.05.2005 as also had prepared
their Injury Reports, which have been identified by him and as
far as Sheela Devi (P.W.6) is concerned, the same has been
marked as Exhibit-5 and 5/2, while that of Sanjeev Kumar Jha
(P.W.3) has been marked as Exhibit-5/1 which goes to prove
the factum of Sanjeev Kumar Jha (P.W.3) and Sheela Devi
(P.W.6) have sustained injuries attributable to the accused
persons.
39. At this juncture itself, it would be relevant to consider
the evidence of Dr. Shilwant Singh (P.W.1), who had
conducted the post mortem examination of the dead body of
the deceased, namely Ugra Narayan Jha at 05:30 p.m. on
08.05.2005 and had found various injuries, as has already been
discussed hereinabove in the preceding paragraphs. P.W.1 had
also found rigor mortis to be present in all the four limbs of the
deceased and he has opined that cause of the death of the
deceased is on account of shock and brain injury due to the
injuries found by him, as stated in the post mortem report and
the weapon used is hard and blunt substance. The post mortem
report has been identified by Dr. Shilwant Singh (P.W.1) to be
in his pen and signature and the same was marked as Exhibit-1.
Thus, we find that the death of Ugra Narayan Jha had taken
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place on account of shock and brain injury due to the injuries
inflicted upon him by the accused persons and the weapon used
by them i.e. lathi also stands substantiated since Dr. Shilwant
Singh (P.W.1) has stated that the weapon used is hard and blunt
substance.
40. Now coming to the evidence of Umesh Chandra Prasad
(P.W.7) i.e. the Investigating Officer of the present case, who
was posted as Assistant Inspector of Police at Udakishunganj
Police Station on 08.05.2005, we find that he has identified and
proved the fardbeyan, F.I.R., carbon copy of Inquest Report
and had also conducted the inspection of the place of
occurrence regarding which he has given detailed description
in his evidence. P.W.7 had also filed the chargesheet and he has
stated in his evidence that he had recorded the statement of
Panches, independent witnesses Rajesh Jha, Chuna Jha,
Chandra Kishore Jha, Chaturi Mandal, Chandeshwar Jha,
Udakant Jha, Ram Narayan Jha (P.W.2), Krishna Kant Jha
(P.W.8) and other witnesses. P.W. 7 has also stated in his
evidence that the independent witnesses and others had
disclosed before him that altercation had taken place between
Ugra Narayan Jha (deceased) and Mrityunjay Jha (appellant
no.2 of the first case) as also with other accused persons
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leading to him being assaulted, resulting in his death
subsequently. Thus, the mode and manner, date, time and place
of occurrence stands proved and corroborated by the evidence
of Umesh Chandra Prasad (P.W.7) as also from the evidence of
other witnesses, as discussed hereinabove in the preceding
paragraphs.
41. We shall now advert to the contention raised by the Ld.
Senior Counsel for the appellants to the effect that there is only
one eye witness to the alleged occurrence. In this regard, we
find that Nitu Kumari (P.W.5) is not only the eye witness to the
alleged occurrence but Sanjeev Kumar Jha (P.W.3) and Sheela
Devi (P.W.6) are also eye witnesses, as is apparent from their
evidence, discussed hereinabove in the preceding paragraphs
and as far as Ram Narayan Jha (P.W.2) is concerned, he had
seen the appellants of the first case running away from the
place of occurrence after the assault had taken place while
Nawal Kishore Thakur (P.W.4) had seen all the appellants
armed with lathi and his brother-in-law having fallen down and
injured badly, her sister’s hand having been broken, head of
nephew Dilkush injured badly and Nitu Kumari (P.W.5) having
received lathi injuries. In fact Krishna Kant Jha (P.W.8) had
also seen the appellants of the first and second case standing at
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the gate when he had come out of his house after hearing hulla
(alarm). Thus, it cannot be said that the mode and manner,
date, time and place of occurrence have not stood proved by
the evidence led by the prosecution. The other issue raised by
the Ld. Senior Counsel for the appellants is that the injuries
sustained by the deceased have been exaggerated by the
prosecution witnesses and the evidence of the prosecution
witnesses is not trustworthy. As discussed hereinabove in the
preceding paragraphs regarding the witnesses examined by the
prosecution, we find that neither there is any inconsistency nor
any contradiction can be found in the evidence of the
prosecution witnesses and moreover, the defence has utterly
failed to illicit any contradiction while cross examining the
prosecution witnesses, hence we do not find the prosecution
witnesses to be untrustworthy.
42. At this juncture, it would be relevant to state that
Sanjeev Kumar Jha (P.W.3) and Sheela Devi (P.W.6) are
injured eye witnesses and it is a well settled law that injured
witnesses are granted special status and they offer an extremely
valuable piece of evidence. In this regard, reference be had to a
judgment rendered by the Hon’ble Apex Court in the case of
Abdul Sayeed vs State of Maharashtra, reported in 2010 (10)
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SCC 259, wherein it has been held that where a witness to the
occurrence has himself been injured in the incident, the
testimony of such a witness is generally considered to be very
reliable, as he is a witness that comes with a built-in-guarantee
of his presence at the scene of the crime and is unlikely to
spare his actual assailant(s) in order to falsely implicate
someone. It has also been held that convincing evidence is
required to discredit an injured witness.
43. It would also be apt to refer to a judgment rendered by
the Hon’ble Apex Court in the case of Birbal Nath vs State of
Rajasthan, reported in 2023 SCC Online SC 1396, wherein it
has been held that greater evidentiary value is attached to the
injured witness unless compelling reasons exist to doubt the
same. It would also be pertinent to refer to a judgment rendered
by the Hon’ble Apex Court in the case of Balu Sudam Khalde
& Anr. vs. State of Maharashtra, reported in (2023) 13 SCC
365, paragraph No. 26 whereof is reproduced hereinbelow:-
“26. When the evidence of an injured eyewitness is to
be appreciated, the undernoted legal principles
enunciated by the courts are required to be kept in
mind:
26.1.The presence of an injured eyewitness at the time
and place of the occurrence cannot be doubted unless
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
54/87there are material contradictions in his deposition.
26.2. Unless, it is otherwise established by the
evidence, it must be believed that an injured witness
would not allow the real culprits to escape and falsely
implicate the accused.
26.3. The evidence of injured witness has greater
evidentiary value and unless compelling reasons exist,
their statements are not to be discarded lightly.
26.4. The evidence of injured witness cannot be
doubted on account of some embellishment in natural
conduct or minor contradictions.
26.5. If there be any exaggeration or immaterial
embellishments in the evidence of an injured witness,
then such contradiction, exaggeration or embellishment
should be discarded from the evidence of injured, but
not the whole evidence.
26.6. The broad substratum of the prosecution version
must be taken into consideration and discrepancies
which normally creep due to loss of memory with
passage of time should be discarded.”
44. As regards the doubt being raised by the Ld. Senior
Counsel for the appellants with regard to the actual time of
occurrence by placing reliance on the evidence of Dr. Shilwant
Singh (P.W.1), who has stated in his evidence that the time
elapsed since death is within 6 hours, we find that Dr. Shilwant
Singh (P.W.1) has also stated in his evidence that rigor mortis
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was present in all the four limbs, meaning thereby that the time
elapsed since death was definitely more than 6 hours. In this
regard, we would like to refer to a judgment rendered by the
Hon’ble Apex Court in the case of Virendra Vs. State of U.P.,
reported in (2008) 16 SCC 582, paragraph no. 25 whereof is
reproduced hereinbelow:-
25. It is mentioned at p. 125 of Modi’s Medical
Jurisprudence and Toxicology, Edn. 1977 that in
general rigor mortis sets in 1 to 2 hours after death, is
well developed from head to foot in about 12 hours, is
maintained for about 12 hours and passes off in about
12 hours. In the instant case rigor mortis was present
in lower extremities at the time autopsy was conducted
on the dead body after 30 hours. As according to
ocular testimony the deceased was murdered on 5-10-
1979 at about 10.00 a.m. and the doctor conducted
autopsy on the dead body on the next day at about 4.30
p.m. after 30 hours of death but rigor mortis was found
present in lower extremities. Had he died on 4-10-1979
at about 10.00 p.m. or so rigor mortis would have
passed off from the dead body completely at the time of
autopsy. Thus the ocular testimony that he was
murdered on 5-10-1979 at about 10.00 a.m. stands
corroborated from the medical evidence pinpointing
that rigor mortis was present in lower extremities at the
time when the autopsy was conducted on the dead body
after 30 hours.
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45. We, upon perusal of the evidence on record also find
that the ocular evidence of Ram Narayan Jha (P.W.2), Sanjeev
Kumar Jha (P.W.3), Nawal Kishore Thakur (P.W.4), Nitu
Kumari (P.W.5), Sheela Devi (P.W.6) and Krishna Kant Jha
(P.W.8) are cogent, convincing, creditworthy and reliable as
also have stood the test of cross-examination apart from being
totally reconcilable and consistent with the medical evidence,
hence there is no reason to create any doubt about the guilt of
the appellants of the aforesaid appeals in the alleged
occurrence, which stands proved beyond all reasonable doubts.
46. As regards the contention raised by the Ld. Senior
Counsel for the appellants to the effect that the appellants of
the aforesaid appeals cannot be convicted under Section 302 of
the I.P.C. with the aid of Section 34 of the I.P.C., inasmuch as
for the said purpose, it must be established that all the accused
pre-planned and shared common intention to commit the crime
with the accused who had actually committed the crime and
that criminal act has been done in furtherance of common
intention of all the accused. We find that in the present case, all
the appellants of the aforesaid appeals were present at the place
of occurrence, armed with lathi and that too early in the
morning at about 5:00 a.m., when generally the people of the
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village were sleeping and it is apparent from the evidence on
record that all of them shared a common intention to commit a
criminal act, as aforesaid and had in fact in furtherance of their
pre-mediated concert and common intention assaulted the
deceased, Sanjeev Kumar Jha (P.W.3), Nitu Kumari (P.W.5)
and Sheela Devi (P.W.6), hence all the accused persons
including the aforesaid appellants stand jointly liable for the
offence committed under Section 302 of the I.P.C. In fact, it is
a trite law that Section 34 does not create a distinct offence but
is a principle of constructive liability and in order to incur a
joint liability for an offence, there must be a pre-arranged and
pre-mediated concert between the accused persons for doing
the act actually done, however there may not be a long interval
between the offence committed and the pre-meditation and the
plan can be formed suddenly and moreover, the prosecution is
not required to prove that an act was done by a particular
person. Thus, the contention put forth by the Ld. Senior
Counsel for the appellants that there was no pre-planning
amongst the accused persons who committed the said crime,
hence they would not be held liable to be convicted with the
aid of Section 34 is not legally tenable in the eyes of law. In
this regard, it would be apt to refer to a judgment rendered by
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the Hon’ble Apex Court in the case of Gulab Vs. State of UP,
reported in 2022 (12) SCC 677 paragraph Nos. 24, 25, 27 and
31 whereof are reproduced herein below:-
“24. Section 34 IPC provides that:
“34. Acts done by several persons in furtherance of
common intention– When a criminal act is done by
several persons in furtherance of the common
intention of all, each of such persons is liable for that
act in the same manner as if it were done by him
alone.”
25. The well-established principle underlying the above
provisions emerges from the decision of Vivian Bose, J.
in Pandurang v. State of Hyderabad [AIR 1955 SC 216]
where it was held :
“32. Now in the case of Section 34 we think it is well
established that a common intention presupposes
prior concert. It requires a prearranged plan because
before a man can be vicariously convicted for the
criminal act of another, the act must have been done
in furtherance of the common intention of them all.
[Mahbub Shah v. King Emperor [1945 SCC OnLine
PC 5]. Accordingly, there must have been a prior
meeting of minds. Several persons can simultaneously
attack a man and each can have the same intention,
namely, the intention to kill, and each can individually
inflict a separate fatal blow and yet none would have
the common intention required by the section because
there was no prior meeting of minds to form a
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
59/87prearranged plan. In a case like that, each would be
individually liable for whatever injury he caused but
none could be vicariously convicted for the act of any
of the others; and if the prosecution cannot prove that
his separate blow was a fatal one he cannot be
convicted of the murder however clearly an intention
to kill could be proved in his case. [Barendra Kumar
Ghosh v. King Emperor [1924 SCC OnLine PC 49
and Mahbub Shah v. King Emperor [1945 SCC
OnLine PC 5] As their Lordships say in the latter
case, ‘the partition which divides their bounds is often
very thin: nevertheless, the distinction is real and
substantial, and if overlooked will result in
miscarriage of justice.’ [Mahbub Shah v. King
Emperor, 1945 SCC OnLine PC 5]
33. The plan need not be elaborate, nor is a long
interval of time required. It could arise and be formed
suddenly, as for example when one man calls on
bystanders to help him kill a given individual and
they, either by their words or their acts, indicate their
assent to him and join him in the assault. There is
then the necessary meeting of the minds. There is a
prearranged plan however hastily formed and rudely
conceived. But prearrangement there must be and
premeditated concert. It is not enough, as in the latter
Privy Council case, to have the same intention
independently of each other e.g. the intention to
rescue another and, if necessary, to kill those who
oppose.”
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27.Emphasising the fundamental principles underlying
Section 34, this Court held that:
27.1. Section 34 does not create a distinct offence, but is
a principle of constructive liability.
27.2. In order to incur a joint liability for an offence
there must be a prearranged and premeditated concert
between the accused persons for doing the act actually
done.
27.3.There may not be a long interval between the act
and the premeditation and the plan may be formed
suddenly. In order for Section 34 to apply, it is not
necessary that the prosecution must prove an act was
done by a particular person.
(Underlining mine)
27.4. The provision is intended to cover cases where a
number of persons act together and on the facts of the
case, it is not possible for the prosecution to prove who
actually committed the crime.
31. The evidence on the record clearly establishes a
common intention in pursuance of which the appellant
exhorted Idrish to kill the deceased. The prosecution is
not required to prove that there was an elaborate plan
between the accused to kill the deceased or a plan was
in existence for a long time. A common intention to
commit the crime is proved if the accused by their words
or action indicate their assent to join in the commission
of the crime. The appellant reached the spot with a lathi,
along with Idrish who had a pistol. The appellant’s
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exhortation was crucial to the commission of the crime
since it was only after he made the statement that the
enemy has been found, that Idrish fired the fatal shot.
The role of the appellant, his presence at the spot and
the nature of the exhortation have all emerged from the
consistent account of the three eyewitnesses.”
47. Thus, taking into account an overall perspective of the
entire case, emerging out of the totality of the facts and
circumstances, as indicated hereinabove and considering the
evidence, which has been brought on record to prove the
allegations levelled against the appellants beyond pale of any
reasonable doubt as well as considering the credibility and
trustworthiness of the evidence of the prosecution, which has
not been discredited during the course of cross-examination
coupled with the injury reports as also the postmortem report
and for the reasons mentioned hereinabove, we find that there
is no reason to create any doubt in our minds. Therefore, there
is no reason to create any doubt about the guilt of the
appellants of the aforesaid three appeals in the alleged
occurrence which stands proved beyond all reasonable doubts.
Hence, having examined the materials available on record, we
do not find any apparent error in the impugned judgment of
conviction.
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48. We would now take up for consideration the alternative
argument advanced by the Ld. Senior Counsel for the
appellants to the effect that the appellants had no intention to
cause death and the occurrence had taken place at the spur of
the moment inasmuch as not only they were merely armed with
lathi but only one or at best two injuries have been found on
the dead body of the deceased and from the medical evidence,
it does not appear that repeated lathi blows were either
inflicted on the rest of the body of the deceased or the other
injured persons i.e. Sanjeev Kumar Jha (P.W.3) and Sheela
Devi (P.W.6), hence the present case would not fall within the
purview of Section 302 of I.P.C., rather it would at best attract
Section 304 Part II of the I.P.C., in absence of any intention to
cause death of the deceased. We have given a careful
consideration to the aforesaid argument advanced by the Ld.
Senior Counsel for the appellants. As far as the present case is
concerned, it is apparent not only from the evidence adduced
by the prosecution as also from the FIR that the accused
persons, all armed with lathi had assaulted the deceased,
Sanjeev Kumar Jha (P.W.3), Nitu Kumari (P.W.5) and Sheela
Devi (P.W.6), however neither repeated blows were inflicted
upon the deceased nor upon the other injured witnesses nor the
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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accused persons had ensured that the deceased, Sanjeev Kumar
Jha (P.W.3), Nitu Kumari (P.W.5) and Sheela Devi (P.W.6)
were assaulted in such a brutal manner so as to cause their
death.
49. From the entire conspectus of the case and considering
the factual matrix, it can be gathered that the act done by the
appellant(s), who had caused death of the deceased, was with a
knowledge that such an act is likely to cause death but the facts
are not such, so as to establish the intention of the appellant(s)
to cause death of the deceased. “Intent” and “knowledge” are
ingredients of Section 299 I.P.C. and so far as an act done by
an accused which causes death with a knowledge that the death
was likely to be caused by such act but the accused did not
have any intention to cause death, would come within the
purview of Section 304 Part II of the I.P.C. Having considered
the facts and circumstances of the present case as also the well
settled law on the said issue, we safely conclude that the
present case, in absence of any intention on the part of the
appellants to cause death, cannot be described as murder but it
would be culpable homicide not amounting to murder.
50. We may refer to a Judgment rendered by the Hon’ble
Apex Court in the case of Litta Singh and another Vs. State of
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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Rajasthan, reported in (2015) 15 SCC 327, wherein the
Hon’ble Supreme Court of India while converting the
conviction under Section 302 to 304 Part II of the I.P.C. has
held as under:-
“23. Considering the nature of the injury caused to
the deceased and the weapons i.e. lathi and gandasi
(sickle) used by them, it cannot be ruled out that they
assaulted the deceased with the knowledge that the
injury may cause death of the person. Moreover,
there is no evidence from the side of the prosecution
that the accused persons preplanned to cause death
and with that intention they were waiting for the
deceased coming from the field and then with an
intention to kill the deceased they assaulted him.
24. It is a well-settled proposition of law that the
intention to cause death with the knowledge that the
death will probably be caused, is a very important
consideration for coming to the conclusion that death
is indeed a murder with intention to cause death or
the knowledge that death will probably be caused.
From the testimonies of the witnesses, it does not
reveal that the accused persons intended to cause
death and with that intention they started inflicting
injuries on the body of the deceased. Even more
important aspect is that while they were beating the
deceased the witnesses reached the place and
shouted whereupon the accused persons immediately
ran away instead of inflicting more injuries with the
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65/87intent to kill the deceased.
26. After analysing the entire evidence, it is evidently
clear that the occurrence took place suddenly and
there was no premeditation on the part of the
appellants. There is no evidence that the appellants
made special preparation for assaulting the deceased
with the intent to kill him. There is no dispute that the
appellants assaulted the deceased in such a manner
that the deceased suffered grievous injuries which
were sufficient to cause death, but we are convinced
that the injury was not intended by the appellants to
kill the deceased.
27. In the facts and circumstances of the case, in our
considered opinion, the instant case falls under
Section 304 Part II I.P.C. as stated above. Although
the appellants had no intention to cause death but it
can safely be inferred that the appellants knew that
such bodily injury was likely to cause death, hence
the appellants are guilty of culpable homicide not
amounting to murder & are liable to be punished
under Section 304 Part II I.P.C.”
51. Thus, based on an encapsulation of the above mentioned
facts and circumstances of the case and the law prevailing on
the subject matter, it has weighed upon us to come to a finding
that the present case would fall under Section 304 Part (II) of
the I.P.C., especially in view of the fact that from the evidence
adduced by the prosecution, intention to kill the deceased does
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not get established and moreover, the elements of intention to
cause death seems to be missing. Therefore, upon considering
the entire case of the prosecution and the evidence adduced in
support of the same, we feel that the appellants of all the
aforesaid three appeals are liable to be convicted under Section
304 Part (II) of the I.P.C. As such, the conviction of the
appellants under Section 302/34 of the I.P.C. and the sentence
of rigorous imprisonment for life awarded there under are set
aside and instead the appellants are convicted under Section
304 Part (II) of the I.P.C., however conviction under Section
323 of the I.P.C. would stand against the appellant no.2 of the
first case, namely Mrityunjay Jha as also against the sole
appellant of the second case, namely Santosh Jha @ Santosh
Kumar Jha but with no separate sentence being awarded there
under.
52. Before coming to the sentence part, we would like to
refer to few case laws wherein the conviction of the accused
persons have been converted from Section 302 I.P.C. to one
under Section 304 Part (II) I.P.C. and lesser than the maximum
sentence has been awarded or the accused persons have been
sentenced to undergo the custody period already undergone by
them. In this connection, reference be had to the following
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judgments rendered by the Hon’ble Apex Court:-
(i) Camilo Vaz vs. State of Goa, reported in (2000) 9
SCC 1;
(ii) Rampal Singh vs. State of U.P., reported in (2012) 8
SCC 289;
(iii) Ankush Shivaji Gaikwad vs. State of Maharashtra,
reported in (2013) 6 SCC 770;
(iv) Chenda vs. State of Chhattisgarh, reported in
(2013) 12 SCC 110;
(v) Surain Singh vs. State of Punjab, reported in (2017)
5 SCC 796;
(vi) Anbazhagan vs. State, reported in 2023 SCC
OnLine SC 857; and
(vii) Velthepu Srinivas vs. State of Telangana, reported
in 2024 SCC OnLine SC 107.
53. It would be apt to refer to a judgment rendered by the
Hon’ble Apex Court, reported in (2011) 14 SCC 471 (Buddhu
Singh & Others Vs. State of Bihar), wherein once again the
issue of conversion of conviction from Section 302 I.P.C. to
Section 304 Part II of the I.P.C. was raised although the death
was caused by an axe blow on the head of the deceased. The
Hon’ble Apex Court, considering the absence of element of
intention, held that the offence constituted culpable homicide
not amounting to murder and converted the conviction of the
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accused from Section 302 I.P.C. to Section 304 Part II I.P.C.
and sentenced each of them to the period already undergone.
We think it proper to quote paragraphs-8 and 9 of the said
judgment herein below:-
“8. Considering the overall material, we are of the
view that there is hardly anything on record which
can be said against accused Ledwa Singh and
Balchand Singh though the common intention on their
part could be attributed since they had done the overt
act of grappling with and pinning down the deceased.
Now, seeing that his father and brother had been
grappling with the deceased, accused Buddhu Singh
dealt an axe-blow which could not be said to be
intended towards the head. It could have landed
anywhere. However, it landed on the head of the
deceased. Therefore, the element of intention is ruled
out. Again the defence raised on behalf of the accused
that there could not have been the intention to commit
the murder of the deceased is justified by the fact that
accused Buddhu Singh did not repeat the assault.
Under the circumstances, we feel that the prosecution
has been able to establish the guilt of the accused
persons under Section 304 Part II I.P.C.
9. We, accordingly, modify the finding of the High
Court and convert the conviction of the accused from
Section 302 I.P.C. to Section 304 Part II I.P.C. and
sentence each of them to the period already
undergone. Accused Buddhu Singh is stated to be in
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69/87jail for the last five years whereas other accused
persons, namely, Ledwa Singh and Balchand Singh
are stated to be in jail for the last ten years. They be
released from the jail forthwith unless they are
required in any other case.”
54. We have made an in-depth analysis of the principles
pertaining to sentencing and find that the same have been
congruously and succinctly laid down by the Hon’ble Apex
Court in a catena of judgments, rendered in the cases of Santa
Singh vs. State of Punjab, reported in 1976 (4) SCC 190,
Tholan vs. State of Tamil Nadu, reported in 1984 (2) SCC
133, Sevak Perumal & Anr. Vs State of Tamil Nadu, reported
in 1991 (3) SCC 471, State of Uttar Pradesh vs. Shri Kishan
reported in 2005 (10) SCC 420, Gopal Singh vs. State of
Uttarakhand, reported in 2013 (7) SCC 545 and Pratap Singh
@ Pikki vs. State of Uttarakhand, reported in 2019 (7) SCC
424. It would be apropos to summarise few important
principles of law discernible from the aforesaid Judgments
rendered by the Hon’ble Apex Court, herein below:-
(i) A proper sentence is amalgam of many factors,
which are being enumerated herein below:-
— the nature of the offence,
— the circumstances – extenuating or aggravating –
of the offence,
— the prior criminal record, if any, of the offender,
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— the age of the offender,
— the record of the offender as to employment,
— the background of the offender with reference to
education, home — life, sobriety and social
adjustment,
— the emotional and mental condition of the
offender,
— the prospects for the rehabilitation of the
offender,
— the possibility of return of the offender to a
normal life in the community,
— the possibility of treatment or training of the
offender,
— the possibility that the sentence may serve as a
deterrent to crime by the offender or by others.
(ii) Undue sympathy to impose inadequate sentence
has been held to do more harm to the justice system
since the same undermines the public confidence in the
efficacy of law and society. It is, therefore, the duty of
every court to award proper sentence having regard to
the nature of the offence and the manner in which it was
executed or committed etc., inasmuch as if the courts do
not protect the injured, the injured may then resort to
private vengeance.
(iii) For deciding just and appropriate sentence to be
awarded for an offence, after giving due consideration to
the facts and circumstances of each case, the aggravating
and mitigating factors and circumstances in which a
crime has been committed are to be delicately balanced
on the basis of relevant circumstances in a dispassionate
manner by the Court.
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(iv) The object should be to protect the society and to
deter the criminal in achieving the avowed object of law
by imposing appropriate sentence. It is expected that the
courts would operate the sentencing system so as to
impose such sentence which reflects the conscience of
the society and the sentencing process has to be stern
where it should be.
(v) Imposition of sentence without considering its
effect on the social order in many cases may in reality be
a futile exercise. The social impact of the crime e.g.
where it relates to offences against women, dacoity,
kidnapping, misappropriation of public money, treason
and other offences involving moral turpitude or moral
delinquency which have great impact on social order and
public interest, cannot be lost sight of and per se require
exemplary treatment. Any liberal attitude by imposing
meagre sentences or taking too sympathetic view merely
on account of lapse of time in respect of such offences
will be resultwise counterproductive in the long run and
against societal interest which needs to be cared for and
strengthened by string of deterrence inbuilt in the
sentencing system.
(vi) The court will be failing in its duty if appropriate
punishment is not awarded for a crime which has been
committed not only against the individual victim but
also against the society to which the criminal and victim
belong. The punishment to be awarded for a crime must
not be irrelevant but it should conform to and be
consistent with the atrocity and brutality with which the
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crime has been perpetrated, the enormity of the crime
warranting public abhorrence and it should “respond to
the society’s cry for justice against the criminal.
55. We would also like to gainfully reproduce paragraph
nos.18 and 19 of the judgment rendered by the Hon’ble Apex
Court in the case of Gopal Singh (supra) hereinbelow:-
“18. Just punishment is the collective cry of the
society. While the collective cry has to be kept
uppermost in the mind, simultaneously the principle
of proportionality between the crime and punishment
cannot be totally brushed aside. The principle of just
punishment is the bedrock of sentencing in respect of
a criminal offence. A punishment should not be
disproportionately excessive. The concept of
proportionality allows a significant discretion to the
Judge but the same has to be guided by certain
principles. In certain cases, the nature of culpability,
the antecedents of the accused, the factum of age, the
potentiality of the convict to become a criminal in
future, capability of his reformation and to lead an
acceptable life in the prevalent milieu, the effect –
propensity to become a social threat or nuisance, and
sometimes lapse of time in the commission of the
crime and his conduct in the interregnum bearing in
mind the nature of the offence, the relationship
between the parties and attractability of the doctrine
of bringing the convict to the value-based social
mainstream may be the guiding factors. Needless to
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
73/87emphasise, these are certain illustrative aspects put
forth in a condensed manner. We may hasten to add
that there can neither be a straitjacket formula nor a
solvable theory in mathematical exactitude. It would
be dependent on the facts of the case and rationalised
judicial discretion. Neither the personal perception of
a Judge nor self-adhered moralistic vision nor
hypothetical apprehensions should be allowed to have
any play. For every offence, a drastic measure cannot
be thought of. Similarly, an offender cannot be
allowed to be treated with leniency solely on the
ground of discretion vested in a court. The real
requisite is to weigh the circumstances in which the
crime has been committed and other concomitant
factors which we have indicated hereinbefore and
also have been stated in a number of pronouncements
by this Court. On such touchstone, the sentences are
to be imposed. The discretion should not be in the
realm of fancy. It should be embedded in the
conceptual essence of just punishment.
19. A court, while imposing sentence, has to keep in
view the various complex matters in mind. To
structure a methodology relating to sentencing is
difficult to conceive of. The legislature in its wisdom
has conferred discretion on the Judge who is guided
by certain rational parameters, regard been had to
the factual scenario of the case. In certain spheres the
legislature has not conferred that discretion and in
such circumstances, the discretion is conditional. In
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74/87respect of certain offences, sentence can be reduced
by giving adequate special reasons. The special
reasons have to rest on real special circumstances.
Hence, the duty of the court in such situations
becomes a complex one. The same has to be
performed with due reverence for the rule of law and
the collective conscience on one hand and the
doctrine of proportionality, principle of reformation
and other concomitant factors on the other. The task
may be onerous but the same has to be done with total
empirical rationality sans any kind of personal
philosophy or individual experience or any a priori
notion.”
56. It would be apposite to refer to a judgment rendered by
the Hon’ble Apex Court in the State of Madhya Pradesh vs.
Suresh, reported in 2019(14) SCC 151, paragraph nos.10 to 20
whereof are reproduced herein below:-
“10. The respondent was tried for the offence under
Sections 302 and 201 IPC. With the evidence on
record, it was clearly established that the respondent
was author of the fatal injury in question. The trial
court, with reference to the nature of the act of the
respondent and the attending circumstances,
convicted him for culpable homicide not amounting to
murder under Section 304 Part II IPC and let him off
for the offence under Section 201 IPC because he had
been convicted for the main offence. This part of the
order of the trial court having attained finality and
having not been questioned even in this appeal, we
would leave the matter as regards conviction at that
only. However, the question remains as to whether all
the facts and circumstances of case taken together
justify such indulgence that the punishment of
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75/87rigorous imprisonment for a period of 3 years, as
awarded by the trial court, be reduced to that of 3
months and 21 days? In our view, the answer to this
question could only be in the negative.
11. In State of M.P. v. Ghanshyam Singh [(2003) 8
SCC 13], relating to the offence punishable under
Section 304 Part I IPC, this Court found sentencing
for a period of 2 years to be too inadequate and even
on a liberal approach, found the custodial sentence of
6 years serving the ends of justice. This Court
underscored the principle of proportionality in
prescribing liability according to the culpability; and
while also indicating the societal angle of sentencing,
cautioned that undue sympathy leading to inadequate
sentencing would do more harm to the justice system
and undermine public confidence in the efficacy of
law. This Court observed, inter alia, as under:
“12. Therefore, undue sympathy to impose
inadequate sentence would do more harm to the
justice system to undermine the public confidence
in the efficacy of law and society could not long
endure under such serious threats. It is, therefore,
the duty of every court to award proper sentence
having regard to the nature of the offence and the
manner in which it was executed or committed,
etc. This position was illuminatingly stated by this
Court in Sevaka Perumal v. State of T.N. [Sevaka
Perumal v. State of T.N., (1991) 3 SCC]
13. Criminal law adheres in general to the
principle of proportionality in prescribing liability
according to the culpability of each kind of
criminal conduct. It ordinarily allows some
significant discretion to the Judge in arriving at a
sentence in each case, presumably to permit
sentences that reflect more subtle considerations
of culpability that are raised by the special facts
of each case. Judges, in essence, affirm that
punishment ought always to fit the crime; yet in
practice sentences are determined largely by
other considerations. Sometimes it is the
correctional needs of the perpetrator that are
offered to justify a sentence, sometimes the
desirability of keeping him out of circulation, and
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76/87sometimes even the tragic results of his crime.
Inevitably, these considerations cause a departure
from just deserts as the basis of punishment and
create cases of apparent injustice that are serious
and widespread.
14. Proportion between crime and punishment is
a goal respected in principle, and in spite of
errant notions, it remains a strong influence in the
determination of sentences. The practice of
punishing all serious crimes with equal severity is
now unknown in civilised societies, but such a
radical departure from the principle of
proportionality has disappeared from the law only
in recent times. Even now for a single grave
infraction drastic sentences are imposed.
Anything less than a penalty of greatest severity
for any serious crime is thought then to be a
measure of toleration that is unwarranted and
unwise. But in fact, quite apart from those
considerations that make punishment unjustifiable
when it is out of proportion to the crime,
uniformly disproportionate punishment has some
very undesirable practical consequences.
15. After giving due consideration to the facts and
circumstances of each case, for deciding just and
appropriate sentence to be awarded for an
offence, the aggravating and mitigating factors
and circumstances in which a crime has been
committed are to be delicately balanced on the
basis of really relevant circumstances in a
dispassionate manner by the court. Such act of
balancing is indeed a difficult task. It has been
very aptly indicated in McGautha v. California
[1971 SCC OnLine US SC 89 : 402 US 183
(1971)] that no formula of a foolproof nature is
possible that would provide a reasonable criterion
in determining a just and appropriate punishment
in the infinite variety of circumstances that may
affect the gravity of the crime. In the absence of
any foolproof formula which may provide any
basis for reasonable criteria to correctly assess
various circumstances germane to the
consideration of gravity of crime, the
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
77/87discretionary judgment in the facts of each case is
the only way in which such judgment may be
equitably distinguished.
17. Imposition of sentence without considering its
effect on the social order in many cases may be in
reality a futile exercise. The social impact of the
crime e.g. where it relates to offences against
women, dacoity, kidnapping, misappropriation of
public money, treason and other offences
involving moral turpitude or moral delinquency
which have great impact on social order and
public interest cannot be lost sight of and per se
require exemplary treatment. Any liberal attitude
by imposing meagre sentences or taking too
sympathetic a view merely on account of lapse of
time in respect of such offences will be resultwise
counterproductive in the long run and against
societal interest which needs to be cared for and
strengthened by a string of deterrence inbuilt in
the sentencing system.
19. Similar view has also been expressed in Ravji
v. State of Rajasthan [(1996) 2 SCC 175]. It has
been held in the said case that it is the nature and
gravity of the crime but not the criminal, which
are germane for consideration of appropriate
punishment in a criminal trial. The court will be
failing in its duty if appropriate punishment is not
awarded for a crime which has been committed
not only against the individual victim but also
against the society to which the criminal and
victim belong. The punishment to be awarded for
a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and
brutality with which the crime has been
perpetrated, the enormity of the crime warranting
public abhorrence and it should ‘respond to the
society’s cry for justice against the criminal’.”
(emphasis supplied)
12. In Alister Anthony Pareira v. State of
Maharashtra, [(2012) 2 SCC 648] , the allegations
against the appellant had been that while driving a
car in drunken condition, he ran over the pavement,
killing 7 persons and causing injuries to 8. He was
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charged for the offences under Sections 304 Part II
and 338 IPC; was ultimately convicted [State of
Maharashtra v. Alister Anthony Pareira, 2007 SCC
OnLine Bom 1490] by the High Court under Sections
304 Part II, 338 and 337 IPC; and was sentenced to 3
years’ rigorous imprisonment with a fine of Rs 5 lakhs
for the offence under Section 304 Part II IPC and to
rigorous imprisonment for 1 year and for 6 months
respectively for the offences under Sections 338 and
337 IPC. Apart from other contentions, one of the
pleas before this Court was that in view of fine and
compensation already paid and willingness to make
further payment as also his age and family
circumstances, the appellant may be released on
probation or his sentence may be reduced to that
already undergone. As regards this plea for
modification of sentence, this Court traversed through
the principles of penology, as enunciated in several of
the past decisions [ This Court referred, amongst
others, to the decisions in State of Karnataka v.
Krishnappa, (2000) 4 SCC 75; Dalbir Singh v. State
of Haryana, (2000) 5 SCC 82; State of M.P. v.
Saleem, (2005) 5 SCC 554; Ravji v. State of
Rajasthan, (1996) 2 SCC 175; State of M.P. v.
Ghanshyam Singh, (2003) 8 SCC 13] and, while
observing that the facts and circumstances of the case
show “a despicable aggravated offence warranting
punishment proportionate to the crime”, this Court
found no justification for extending the benefit of
probation or for reduction of sentence. On the
question of sentencing, this Court re-emphasised as
follows:
“84. Sentencing is an important task in the matters
of crime. One of the prime objectives of the
criminal law is imposition of appropriate,
adequate, just and proportionate sentence
commensurate with the nature and gravity of
crime and the manner in which the crime is done.
There is no straitjacket formula for sentencing an
accused on proof of crime. The courts have
evolved certain principles: the twin objective of
the sentencing policy is deterrence and
correction. What sentence would meet the ends of
justice depends on the facts and circumstances of
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
79/87each case and the court must keep in mind the
gravity of the crime, motive for the crime, nature
of the offence and all other attendant
circumstances.
85. The principle of proportionality in sentencing
a crime-doer is well entrenched in criminal
jurisprudence. As a matter of law, proportion
between crime and punishment bears most
relevant influence in determination of sentencing
the crime doer. The court has to take into
consideration all aspects including social interest
and consciousness of the society for award of
appropriate sentence.”
(emphasis supplied)
13. Therefore, awarding of just and adequate
punishment to the wrongdoer in case of proven crime
remains a part of duty of the court. The punishment to
be awarded in a case has to be commensurate with
the gravity of crime as also with the relevant facts and
attending circumstances. Of course, the task is of
striking a delicate balance between the mitigating
and aggravating circumstances. At the same time, the
avowed objects of law, of protection of society and
responding to the society’s call for justice, need to be
kept in mind while taking up the question of
sentencing in any given case. In the ultimate analysis,
the proportion between the crime and punishment has
to be maintained while further balancing the rights of
the wrongdoer as also of the victim of the crime and
the society at large. No straitjacket formula for
sentencing is available but the requirement of taking
a holistic view of the matter cannot be forgotten.
14. In the process of sentencing, any one factor,
whether of extenuating circumstance or aggravating,
cannot, by itself, be decisive of the matter. In the same
sequence, we may observe that mere passage of time,
by itself, cannot be a clinching factor though, in an
appropriate case, it may be of some bearing, along
with other relevant factors. Moreover, when certain
extenuating or mitigating circumstances are
suggested on behalf of the convict, the other factors
relating to the nature of crime and its impact on the
social order and public interest cannot be lost sight
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of.
15. Keeping in view the principles aforesaid, when the
present matter is examined, we find that the
respondent is convicted of the offence under Section
304 Part II IPC. Section 304 IPC reads as under:
“304. Punishment for culpable homicide not
amounting to murder.–Whoever commits
culpable homicide not amounting to murder, shall
be punished with imprisonment for life, or
imprisonment of either description for a term
which may extend to ten years, and shall also be
liable to fine, if the act by which the death is
caused is done with the intention of causing
death, or of causing such bodily injury as is likely
to cause death; or with imprisonment of either
description for a term which may extend to ten
years, or with fine, or with both, if the act 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.
16. Therefore, when an accused is convicted for the
offence under Part II of Section 304 ibid., he could be
sentenced to imprisonment for a term which may
extend to a period of 10 years, or with fine, or both.
In this case, the trial court chose to award the
punishment of 3 years’ rigorous imprisonment to the
respondent. The punishment so awarded by the trial
court had itself been leaning towards leniency,
essentially in view of the fact that the respondent was
26 years of age at the time of the incident in question.
However, the High Court further proceeded to reduce
the punishment to the period already undergone (i.e.
3 months and 21 days) on consideration of the
factors: (i) that the incident had taken place on spur
of the moment; (ii) that the respondent was 26 years
of age at the time of incident; and (iii) that the
respondent himself took his father to hospital. On
these considerations and after finding that the
respondent had spent 3 months and 21 days in
custody, the High Court concluded that “no useful
purpose would be served in sending the appellant
back to jail”. We are clearly of the view that, further
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81/87indulgence by the High Court, over and above the
leniency already shown by the trial court, was totally
uncalled for.
17. So far the mitigating factors, as taken into
consideration by the High Court are concerned,
noticeable it is that the same had already gone into
consideration when the trial court awarded a
comparatively lesser punishment of 3 years’
imprisonment for the offence punishable with
imprisonment for a term that may extend to 10 years,
or with fine, or with both. In fact, the factor that the
incident had happened on the “spur of the moment”:
had been the basic reason for the respondent having
been convicted for the offence of culpable homicide
not amounting to murder under Section 304 Part II
IPC though he was charged for the offence of murder
under Section 302 IPC. This factor could not have
resulted in awarding just a symbolic punishment.
Then, the factor that the respondent was 26 years of
age had been the basic reason for awarding
comparatively lower punishment of 3 years’
imprisonment. This factor has no further impelling
characteristics which would justify yet further
reduction of the punishment than that awarded by the
trial court. Moreover, the third factor, of the
respondent himself taking his father to hospital,
carries with it the elements of pretence as also
deception on the part of the respondent, particularly
when he falsely stated that the victim sustained injury
due to the fall. Therefore, all the aforementioned
factors could not have resulted in further reduction of
the sentence as awarded by the trial court.
18. The High Court also appears to have omitted to
consider the requirement of balancing the mitigating
and aggravating factors while dealing with the
question of awarding just and adequate punishment.
The facts and the surrounding factors of this case
make it clear that, the offending act in question had
been of the respondent assaulting his father with a
blunt object which resulted in the fracture of skull of
the victim at parietal region. Then, the respondent
attempted to cover up the crime by taking his father to
hospital and suggesting as if the victim sustained
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injury because of fall from the roof. Thus, the acts and
deeds of the respondent had been of killing his own
father and then, of furnishing false information. The
homicidal act of the respondent had, in fact, been of
patricide; killing of one’s own father. In such a case,
there was no further scope for leniency on the
question of punishment than what had already been
shown by the trial court; and the High Court was not
justified in reducing the sentence to an abysmally
inadequate period of less than 4 months. The
observations of the High Court that no useful purpose
would be served by detention of the accused cannot
be approved in this case for the reason that the
objects of deterrence as also protection of society are
not lost with mere passage of time.
19. In the given set of facts and circumstances, the
observations in Jinnat Mia v. State of Assam, [(1998)
9 SCC 319] on the powers of the High Court to
review the entire matter in appeal and to come to its
own conclusion or that the practice of this Court not
to interfere on questions of facts except in exceptional
cases shall have no application to the present case,
particularly when we find that the High Court has
erred in law and has not been justified in reducing the
sentence to a grossly inadequate level while ignoring
the relevant considerations.
20. To sum up, after taking into account all the
circumstances of this case, we are of the considered
view that the High Court had been in error in
extending undue sympathy and in awarding the
punishment of rigorous imprisonment for the period
already undergone i.e. 3 months and 21 days for the
offence under Section 304 Part II IPC. In our view,
there was absolutely no reason for the High Court to
interfere with the punishment awarded by the trial
court, being that of rigorous imprisonment for 3
years.”
57. We would now like to give a careful consideration to the
facts of the present case for the purposes of awarding a proper
sentence, considering the principles laid down by the Hon’ble
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Apex Court in a catena of judgments, as has been referred to
hereinabove in the preceding paragraphs. The facts and
circumstances of the present case depicts that the appellants had
not intended to cause any fatal injury to anyone, which would
have caused death. It would also be seen that the deceased
sustained one or at best two injuries, as would be apparent from
the evidence of Dr. Shilwant Singh (P.W.1), whereas Sanjeev
Kumar Jha (P.W.3) sustained simple injury while Sheela Devi
(P.W.6) also sustained not so serious injury on non-vital part of
her body, as would be apparent from the evidence of Dr. Rajesh
Kishore Sahu (P.W.9). This leaves us to a prudent consideration
that the appellants never planned to inflict such type of injuries
which would cause death of the deceased muchless death of
Sanjeev Kumar Jha (P.W.3) and Sheela Devi (P.W.6), hence this
takes away the element of intention of causing death or
inflicting any kind of serious repeated bodily injury upon the
members of the prosecution side.
58. Factually, the appellant no.1 of the first case has
remained in custody for more than 8 years, the appellant no.2 of
the first case has been in custody for about 8 years. As far as the
appellant of the second case is concerned, he has remained in
custody for about 3½ years while the appellant of the third case
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
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has remained in custody for less than six months. Now,
adverting to the requirement of balancing the aggravating and
mitigating factors and circumstances in which a crime has been
committed on the basis of really relevant circumstances, we find
that the prosecution witnesses, i.e. Ram Narayan Jha (P.W.2),
Nawal Kishore Thakur (P.W.4), Nitu Kumari (P.W.5) and
Krishna Kant Jha (P.W.8), have in their evidence nowhere
deposed that the appellants of the second case and third case had
either assaulted the deceased or the injured witnesses and as far
as prosecution witnesses, Sanjeev Kumar Jha (P.W.3) & Sheela
Devi (P.W.6) are concerned, they have also not levelled any
specific allegation of any sort of overt-act qua the said two
appellants, although general and omnibus allegations have been
levelled qua them, nonetheless it is apparent from the evidence
on record that all the appellants shared a common intention to
commit a criminal act, as aforesaid and had in fact in
furtherance of their pre-mediated concert and common intention
given effect to the occurrence in question.
59. Though, we find that the appellants of the aforesaid three
appeals have been suffering the rigors of trial since the year
2005,i.e. for a substantially long period of about 20 years and
they are having a clean antecedent, however considering the
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principles laid down by the Hon’ble Apex Court to the effect
that with mere passage of time, the objects of deterrence as also
protection of society are not lost, there is no scope for leniency
on the question of sentencing. Moreover, the appellants have
now stood convicted for the offence of culpable homicide not
amounting to murder under Section 304 Part II of the I.P.C.,
though they were charged and had also been convicted by the
Ld. Trial Judge for the offence of murder under Section 302/34
of the I.P.C., hence we are of the view that no symbolic
punishment should be awarded, especially in view of the
principle of proportionality in prescribing liability according to
the culpability of each kind of criminal conduct, inasmuch as
showing of undue sympathy to impose inadequate sentence
would do more harm to the justice system, leading to
undermining the public confidence in the efficacy of law as also
would be resultantly counterproductive in the long run and
against societal interest which needs to be cared for and strengthened
by string of deterrence inbuilt in the sentencing system.
60. Thus, taking into account an overall perspective of the entire
case, as indicated hereinabove as also considering the principles of
sentencing laid down by the Hon’ble Apex Court, as aforesaid,
apart from the fact that we have already convicted
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the appellants under Section 304 Part II of the I.P.C., we deem it
fit and proper to sentence the appellants, for the altered
conviction, to undergo rigorous imprisonment for 5 years each.
61. The appellant no.1 of the first case, namely Budh Narayan
Jha and the appellant no.2 of the first case, namely Mritunjay Jha
have now stood convicted under Section 304 Part II of the IPC and
sentenced to undergo rigorous imprisonment for 5 years by the
instant judgment, however since they have already undergone
sentence of more than five years and are incustody, they are
directed to be released from jail forthwith unless required in any
other case.
62. As far as the appellant of the second case, namely Santosh
Jha @ Santosh Kumar Jha and the appellant of the third case,
namely Dheeraj Jha @ Dheeraj Kumar Jha are concerned, since
they have also now stood convicted under Section 304 Part II of
the IPC and sentenced to rigorous imprisonment for 5 years by the
instant judgment, the bail bonds of the said two appellants are
hereby cancelled and they are directed to surrender before the
learned Trial Court within a period of four weeks from today, for
being sent to jail for serving the remaining sentence.
63. Accordingly, the aforesaid three appeals bearing Criminal
Appeal (DB) No.150 of 2018, Criminal Appeal (DB) No. 85 of
Patna High Court CR. APP (DB) No.150 of 2018 dt.03-07-2025
87/87
2018 and Criminal Appeal (DB) No.107 of 2018 are partly
allowed to the extent indicated hereinabove.
(Mohit Kumar Shah, J)
I agree.
Shailendra Singh, J
( Shailendra Singh, J)
sonal/-
AFR/NAFR AFR CAV DATE 14.05.2025 Uploading Date 03.07.2025 Transmission Date 03.07.2025