Jharkhand High Court
Mrityunjay Tripathy vs The State Of Bihar (Now Jharkhand) on 25 June, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
2025:JHHC:16938-DB
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No.42 of 1998(R)
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[Against the judgment of conviction dated 27.01.1998 and order
of sentence dated 28.01.1998 passed by the learned 1st Addl.
Sessions Judge, East Singhbhum at Jamshedpur in Sessions
Trial No.83 of 1989]
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1. Mrityunjay Tripathy
2. Ambujakshya Tripathi
Both sons of Ram Chandra Tripathy
All residents of village-Nischitpur, P.S. Dumaria, District East
Singhbhum
.... .... Appellants
Versus
The State of Bihar (Now Jharkhand)
.... .... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellant s : Mr. Amit Kumar Das, Advocate
Mr. Sankalp Goswami, Advocate
For the State : Mr. Vishwanath Roy, Spl. P.P.
.....
C.A.V. on 12/06/2025 Pronounced on 25/06/2025
Per Sujit Narayan Prasad, J.
1. At the outset, it needs to refer herein that the appeal against the appellant no.1-Ram Chandra Tripathy (since dead), was abated, vide order dated 13.08.2024.
2. The instant appeal filed under Section 374 (2) of the Code of Criminal Procedure, 1973 is directed against the judgment of conviction dated 27.01.1998 and order of sentence dated 28.01.1998 passed by the learned 1st Addl. Sessions Judge, East Singhbhum at Jamshedpur in Sessions Trial No.83 of 1989, 2025:JHHC:16938-DB whereby and whereunder, the appellants have been convicted for the offence punishable under Sections 302 read with Section 34 of the Indian Penal Code and sentenced to undergo R.I. for life for the offence under section 302 of the Indian Penal Code and further, sentenced to undergo R.I. for one year for the offence punishable under Section 323 read with Section 34 of the Indian Penal Code. Both the sentences were directed to run concurrently.
Prosecution case
3. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per the fardbeyan of the deceased Purno Chandra Tripathi recorded by an A.S.I. of Dumaria P.S., which reads as under:
4. On 26.05.1978 in the morning, the informant-deceased had gone to his fields where he found that the accused Ram Chandra Tripathi (since dead) of Village Nichintpur ploughing the field, to whom, he asked not to plough the field. Upon this, the said accused along with the accused Bhawani Shankar Tripathi (died during pendency of trial), Mrityunjay Tripathi (appellant herein) and Ambujakshya Tripathi (appellant herein) assaulted him by means of sword and lathi.
5. At the time of assault, the informant's son namely Ashwini Kumar, Kumud Ranjan Panda and Ashwini Kumar Kar witnessed 2 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB the occurrence. The occurrence was said to be illegal ploughing of the informant's field by the accused persons. The fardbeyan was thumb-impressed by the informant-deceased after hearing its contents and finding them to be correct. The fardbeyan was also signed by the witnesses Ashwini Kumar Tripathi, Ramesh Chandar Gowala, Raj Kishore Mahapatra, Subodh Chandra Mahapatra and Tika Ram Mardi.
6. On the basis of fardbeyan, a formal Dumaria P.S. Case No.4/78 was instituted by the Police against all the accused persons and the investigation was carried out. After three days of said occurrence, the informant/deceased died during treatment at the hospital.
7. After completion of the investigation, charge-sheet under Section 302/34 of the IPC was submitted against all the accused persons.
8. Thereafter, the cognizance was taken and the case was committed to the court of Sessions for trial and disposal. In course thereof, the accused Bhawani Shankar Tripathi had died and his name was dropped from the record. After framing of charges, the accused persons pleaded not guilty and claimed to be tried.
9. In order to prove its case, prosecution examined altogether 11 witnesses, i.e., P.W.1-Raj Kishore Mahapatra, P.W.2-Ashwini Kar, P.W.3-Kumud Ranjan Panda, P.W.4-Subodh Mahapatra, P.W.5-Tika Ram Mardi, P.W.6-Ashwini Kumar Tripathi, P.W.7- 3 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Dr. R.K. Sharma, P.W.8-Dr. Suresh Chowdhary, P.W.9-Dr. Prithiviraj, P.W.10-M.S. Khan and P.W.11-Investigating Officer.
10. The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, accused persons had denied the prosecution evidence and claimed to be innocent.
11. The learned trial court, after perusal of record found the charge levelled against the accused/appellants proved. Accordingly, the accused/appellants have been found guilty, as such, convicted and sentenced vide impugned judgment of conviction dated 27.01.1998 and order of sentence dated 28.01.1998, which is the subject matter of instant appeal. Arguments of the learned counsel for the appellants
12. Mr. Amit Kumar Das, learned counsel for the appellants has taken the following grounds by assailing the impugned judgment of conviction and order of sentence: -
(i) It is a case where the conviction upon the surviving appellants, namely, Mrityunjay Tripathy and Ambujakshya Tripathi is fit to be set aside on the ground that there is contradiction in the testimony of eye witnesses.
(ii) It has been contended that P.W.6, who has been considered as an eye witness, if his testimony will be taken into consideration, the same is not in consonance with the testimony of the Doctor who has been examined as P.W.9.
4 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
(iii) The case is not of committing murder, rather, the incident took place all of a sudden, since, the accused were ploughing the field and they had been interrupted by the informant side which led to scuffle in between the parties and the appellant, namely, Bhawani Shankar Tripathi (dead) has assaulted with sword upon the deceased due to which he succumbed to injury.
(iv) The prosecution has also failed to establish the charge said to be proved beyond all reasonable doubts, since, no sword or any incriminating material by which the assault has been alleged to be there upon the deceased, had been recovered, hence, the culpability of the appellants has not been established by the prosecution.
(v) Learned counsel, in addition to the aforesaid grounds, has also taken alternative ground that even accepting the prosecution version to be true but it is not the case of attracting the ingredients of Section 302 IPC, rather, at best, the case would be under Section 304 Part II, exception no.(iv). Such submission has been made on the ground that the appellants were ploughing the field and when they interrupted by the informant's side, scuffle took place and in course thereof, the assault was there in which the deceased had died and P.W.6 has also sustained injury but the same cannot be said to be pre-meditation of mind, rather, the 5 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB occurrence is at the heat of the moment and hence, there is no ingredients of Section 302 IPC.
(vi) It has further been contended that there is no evidence in entire testimony of prosecution witnesses that there was premeditation among the appellants or the appellants having common intention had committed the alleged occurrence and as such applicability of Section 34 of the IPC is not available herein but the learned trial even in the absence of the ingredients of Section 34 has convicted the present appellants by the aid of Section 34 IPC, which is not sustainable in the eyes of law.
(vii) The learned counsel has further contended that as per the testimony of the witnesses there is specific culpability on the accused namely Bhawani Shankar Tripathi who had hit on the head of the deceased by means of sword which prove fatal for the deceased. Further the witnesses have categorically stated about the culpability is on Ram Chandra Tripathi (since dead) who had hit upon the head of the deceased by means of lathi. So far as the present appellants are concerned there is no specific attributably has been alleged against them.
13. Learned counsel for the appellants, on the aforesaid premise, has submitted that the impugned judgment of conviction/sentence suffers from patent illegality and hence, it is not sustainable in the eye of law.
6 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Arguments of the respondent-State
14. Per Contra, Mr. Vishwanath Roy, learned Spl. P.P. appearing for the respondent-State has vehemently opposed the aforesaid grounds by defending the impugned judgment by taking the following grounds: -
(I) The prosecution has fully established the accusation made against the appellants.
(II) If the testimony of P.W.6 will be read together with the testimony of P.W.8 and P.W.9, it would be evident that the prosecution has fully established the charge, since, these witnesses have substantiated the accusation made against the appellants, as recorded in the First Information Report.
(III) The testimony of the Doctor who has been examined as P.W.9 also establishes the accusation committed by the appellants.
(IV) The alternative argument, so far as it relates to attracting the ingredients of Section 304 Part II even if it is not being made out, since, all the persons who had assaulted the deceased and his family members, had come with pre-
meditation of mind to commit murder of the deceased, which is evident from their conduct, since, they had come out with the sword and lathi in their hand. The sword in Bhawani Shankar's (dead) hand itself is a substance to prove that pre-meditated mind was there to commit commission of crime of murder.
7 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
15. Learned A.P.P. for the State, based upon the aforesaid grounds, has submitted that it is therefore a case where the impugned judgment of conviction/sentence requires no interference.
Response of the learned counsel for the appellants
16. In response thereto, learned counsel for the appellants has submitted that the sword since has not been recovered and as such, it is incorrect on the part of the learned counsel for the State that the present appellants had come along with sword which itself substantiating the pre-meditation of mind which cannot be said to be acceptable.
17. Learned counsel for the appellants has further submitted that the occurrence is of the year, 1978, in which, the trial has been concluded sometime in the year, 1998. Analysis
18. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses as well as the other documents available in the trial court records.
Testimony of the witnesses
19. This Court, before going into the legality and propriety of the impugned judgment of conviction/sentence, deems it fit and proper to refer the testimonies of prosecution witnesses.
8 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
20. P.W.1, namely, Raj Kishore Mahapatra, has deposed in his testimony that in the year, 1978, he heard that Purno Chandra Tripathi-deceased had died and he went to Dumaria P.S. where he found him in an injured condition. He has further deposed that he came back after seeing the deceased.
In his cross-examination, he has deposed that he does not know how did the deceased get injured and he has further deposed that bleeding was oozing from the wound part of the head of the deceased. But he does not remember whether his clothes were blood-stained or not.
21. P.W.2, namely, Ashwini Kar, has made an oral testimony that on 26.05.1978 at about 7:00 to 8:00 a.m. that in the morning he was in his fields at village Mathibari and when he saw at a distance of 100 yards, all the three accused along with Bhawani Chandra Tripathi and 2-3 other persons were ploughing the field of the deceased Purno Chandra Tripathi. Thereafter, the deceased along with his sons came there and interfered in ploughing the field.
He has further stated that Bhawani Shankar had held a sword in his hand and the accused Ram Chandra, Mrityunjay and Ambujakshya were holding lathi in their hands. Firstly, Bhawani Shankar assaulted on the head of the deceased with the sword and the bleeding started from his head and then the accused Ram Chandra assaulted him with lathi. When the deceased's son, namely, Ashwini came to rescue his father, he 9 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB was also assaulted by the accused Ambujakshya and Mrityunjay by means of lathi. Upon this, Ashwini Kumar Tripathi fled to some distance and then all the four accused assaulted the deceased. After some time, Ashwini Kumar Tripathi came there along with Kumud Ranjan Panda and they with the held of this witness, lifted and carried the deceased to his house. Thereafter, the deceased had died in the Hospital after three days. He has further deposed that accused Bhawani Shankar Tripathi had died and he identified all the three accused standing in the dock.
22. P.W.3, namely, Kumud Ranjan Panda has deposed that about 12 years ago in the year, 1978 at about 7:30 a.m. to 8:00 a.m., he had gone to his field where he witnesses the occurrence in which all the three accused along with Bhawani Shankar Tripathi were getting the land of the deceased ploughed by others. The deceased and his son Ashwini Tripathi came there and protested to such ploughing of their land by the accused persons. Ram Chandra Tripathi assaulted on the head of the deceased by means of lathi and Bhawani Shankar assaulted on the head by means of sword. When Ashwini Tripathi tried to rescue his father (deceased), he was tried to be assaulted by the accused Ambujakshya Tripathi and Mrityunjay Tripathi, on which, he fled away. Thereafter, the deceased was assaulted by all the four accused, upon which, he fell down with bleeding. At that time, this witness and others arrived there and carried the deceased to his house. He has further deposed that Bhawani 10 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Shankar Tripathi had asked all others to kill the deceased. He has identified all the three accused standing in the dock.
23. P.W.4, namely, Sobodh Mahapatra has deposed that on 26.05.1978 at about 7:30 a.m., Khathia, son of Purna Tiwary called him to his house where he found the deceased having an injury in his head and bleeding was oozing from his mouth.
24. He has further deposed that the deceased made his declaration to him that the deceased had been assaulted by Bhawani Tripathi by means of sword and also assaulted by Ram Chandra Tripathi, Mrityunjay Tripathi and Ambuj Tripathi by means of lathi in his field. Thereafter, this witness and some other villagers carried the deceased to the Police Station where the deceased narrated his fardbeyan to the Police which was recorded by the Police and was read-over and explained to the deceased and thumb-impressed by the deceased after finding it correct.
He has further deposed that he, along with other witnesses, namely, Ramesh Gope, Tika Ram, Jitendra, Raj Kishore and Ashwini Tripathi put down their respective signatures on the fardbeyan as witnesses. His signature was marked as Exhibit/1. He has identified all the three accused in the dock.
25. P.W.5, namely, Tika Ram Mardi, is the tendered witness.
26. P.W.6, namely, Ashwini Kumar Tripathi (son of the deceased) is also an injured witness. He has made his oral 11 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB testimony that on 26.05.1978 at about 7-8 a.m. in the morning, he had gone to his land where Ram Chandra Tripathi and his three sons namely Bhawani Shankar Tripathi, Mritunjay Tripathi and Ambujakshya Tripathi were getting the land ploughed through their men, and upon his arrival, they fled away. He has further deposed that his father, (deceased) asked the accused persons as to why they were getting the land ploughed, at which, they started assaulting the deceased, first of all, Bhawani Shankar Tripathi on his head by means of sword and Ram Chandra Tripathi assaulted on his head by means of sword and Ram Chandra Tripathi also assaulted him on the head by means of lathi. When he tried to rescue the deceased, the accused Mrityunjay Tripathi and Ambujakshya Tripathi assaulted this witness with lathi and injured him on his head. Then all the four assailants further assaulted the deceased, at which, this witness shouted "Bachao - Bachao" (help - help). Thereafter, the witnesses Kumud Ranjan Panda and Ashwini Kar arrived there.
He has further deposed that Bhawani Shankar Tripathi had asked his father and brothers to kill the deceased, but all of them fled away. Thereafter, he brought the deceased home and therefrom, took him to Dumaria Police Station where the deceased narrated his Fardbayan to the Police who recorded the same, read-over and explained the same to the deceased and the later put down his thumb-impression thereon.
12 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB He has also deposed that he, Ramesh Chandra Gowala, Raj Kishore Mahapatra, Subodh Chandra Mahapatra and Tika Ram Mardi put down their signatures on the Fardbeyan as witnesses.
He has further deposed that the deceased was taken to Musaboni Hospital from where he was referred to the Government Hospital at Jamshedpur where the deceased died on 29.05.1978. He has identified his signature on the Fardbeyan as Ext. ¼. He has also deposed that the accused Bhawani Shankar Tripathi since has died and he has identified the three accused in the dock.
27. P.W.-7, namely, Dr. R.K. Sharma is the then Principal of MGM Medical College, Jamshedpur who has deposed that on 29.05.1978, when he was posted as Professor, Forensic Science, MGM Medical College, Jamshedpur, he conducted autopsy on the dead-body of the deceased and found six injuries on his body, out of which, two were stitched wounds on the front and middle of the scalp and four fractures on the frontal bones.
He has further deposed that since the wounds were stitched and had surgical interference; their edges were not very clear to indicate as to which weapon had they been caused.
He has further testified that the death was due to intra- cranial hemorrhage including the fracture of the skull bone and that the injury to the skull bone under injury no. 1 was sufficient in ordinary course of nature to cause death. He has proved the 13 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB carbon copy of the Post Mortem Report which had been prepared by him by carbon process along with its original which he proved to be in his hand writing and under his signature. The carbon copy of the Post Mortem Report was marked as Ext. 2.
During his cross-examination, he has deposed that he had found hemorrhage in the brain and the deceased had been treated at Government Hospital, Jamshedpur.
28. P.W.8, namely, Dr. Suresh Chowdhary is a Medical Officer posted in the M.G.M. Medical College, Jamshedpur who has testified that on 26.05.1978 at about 3.10 P.M., he had examined Ashwani Kumar Tripathi, S/o Purno Chandra Tripathi of village Hathibari, PS Dumaria and found an abrasion on his left fore-arm regarding which he opined that the same had been caused more than six hours ago and the same was simple in nature caused by a hard blunt substance such as a "Danda". He has proved the Injury Report as Ext. 3, in his own pen and under his signature.
29. P.W.-9, namely, Dr. Prithiviraj Singh is the In-charge Medical Officer of Musaboni Primary Health Centre. He has deposed that he has examined the deceased Purno Chandra Tripathi on 26.05.1978 at Musaboni Primary Health Centre. He has further deposed that he has found two cut injuries on the scalp of the deceased and complaint of pain in chest, head and back accompanied by hemaptesis.
14 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB He has further deposed that the first two injuries were caused by sharp cutting weapon such as a sword, whereas the third injury was caused by hard and blunt substance, such as lathi and the age of injury was approximately three hours since the time of examination.
He has also stated that at the time of the examination of the deceased, he had asked him that from which weapon injury had been caused. Upon which, he had told him that he was assaulted by means of sword and lathi. He has proved the Injury Report to be in his own pen and bearing his signature, which has been marked as Ext. 4. He has further proved another Injury Report being in the hand-writing and under the signature of Dr. Mahesh Chandra Thakur, First Medical Officer, Musaboni State Dispensary, which was marked as Ext. 4/1. He has also stated that the said Dr. Thakur has been transferred long back from Musaboni and his present place of posting is not known.
30. P.W.-10, namely, M.S. Khan is a formal witness who has formally proved the Fardbeyan as Ext. 5 and the formal FIR as Ext. 6 both being in the hand-writing and under the signature of Nand Lal Pandey, the then A.S.I. of Dumaria P.S.
31. P.W.11 is the Police Officer who was posted as Officer In- charge of Dumaria P.S. on 26.05.1978. He has testified that on the said date, i.e., on 26.05.1978, he was absent from the Police Station and in his place, A.S.I. Nand Lal Pandey was the Officer In charge who recorded Fardbeyan of the deceased Purna 15 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Chandra Tripathi and on that basis, instituted Dumaria P.S. Case No.4 dated 26.05.1978. He has also deposed that he took over charge of the investigation of the case on 05.06.1978 and during his investigation, arrested the accused Mrityunjay Tripathi, obtained the Post mortem Report and the Injury Reports and also recorded the statements of several witnesses. He has also testified that, upon completion of the investigation and receiving instructions from the superior officials, he had submitted charge- sheet under Section 302/34 IPC against the accused persons. Reference of the Law Point
32. This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II of the Indian Penal Code.
33. In the case of Nankaunoo v. State of Uttar Pradesh reported in [(2016) 3 SCC 317] it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or 16 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB murder, for ready reference paragraph 11 is being quoted and referred hereunder as :-
"11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] ,para 12, this Court held as under: (SCC p. 41) "12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7) „ 7. ... These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.‟ The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is
17 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The „intention‟ and „knowledge‟ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words „intention‟ and „knowledge‟ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to "knowledge‟, "intention‟ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.".
34. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Hon'ble Apex Court, while clarifying the distinction between section 299 and 300 of the Indian Penal Code and their consequences, held as under: --
"12. In the scheme of the Penal Code, "culpable homicide"
is genus and "murder" is species. All "murder" is "culpable homicide‟ but not vice-versa. Speaking generally, "culpable homicide not amounting to murder. For the 18 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called 'culpable homicide of the first degree'. This is the greatest form of culpable homicide, which is defined in Section 300 as 'murder'. The second may be termed as 'culpable homicide of the second degree'. This is punishable under the first part of Section 304. Then, there is 'culpable homicide of the third degree'. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304"
35. Recently, the Hon'ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police, reported in 2023 SCC OnLine SC 857 which are being quoted as under:
"66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:-- (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. --- (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder,
19 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is "guilty intention", whereas the second part would apply when there is no such intention, but there is "guilty knowledge". (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression "sufficient in the ordinary course of nature to cause death" but is of a lower degree of likelihood which is generally spoken of as an injury "likely to cause death‟ and the case does not fall under 20 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word "likely" means probably and it is distinguished from more "possibly". When chances of happening are even or greater than its not happening, we may say that the thing will „probably happen‟. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable 21 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mensrea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
22 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."
36. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues: -
(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or
(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? Or
(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or
(iv) Whether the appellant is entitled for acquittal in absence of cogent evidences?
23 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
37. Since, all the aforesaid issues are inextricably interlinked, therefore, the same are being discussed and decided hereinbelow together.
38. As we discussed, Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death, ―intent and ―knowledge as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mensrea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.
39. If the offence which is covered by one the clauses enumerated above, would be liable to be convicted under Section 304 IPC. If the offence is such that which is covered by clause (a) or (b) mentioned above i.e. Section 299 IPC, the offender would be liable to be convicted under part I IPC 24 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB as it uses the expression that death is caused with the intention of causing death or of causing such bodily injury as is likely to cause death, where intention is dominant factor. However, if the offence is such which is covered by clause (c) mentioned above, the offender would be liable to be convicted under Section 304-part II IPC because of the use of the expression ―if the act is done with the knowledge that is likely to cause death but without any intention to cause death or to cause bodily injury as is likely to cause death where knowledge is a dominant factor.
40. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj vs. State of Tamil Nadu, reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as:-
"32. For this purpose we have to go to Section 299 which defines "culpable homicide". This offence consists in the doing of an act (a) with the intention of causing death, or
(b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the act is likely to cause death.
33. As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] "intent"
and "knowledge" in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mensrea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his 25 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person."
41. Thus, while defining the offence of culpable homicide and murder, the framers of the Indian Penal Code laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be.
42. The framers of the Indian Penal Code designedly used the two words intention and knowledge, and it must be taken into consideration that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he ―must have been aware that certain specified harmful consequences would or could follow.
43. In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death.
26 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
44. The Hon'ble Apex Court, in Keshub Mahindra vs. State of M.P. reported in (1996) 6 SCC 129 has pleased to hold as under paragraph 20 which reads hereunder as :-
"20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section.304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that:
"Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death.... .... ....."
27 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
45. Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or, secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder, which are as follows:-
(a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won't amount to murder subject to proviso as provided.
28 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person
(d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender' having taken undue advantage or acted in a cruel or unusual manner.
(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
46. All these exceptions mentioned above shall come under the purview of Section 304 IPC and will be termed as culpable homicide not amounting to murder.
47. It is, thus, evident that the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside purview of exception carved out under Section 300 of the Indian Penal Code.
48. Further, since the learned trial court by taking aid of the Section 34 of the IPC has convicted the present appellants for the alleged offence, therefore at this juncture it would be apt to discuss the ingredients of Section 34 of the IPC.
29 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
49. It needs to refer herein that under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
50. Thus, from the aforesaid settled position of law it is evident that Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime.
51. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or 30 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime.
52. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
53. Further, the burden lies on the prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention of all at a prior concert. However, it is not required for the prosecution to establish that there was a prior conspiracy or premeditation; common intention can be found in the course of occurrence.
54. To apply Section 34 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 31 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB 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 is absent, Section 34 cannot be invoked reference in this regard may be taken from the judgment rendered by the Hon'ble Apex Court in the case of Jai Bhagwan vs. State of Haryana, (1999) 3 SCC 102.
55. As held by the Constitution Bench of the Hon'ble Apex Court in Mohan Singh vs. State of Punjab, AIR 1963 SC 174, common intention denotes action in concert, and a prior meeting of minds--the acts may be different, and may vary in their character, but they are all actuated by the same common intention. However, prior concert in the sense of a distinct previous plan is not necessary to be proved. The common intention to bring about a particular result may well develop on the spot as between a number of persons. Thus, the question as to whether there is any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused persons had the common intention to commit the offence with which they could be convicted 32 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
56. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether the culpability against the appellants in the instant case is are made out under Section 302 or Section 304 Part-I or II read with Section 34 of the Indian Penal Code by appreciating the evidences.
57. At this juncture it would be purposeful to reiterate the testimony of prosecution witnesses in order to answer the issues as referred in the preceding paragraphs.
58. P.W.2 has stated that Bhawani Shankar had held a sword in his hand and the accused Ram Chandra, Mrityunjay and Ambujakshya were holding lathi in their hands. Firstly, Bhawani Shankar assaulted on the head of the deceased with the sword and the bleeding started from his head and then the accused Ram Chandra assaulted him with lathi. When the deceased's son, namely, Ashwini came to rescue his father, he was also assaulted by the accused Ambujakshya and Mrityunjay by means of lathi. Upon this, Ashwini Kumar Tripathi fled to some distance and then all the four accused assaulted the deceased.
59. P.W.3 had deposed that Ram Chandra Tripathi assaulted on the head of the deceased by means of lathi and Bhawani Shankar assaulted on the head by means of sword. When Ashwini Tripathi tried to rescue his father (deceased), he was 33 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB tried to be assaulted by the accused Ambujakshya Tripathi and Mrityunjay Tripathi, on which, he fled away. Thereafter, the deceased was assaulted by all the four accused, upon which, he fell down with bleeding.
60. P.W.4 has deposed that the deceased made his declaration to him that the deceased had been assaulted by Bhawani Tripathi by means of sword and also assaulted by Ram Chandra Tripathi, Mrityunjay Tripathi and Ambuj Tripathi by means of lathi in his field. Thereafter, this witness and some other villagers carried the deceased to the Police Station where the deceased narrated his fardbeyan to the Police which was recorded by the Police and was read-over and explained to the deceased and thumb-impressed by the deceased after finding it correct.
61. P.W.6, namely, Ashwini Kumar Tripathi is the son of the deceased and is also an injured witness. He has made his oral testimony that on 26.05.1978 at about 7-8 a.m. in the morning, he had gone to his land where Ram Chandra Tripathi and his three sons namely Bhawani Shankar Tripathi, Mritunjay Tripathi and Ambujakshya Tripathi were getting the land ploughed through their men, and upon his arrival, they fled away. He has further deposed that his father, (deceased) asked the accused persons as to why they were getting the land ploughed, at which, they started assaulting the deceased, first of all, Bhawani Shankar Tripathi on his head 34 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB by means of sword and Ram Chandra Tripathi assaulted on his head by means of sword and Ram Chandra Tripathi also assaulted him on the head by means of lathi. When he tried to rescue the deceased, the accused Mrityunjay Tripathi and Ambujakshya Tripathi assaulted this witness with lathi and injured him on his head. Then all the four assailants further assaulted the deceased, at which, this witness shouted "Bachao - Bachao" (help - help). He has further deposed that Bhawani Shankar Tripathi had asked his father and brothers to kill the deceased, but all of them fled away.
62. P.W.7 the doctor who had conducted post-mortem on the dead body of the deceased has deposed that since the wounds were stitched and had surgical interference; their edges were not very clear to indicate as to which weapon had they been caused.
He has further testified that the death was due to intra-cranial hemorrhage including the fracture of the skull bone and that the injury to the skull bone under injury no. 1 was sufficient in ordinary course of nature to cause death.
63. P.W.8, is a Medical Officer posted in the M.G.M. Medical College, Jamshedpur who has testified that on 26.05.1978 at about 3.10 P.M., he had examined Ashwani Kumar Tripathi, (son of deceased informant) and found an abrasion on his left fore-arm regarding which he opined that the same had been 35 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB caused more than six hours ago and the same was simple in nature caused by a hard blunt substance such as a "Danda".
64. P.W.-9, is the in-charge Medical Officer of Musaboni Primary Health Centre. He has deposed that he has examined the deceased Purno Chandra Tripathi on 26.05.1978 at Musaboni Primary Health Centre. He has further deposed that he has found cut injuries on the scalp of the deceased and complaint of pain in chest, head and back accompanied by hemaptesis.
He has further deposed that the first two injuries were caused by sharp cutting weapon such as a sword, whereas the third injury was caused by hard and blunt substance, such as lathi and the age of injury was approximately three hours since the time of examination. He, has also stated that at the time of the examination of the deceased, he had asked him that from which weapon injury had been caused. Upon which, he had told him that he was assaulted by means of sword and lathi.
65. Thus, from the perusal of the testimony of the prosecution witnesses it is apparent that it is the case of homicidal death and the alleged occurrence was witnessed by the eyewitnesses like P.W.2, P.W.3, and P.W.6. it is further evident from record that the fardbayan has been fully substantiated by the deposition of aforesaid eyewitness and there is no any major contradiction inter-se in their 36 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB testimonies and all these eyewitnesses had stated almost on the similar line.
66. Thus, from the aforesaid testimonies the common fact has emerged that Bhawani Shankar had held a sword in his hand and the accused Ram Chandra, Mrityunjay and Ambujakshya were holding lathi in their hands. Firstly, Bhawani Shankar assaulted on the head of the deceased with the sword and the bleeding started from the head of the deceased and then the accused Ram Chandra assaulted him with lathi. When the deceased son, namely, Ashwini came to rescue his father, he was also assaulted by the accused Ambujakshya and Mrityunjay by means of lathi.
67. Thus, from the aforesaid testimonies it is evident that all the witnesses had commonly testified that Bhawani Shankar (since dead) assaulted on the head of the deceased by sword and thereafter the accused Ram Chandra (since dead) assaulted him with lathi. But so far, the culpability of the present appellants is concerned no witnesses had stated that these appellants assaulted the deceased on his vital part of the body like head.
68. Further it is evident from the testimony of P.W.9 Dr. Prithiviraj Singh the in-charge Medical Officer of Musaboni Primary Health Centre has deposed that he has examined the deceased Purno Chandra Tripathi on 26.05.1978 at 37 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB Musaboni Primary Health Centre and he had found cut injuries on the scalp of the deceased.
69. He has further deposed that the first two injuries were caused by sharp cutting weapon such as a sword, whereas the third injury was caused by hard and blunt substance, such as lathi. Thus, from the testimonies of other witnesses had fully been substantiated by the testimony of this witness.
70. Further the P.W.7 the doctor who had conducted post- mortem on the dead body of the deceased has opined that the death was due to intra-cranial hemorrhage including the fracture of the skull bone and that the injury to the skull bone under injury no. 1 was sufficient in ordinary course of nature to cause death.
71. Thus, from the aforesaid it is evident that the fatal blow which cause death of deceased was made by the Bhawani Shankar (since dead) who had assaulted on the head of the deceased by sword.
72. Since the learned trial court by the aid of section 34 IPC has convicted all the accused persons including the present appellant therefore, the question arises herein that whether there is sufficient evidence available on record that the accused and present appellants having common intention or having premeditation in the alleged commission murder of the deceased.
38 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
73. In the aforesaid context this Court has revisited the entire testimony including the material available on record wherefrom it is evident that none of the witnesses had stated in their examination-in-chief that the accused persons including the present appellant having common intention to kill the deceased. Therefore, in the aforesaid settled position of law as discussed in preceding paragraph this Court is of the view that accused persons including the presents appellants having no common intention or premeditation of mind before the commission of alleged crime.
74. It needs to refer herein that the Hon'ble Apex Court in catena of decision has propounded the proposition that in the criminal trial, there cannot be any conviction if the charge is not being proved beyond all reasonable doubts, as has been held in the case of Rang Bahadur Singh & Ors. Vrs. State of U.P., reported in (2000) 3 SCC 454, wherein, at paragraph-22, it has been held as under:-
"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time- tested rule that acquittal of a guilty person should 39 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."
75. Likewise, the Hon'ble Apex Court in the case of Krishnegowda & Ors. Vrs. State of Karnataka, reported in (2017) 13 SCC 98, has held at paragraph-26 as under:-
"26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the 40 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB accused is presumed to be innocent until his guilt is proved beyond reasonable doubt."
76. Further, the principle of 'benefit of doubt' belongs exclusively to criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be invoked when there is reasonable doubt regarding the guilt of the accused, reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of State of Haryana Vrs. Bhagirath & Ors., reported in (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under: -
"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution".
Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable 41 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."
77. Likewise, the Hon'ble Apex Court in the case of Krishnegowda v. State of Karnataka (Supra) at paragraph32 and 33 has held as under:-
"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.
42 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- ----"
78. It needs to refer herein that The Hon'ble Apex Court, in the case of Allarakha K. Mansuri v. State of Gujarat, reported in (2002) 3 SCC 57 has laid down the principle that the golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted, for reference, paragraph 6 thereof requires to be referred herein which reads hereunder as :-
"6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. --"
79. It needs to refer herein before laying down the aforesaid view, the Hon'ble Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 has already laid down the same view at 43 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB paragraph 163 which is required to be referred which read hereunder as "163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.
--- ---- ---"
80. At this juncture it would be apt to refer herein that since the presence of the injured prosecution witness P.W.6 namely, Ashwini Kumar Tripathi (son of the deceased) at the place of occurrence is not doubtful and P.W.6 in his testimony had categorically stated that in the morning, he had gone to his land where Ram Chandra Tripathi and his three sons namely Bhawani Shankar Tripathi, Mritunjay Tripathi and Ambujakshya Tripathi were getting the land ploughed through their men, and upon his arrival, they fled away.
81. He has further deposed that his father, (deceased) asked the accused persons as to why they were getting the land ploughed, at which, they started assaulting the deceased, first of all, Bhawani Shankar Tripathi assaulted on head of the deceased by means of sword and Ram Chandra Tripathi also assaulted him on the head by means of lathi. When he tried to rescue the deceased, the accused Mrityunjay Tripathi and Ambujakshya Tripathi assaulted this witness with lathi and injured him on his head. Then all the four assailants further assaulted the deceased, at which, this witness shouted 44 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB "Bachao - Bachao" (help - help). He has further deposed that Bhawani Shankar Tripathi had asked his father and brothers to kill the deceased, but all of them fled away.
82. Since P.W.6 is the injured witness therefore, the veracity of his testimony is fit to be acceptable and further his testimony has been corroborated by other witnesses on the point that Bhawani Shankar Tripathi had assaulted on the head of deceased/informant by means of sword and Ram Chandra Tripathi also assaulted him on the head by means of lathi and about the role of the present appellants it has been stated that after assault as made by Bhawani Shankar Tripathi on head of the deceased by means of sword and Ram Chandra Tripathi by lathi thereafter, all the four assailants further assaulted the deceased. Since this Court has already held that ingredients of Section 34 IPC are not available in the instant case and further there is no specific attributably of the present appellants has surfaced during the testimony of the witnesses, therefore, it is the considered view of this Court that the appellants are guilty under section 304 part -II.
83. Further P.W.6 had stated that when he tried to rescue the deceased, the accused Mrityunjay Tripathi and Ambujakshya Tripathi (present appellant herein) assaulted him with lathi and injured him on his head. It has come on the record that this witness had sustained simple injury as per the doctor who had examined him, therefore the present appellants are 45 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB rightly convicted by the learned trial court for the offence of simple hurt, punishable under Section 323 IPC.
84. Thus, on evaluation of the testimony of the witnesses and the evidence we hold the appellants guilty under 304 Part II of the I.P.C.
85. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds appellants guilty for the offence under Section 304 Part II I.P.C. and sentence them for the period already undergone by them.
86. The learned trial Court had sentenced the appellants for one year for the offence punishable under Section 323 IPC, but this Court while taking in to consideration the rigor of trial as faced by the appellant since 1978, is of the view that the appellants hereby sentenced for the period already undergone by them for the offence under Section 323 IPC. Accordingly sentence as inflicted by the trial court for the offence of simple hurt is hereby modified as stated hereinabove.
87. Consequently, the judgment passed by the court below is modified and this Court, hereby, finds appellants guilty for the offence under Section 304 Part II I.P.C. and sentence them for the period already undergone by them.
88. Since from the record, it is evident that appellants are on bail, therefore, they are discharged from the liability of their bail bonds.
46 Cr. Appeal (DB) No.42 of 1998(R) 2025:JHHC:16938-DB
89. Accordingly, the judgment of conviction dated 27.01.1998 and order of sentence dated 28.01.1998 passed by the learned 1st Addl. Sessions Judge, East Singhbhum at Jamshedpur in Sessions Trial No.83 of 1989, are modified to the extent as discussed above and the appellants are sentenced for the period as stated hereinabove.
90. The appeal is hereby dismissed with the modification of the judgment of conviction and order of sentence to the extent as indicated above.
91. With the aforesaid observations/directions, the instant appeal stands dismissed.
92. Let this order/judgment be communicated forthwith to the Court concerned along with the Trial Court Records.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 25th June, 2025.
Rohit/-A.F.R.
47 Cr. Appeal (DB) No.42 of 1998(R)