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