Jharkhand High Court
Matheus Tudu vs The State Jharkhand on 31 October, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
-----
Cr. Appeal (DB) No.539 of 2013
------
[Against the judgment of conviction dated 05.06.2013 and order
of sentence dated 12.06.2013 passed by the learned District &
Additional Sessions Judge-II, Dumka in Sessions Trial Case
No.238 of 2009]
------
Matheus Tudu, S/o Chati Tudu @ Samual Tudu
.... .... Appellant
Versus
The State Jharkhand .... .... Respondent/Opp. Party
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
.....
For the Appellant : Mr. Peeyush Krishna Choudhary, Adv.
: Mr. Aishwarya Prakash, Advocate
For the State : Mr. Bhola Nath Ojha, A.P.P.
.....
C.A.V. on 21/09/2023 Pronounced on 31/10/2023
Per Sujit Narayan Prasad, J.:
1. The instant appeal, filed under Sections 374 (2) of the Code of
Criminal Procedure, is directed against the judgment of conviction
dated 05.06.2013 and order of sentence dated 12.06.2013 passed by
the learned District & Additional Sessions Judge-II, Dumka in Sessions
Case No.238 of 2009, whereby and whereunder, the appellant has
been convicted for the offence punishable under Section 302 of the
Indian Penal Code and sentenced to undergo rigorous imprisonment
for life for the offence under Section 302 of the Indian Penal Code.
2. This Court, before proceeding to examine the legality and
propriety of the judgment of conviction and order of sentence, deems it
-2- Cr. Appeal (DB) No.539/2013
fit and proper to refer the background of prosecution case, as per
written report of informant, which reads as under:
3. As per the written report of the informant namely Binod
Hembrom P.W.11 who is the elder brother of the deceased Santosh
Hembrom that the deceased had fallen in love with Chunai Hansda for
last one year. The brother of the informant, namely, Santosh Hembrom
(deceased) wants to marry with her. His family members were agreed
for the marriage, but they suggested that recently, they have spent a
lot of money in "Sharadh" (Death rituals) of grandmother, hence,
requested him to wait for some time. It is further stated that the
accused Matheus Tudu had also fallen in love with same girl namely-
Chunai Hansda.
4. It is alleged that about 10 days ago of the occurrence, some
altercation had taken place in between Matheus Tudu, the appellant
herein and the deceased. In the evening of 29.05.2009 at about 7
p.m., the deceased went to the house of Sunil but he did not return in
night.
5. In the next morning, the informant along with others started
searching of his brother and they were going towards village-
Bhulkumrarh and they reached near Canal of Tobadadi, then they saw
the cycle of the deceased in a field. They also saw that one dead
body was lying in the canal and big stone was put on the back of the
body. The body was identified by them as the body of deceased
Santosh Hembrom. They also saw blood stain in huge quantity and
mark of dragging the dead body to the canal. They requested to
Chowkidar of the village to inform the local police. They also enquired
-3- Cr. Appeal (DB) No.539/2013
with Sunil. He informed them that at about 9:00 p.m., the deceased
went from his house. After sometime, police came there and took the
dead body from the canal. They also saw some injury marks on the
dead body.
6. On the basis of written report of the informant, Raneshwar P.S.
Case No.40/09 dated 30.05.2009 was registered against the sole
accused person under Section 302/34 of the IPC and investigation
was started.
7. After completion of investigation, the Investigating Officer
submitted charge-sheet against the accused person, namely, Matheus
Tudu under Section 302 of the Indian Penal Code and the accused
was sent up for trial.
8. Thereafter, the cognizance of the offence was taken against the
sole accused person and the case was committed to the Court of
Sessions. The charge was framed against the accused person, who
had pleaded not guilty and claimed to be tried.
9. In course of trial, the prosecution has examined altogether 15
witnesses, i.e., P.W.1-Haridhan Hembrom, P.W.2-Dr. C.P. Sinha,
P.W.3-Chunai Hansda, P.W.4-Sundri Hansda, P.W.5-Kalam
Hembrom, P.W.6-Jay Dhan Hembrom, P.W.7-Muniram Hansda,
P.W.8-Didi Muni Hansda, P.W.9-Sarangi Murmu, P.W.10-Bibhuti
Kisku, P.W.11-Binod Hembrom, P.W.12-Ranjit Hembrom, P.W.13-
Babudhan Hembrom, P.W.14-Sunil Hembrom and P.W.15-
Satendra Narayan Singh.
10. The statement of the accused was recorded under Section 313
of the Criminal Procedure Code, in which, he has denied from the
-4- Cr. Appeal (DB) No.539/2013
prosecution evidence and claimed himself to be innocent and claimed
to be tried.
11. Accordingly, the trial court after considering the material
available on record and the testimonies of the witnesses found the
appellant/accused guilty for the offence under section 302 of I.P.C and
as such, convicted and sentenced vide impugned judgment of
conviction dated 05.06.2013 and order of sentence dated 12.06.2013,
which is the subject matter of instant appeal.
12. The aforesaid judgment of conviction and order of sentence is
under consideration before this Court:
"as to whether the trial Court, while convicting the accused
person, has committed any illegality or not?"
13. Mr. Peeyush Krishna Choudhary, learned counsel for the
appellant has submitted that the impugned judgment of conviction and
order of sentence suffers from infirmity on the following grounds:
(I). The prosecution has miserably failed to establish the charge said
to have been proved beyond all reasonable doubts, since, the
testimony of P.W.3, namely, Chunai Hansda has been made the basis
of conviction along with the testimony of P.W.6. But, the learned trial
Court, while convicting the appellant based upon the testimony of
these two witnesses, has not been taken into consideration the opinion
of the Doctor that the death can also be caused by falling down.
It has been submitted by referring to the testimony of P.W.3 who
has deposed that after having been assaulted by the appellant with
danda, the deceased fell down near the canal and hence, the opinion
of the Doctor is very much relevant in the context that the reason of
-5- Cr. Appeal (DB) No.539/2013
death may also be on the basis of the injury sustained after falling
down near the canal, hence, it cannot be said that it is a case of
committing murder in order to attract the ingredients of Section 302 of
the Indian Penal Code.
(II). The learned trial Court has also not appreciated that there was
previous enmity in between the appellant and the deceased on
account of love affairs with P.W.3, namely, Chunai Hansda, as has
come in the testimony of P.W.9 (mother of the deceased), hence,
there is every likelihood of false implication of the appellant.
14. Learned counsel for the appellant, on the aforesaid premise, has
submitted that the impugned judgment needs to be interfered with.
15. Per Contra, Mr. Bhola Nath Ojha, learned Addl. Public
Prosecutor appearing for the respondent-State has taken the following
grounds in defending the impugned judgment of conviction/sentence:-
(i). The conviction is based upon the eye witness, i.e., P.W.3
who has witnessed the entire commission of crime.
It has been deposed by P.W.3 that the appellant assaulted the
deceased by danda twice, due to which, he fell down near the canal
and thereafter, both of them, i.e., P.W.3 and the appellant had fled
away from the place of occurrence.
(ii). The testimony of P.W.3 has also been supported by the
testimony of P.W.11, the informant, the brother of the deceased, who
has supported the prosecution version by corroborating the testimony
of P.W.3.
-6- Cr. Appeal (DB) No.539/2013
(iii). The Investigating Officer has also corroborated the
prosecution version by collecting the material in course of
investigation.
(iv). It has been submitted by referring to the testimony of the
Investigating Officer that the dead body was found from the canal, over
which stone was kept, hence, the same clarifies that the murder of the
deceased was caused intentionally and as such, it is the case of
commission of murder attracting the ingredients of Section 302 of the
Indian Penal Code with obvious reason of triangular love.
16. Learned A.P.P., based upon the aforesaid submission, has
submitted that the learned trial Court after taking into consideration the
testimony of the prosecution witnesses more particularly the eye
witness, i.e., P.W.3 corroborated by P.W.6 and the Investigating
Officer, since, has passed the impugned judgment of conviction,
therefore, the same requires no interference.
17. We have heard learned counsel for the parties, perused the
material available on record more particularly the testimony of the
witnesses and the finding recorded by learned trial Court.
18. This Court, before going into the legality and propriety of the
impugned judgment of conviction/sentence, deems it fit and proper to
refer the testimony of prosecution witnesses.
19. P.W.1-Haridhan Hembrom is the seizure list witness. He has
stated in his examination-in-chief that on 29/05/2009 at about 7 p.m.,
Santosh (deceased) went from his house and thereafter, he did not
return. In the next morning at about 8 a.m., they saw the dead body of
Santosh near canal. After sometime, police came there and took the
-7- Cr. Appeal (DB) No.539/2013
dead body from the canal. Police also recovered two pieces of
bangles, one danda, lady's sandal and blood stain soil. Police seized
the above items and prepared the seizure-list. He identified his
signature on his seizure list, which is marked as Exhbt.1.
20. Further, he has stated that for the last two years, love affairs
were going on between Santosh and Chunai. Meantime, accused
Matheus Tudu fell in love with Chunai Hansda and some altercation
had taken place in between them about 10 days ago from the
occurrence.
21. He stated in his cross-examination that police recorded his
statement on the same day. Further, he stated that actually Chunai
wanted to marry with Santosh, but the family members of the Santosh
were not agreed. He also stated that he cannot say about the colour of
the sandle but the said sandal was of right leg. He cannot say the
number of aforesaid sleeper.
22. P.W.2-Dr. C.P.Sinha, stated in his examination-in-chief that on
30.05.2009, he was posted as Medical Officer in Sadar Hospital,
Dumka. On that day, at about 4.10 p.m., he had conducted the
postmortem examination on the dead body of Santosh Hansda and
followings ante-mortem injuries were found:-
i. Abrasion 1"X1\2" over right eye-brow
ii. Lacerated wound 1/2" X 1/2" X muscle deep over back of
head in the middle.
iii. Lacerated wound 1" X1/2" X bone deep over parietal region
of scull above left ear.
-8- Cr. Appeal (DB) No.539/2013
23. On dissection of the head, under lying parietal bone found
fractured. On further dissection, brain and meninges found lacerated
and collection of blood found middle cranium. He has stated that death
was due to hemorrhage and shock as a result of injury no.(iii).
24. All the injuries caused by hard and blunt substance, time
elapsed since death within 24 hours. He identified the postmortem
report in his pen and signature which is marked as Exhibit/2.
25. In his cross-examination he stated that all the injuries were found
on the body of deceased caused possibly by fall on hard and surface.
26. P.W.3-Chunai Hansda claimed herself to be the eyewitness of
the alleged crime. She stated in her examination-in-chief that the
occurrence had taken place about 5 months ago, it was night. The
occurrence had taken place at side of the canal. She was present
there along with Matheus Tudu (appellant), by that time, Santosh went
to his house. Actually, for last one year, there was love affair with
Santosh but after break up, she started doing love with Matheus Tudu
(the appellant). Santosh (deceased) stole her cloths from her house
and was taking away the same. Then Matheus Tudu enquired with
Santosh about the cloths at the side of canal, thereafter, some
altercation had taken place. She deposed that Santosh (deceased)
was armed with Pistol and Matheus (appellant) armed with danda and
Matheus had given 2/3 danda blow upon the head of the Santosh.
Santosh died on spot. Thereafter, both fled away from there.
27. Further, she stated in the cross-examination that she was in love
with Matheus for last three years. At para-9 she deposed that she had
-9- Cr. Appeal (DB) No.539/2013
not seen the deceased taking away her cloth and sandal from her
house.
28. She admitted that after break up love affairs with Santosh, she
started to love with Matheus. She had physical relation with Matheus
(the appellant). Her father was living outside of the village in
connection with livelihood, but he knew about her affairs. Further, she
clearly admitted in para-14 of her cross- examination that at the time
murder of Santosh, she was present there.
29. P.W.4-Sundri Hansda stated in her examination-in-chief that the
occurrence had taken place about 7 months ago. She deposed that at
about 7 p.m. when she was present in her house, Santosh came there
and consumed liquor, thereafter, went somewhere. Next day, she
heard that the dead body of Santosh was lying near the canal.
30. She stated that she knew Matheus and Chunai and in her cross-
examination she deposed that the Police had enquired with her and
she clearly admitted that she had not seen the occurrence by her own
eyes.
31. P.W.5-Kalam Hembrom, father of the deceased, stated in his
examination-in-chief that the occurrence has taken place about one
year ago. He knew Chunai Handa. Actually, he sent his son Santosh
to bring labour, but he did not return by next morning, then he sent his
son, namely, BInod Hembrom, in search of Santosh. While he was
going, he saw the cycle of the deceased lying in the field. After some
distance, he had found sleeper of the deceased and further found the
dead body of Santosh in canal. The Police came there and took away
the dead body of Santosh., He further deposed that One Sundri and
- 10 - Cr. Appeal (DB) No.539/2013
Didi Muni were working in his house and they informed him that
Matheus had killed Santosh. He further deposed that Santosh used to
love Chunai (P.W.3) and Matheus also loved Chunai. He further
deposed that P.W.3 had told in police station that Matheus killed
Santosh because she loved Santosh.
32. They also informed that accused had killed Santosh. He further
stated in his cross-examination that Police recorded his statement on
next morning of the occurrence. He testified that love affairs in
between Santosh and Chunai were going on for last two years and
Santosh wanted to marry with her. He also stated prior to this
occurrence, the quarrel had taken place in between Santosh and
Matheus for the girl, but he could not say the date and day of that
quarrel.
33. P.W.6-Jay Dhan Hembrom, stated in his examination-in-chief
that the occurrence had taken place on 29.05.2009, actually, his
brother Santosh went to village-Bhulkumarh at about 7 pm to bring
labour from there, but he did not return in the night. In the next
morning, he, as per direction of his father, along with his brother Vinod
and other boys went to search of Santosh. When they reached near
canal, they saw the cycle of the Santosh lying in the paddy field.
34. Subsequently, they saw the dead body of the Santosh.
Thereafter, Police came there and prepared paper of the dead body
and also seized soil, bangle and danda etc. after making seizure-list.
He identified his signature, which is marked as Exhbt.1/1.
35. Further, he stated in his cross-examination that he had not seen
the occurrence by his own eyes. Police had seized the blood stain soil,
- 11 - Cr. Appeal (DB) No.539/2013
bangles and danda in front of him. After preparing some paper and he
put his signature only on paper. Further, he deposed that seized
articles were not produced before the court.
36. P.W.7-Muniram Hansda and P.W.8-Didi Muni Hansda have
been declared hostile at the instance of prosecution.
37. P.W.9-Sarangi Murmu, the mother of the deceased stated in
her cross-examination that Santosh was her son. The occurrence had
taken place one year ago when he went to village-Mulkorha to bring
labour, but he did not return in the evening. Thereafter, she sent her
another son Binod to search him. Vinod saw the cycle of Santosh in
the field and further saw the dead body of the Santosh in another
place. She also stated that she knew the accused who was friend of
the deceased. Both the boys had fallen in love with the same girl and
due to that, some altercation had taken in between them. Further, she
stated in her cross-examination that her son was in love for the last
two years and she had raised no objection.
38. P.W.10-Bibhuti Kisku has stated in his examination-in-chief that
the deceased was his nephew. His dead body was recovered from
canal. Thereafter, Police came there and prepared inquest report and
he put his signature on that paper. He identified his signature on the
Inquest report, which is marked as Exhibit/3. Further, he stated in his
cross-examination that as per direction of the police he put his
signature. Police had enquired with him what was written in the paper.
39. P.W.11-Vinod Hembrom, the brother of the deceased as well
as the informant stated in his examination-in-chief that the
occurrence had taken place on 29.5.2009, on that day, his younger
- 12 - Cr. Appeal (DB) No.539/2013
brother Santosh was going to Muikarha village in order to bring labour,
but he did not return in the night. In the next morning, he along with 2/3
boys proceeded towards Muikarha in order to search his brother.
When they reached near the canal, they saw the cycle of Santosh
lying in the field. Subsequently, they saw dead body of his brother in
canal, thereafter, he informed to his parent, that Matheus Tudu had
killed Santosh on the account of triangular love in between Matheus
(appellant), Santosh (deceased) and Chunai (P.W.3).
40. He further deposed that as per his dictation, Ramesh Marandi
had written the application. He put his signature. Even, Ramesh
Marandi also signed on that petition. He identified written report in the
pen of Ramesh Marandi and signed by him as well as by Ramesh
Marandi, which is marked as Exhibit/4.
41. Further, he identified the signature on inquest report, which is
marked as Exhbt.5. Further, he stated in his cross-examination as
stated before the police.
42. He admitted that he had not seen the occurrence by his own
eyes. He also stated that at about 10-days ago some altercation had
taken place in between Santosh and Matheus, but he had not informed
to the Police.
43. P.W.12-Ranjit Hembrom, stated in his examination-in-chief that
he heard about the dead body of Santosh Hembrom, then he went
there and saw the dead body. He also heard that Matheus Tudu has
killed Santosh due to love affairs. Further he stated in his cross-
examination that he had not seen the occurrence by his own eyes and
police has not recorded his statement.
- 13 - Cr. Appeal (DB) No.539/2013
44. P.W.13-Babudhan Hembrom and P.W.14-Sunil Hembrom are
the tendered witnesses.
45. P.W.15-Satendra Narayan Singh, the Investigating Officer
stated in his examination-in-chief that on 30.05.2009, he was posted
as Officer-in-charge of Ramgarh P.S. He identified the formal FIR in
his pen and signature, which is marked as Exhibit/6. He has also
identified the endorsement on the written report in his pen and
signature, which is marked as Exhbt.4/1. He also identified the
seizure-list written in his pen and signature, which is marked as Exhibit
1/2. He received investigation charge of this case and prepared
inquest report in three copies which is marked as Exhibit 5/1.
46. Further, he stated that during the course of investigation, he
recorded the restatement of the informant and inspected the place of
occurrence. The place of occurrence is situated near the canal in
between village, Muikorha and Borah Bathan. He also found the blood
stain in the field of Khujru Muru which is situated in western side of
canal. The field of Bahadur Hansda is situated 10 meters away. He
also found two lathis with blood stain cloths and sleeper and he had
seized the above articles. He recorded the statement of the other
witnesses and received postmortem report and also got examined
witness Chunai Hansda under Section 164 of the Cr.P.C.
47. Further, he had stated in his cross-examination that informant is
Resident of village Bora-Bathan and accused is resident of Muikorha.
Actually Santosh (Deceased) had fallen in love with Chunai Hansda for
the last one year. He wanted to bring the girl to his home, but his
family members were not agreed.
- 14 - Cr. Appeal (DB) No.539/2013
48. Further, he stated that on the date of occurrence at about 7
p.m., the deceased went to house of Sunil Murmu at village
Mulkumrha. He also admitted that seized articles have not been
produced before the court.
49. It appears from the testimonies of the witnesses as has been
discussed hereinabove that homicide is there. The same has been
supported by P.W.3, P.W.11 and P.W.15 the Investigating Officer.
50. But the question herein is that "as to whether the commission of
crime of murder, will come under the exception to Section 300 of the
Indian Penal Code or it is a case of commission of crime said to be
under Section 302 of the Indian Penal Code?
51. This Court, before answering the aforesaid issue based upon the
testimony, deems it fit and proper to refer the provision of Section
Sections 299, 300, 301 and 302 and 304.
52. The law is well settled that for proving the charge under Section
302 of the Indian Penal Code, it is the bounden duty of the Court to
consider the ingredient of culpable homicide as provided under
Section 299 of the Indian Penal Code, the murder as provided under
Section 300 and ingredient of Section 304 of the Indian Penal Code.
53. 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
- 15 - Cr. Appeal (DB) No.539/2013
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 mens rea necessary for the offence. The
knowledge of 3rd condition contemplates 69. The Hon'ble Apex Court
while taking in to consideration of aforesaid ingredients of section 299
IPC 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 attitude and this mental
condition is the special mens rea necessary for the
offence. The guilty intention in the first two
conditions contemplates the intended death of the
- 16 - Cr. Appeal (DB) No.539/2013
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."
54. It is, thus, evident that our legislature has used two different
terminologies 'intent' and 'knowledge' and separate punishments are
provided for an act committed with an intent to cause bodily injury
which is likely to cause death and for an act committed with a
knowledge that his act is likely to cause death without intent to cause
such bodily injury as is likely to cause death, it would be proper to hold
that 'intent' and 'knowledge' cannot be equated with each other. They
connote different things. Sometimes, if the consequence is so
apparent, it may happen that from the knowledge, intent may be
presumed. But it will not mean that 'intent' and 'knowledge' are the
same. 'Knowledge' will be only one of the circumstances to be taken
into consideration while determining or inferring the requisite intent.
55. Thus, while defining the offence of culpable homicide and
murder, the framers of the IPC 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. The framers of the
IPC designedly used the two words 'intention' and 'knowledge', and it
must be taken 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
- 17 - Cr. Appeal (DB) No.539/2013
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." (Russell on Crime, Twelfth
Edition, Volume 1 at page 40).
56. 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.
57. In the case of Nankaunoo Vrs. 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
- 18 - Cr. Appeal (DB) No.539/2013
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
- 19 - Cr. Appeal (DB) No.539/2013
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
- 20 - Cr. Appeal (DB) No.539/2013
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."
58. 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 :-
- 21 - Cr. Appeal (DB) No.539/2013
(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.
(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.
59. All these exceptions mentioned above shall come under purview
of Section 304 and will be termed as culpable homicide not amounting
to murder.
60. This Court, in order to consider 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, 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.
- 22 - Cr. Appeal (DB) No.539/2013
61. The Hon'ble Apex Court has dealt with the aforesaid position in
the case of Surinder Kumar Vrs. Union Territory, Chandigarh
reported in (1989) 2 SCC 217, wherein, paragraph 6 and 7 are
relevant which are being referred hereunder as :-
"6. Exception 4 to Section 300 reads as under:
"Exception 4.--Culpable homicide is not murder 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.
Explanation.--It is immaterial in such cases which
party offers the provocation or commits the first
assault."
7. To invoke this exception four requirements
must be satisfied, namely, (i) it was a sudden
fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the
assailant had not taken any undue advantage or
acted in a cruel manner. The cause of the quarrel
is not relevant nor is it relevant who offered the
provocation or started the assault. The number of
wounds caused during the occurrence is not a
decisive factor but what is important is that the
occurrence must have been sudden and
unpremeditated and the offender must have acted
in a fit of anger. Of course, the offender must not
- 23 - Cr. Appeal (DB) No.539/2013
have taken any undue advantage or acted in a
cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a
weapon which is handy and causes injuries, one
of which proves fatal, he would be entitled to the
benefit of this exception provided he has not acted
cruelly. In the present case, the deceased and PW
2 had entered the room occupied by Sikander Lal
and his family members and had demanded
vacant possession of the kitchen. When they
found that the appellant was disinclined to hand
over possession of the kitchen, PW 2 quarrelled
and uttered filthy abuses in the presence of the
appellant's sister. On the appellant asking him to
desist he threatened to lock up the kitchen by
removing the utensils, etc., and that led to a
heated argument between the appellant on the
one side and PW 2 and his deceased brother on
the other. In the course of this heated argument it
is the appellant's case that PW 2 took out a knife
from his pant pocket. This part of the appellant's
case seems to be probable having regard to the
antecedents of PW 2. It is on record that PW 2
was convicted at Narnaul on two occasions under
Section 411 IPC and his name was registered as
a bad character at the local police station. It was
- 24 - Cr. Appeal (DB) No.539/2013
presumably because of this reason that he had
shifted from Narnaul to Chandigarh a couple of
years back and had started to live in the premises
rented by PW 4. When the appellant found that
PW 2 had taken out a pen knife from his pocket
he went into the adjoining kitchen and returned
with a knife. From the simple injury caused to PW
2 it would appear that PW 2 was not an easy
target. That is why the learned Sessions Judge
rejected the case that Amrit Lal had held PW 2 to
facilitate an attack on him by the appellant. It
further seems that thereafter a scuffle must have
ensued on Nitya Nand intervening to help his
brother PW 2 in which two minor injuries were
suffered by the deceased on the left arm before
the fatal blow was inflicted on the left flank at the
level of the fifth rib about 2" below the nipple. It
may incidentally be mentioned that the trial court
came to the conclusion that the injury found on the
neck of PW 2 was a self-inflicted wound and had
therefore acquitted the appellant of the charge
under Section 307 IPC, against which no appeal
was carried. We have, however, proceeded to
examine this matter on the premise that PW 2
sustained the injury in the course of the incident.
From the above facts, it clearly emerges that after
- 25 - Cr. Appeal (DB) No.539/2013
PW 2 and his deceased brother entered the room
of the appellant and uttered filthy abuses in the
presence of the latter's sister, tempers ran high
and on PW 2 taking out a pen knife the appellant
picked up the knife from the kitchen, ran towards
PW 2 and inflicted a simple injury on his neck. It
would be reasonable to infer that the deceased
must have intervened on the side of his brother
PW 2 and in the course of the scuffle he received
injuries, one of which proved fatal. Taking an
overall view of the incident we are inclined to think
that the appellant was entitled to the benefit of the
exception relied upon. The High Court refused to
grant him that benefit on the ground that he had
acted in a cruel manner but we do not think that
merely because three injuries were caused to the
deceased it could be said that he had acted in a
cruel and unusual manner. Under these
circumstances, we think it proper to convict the
accused under Section 304, Part I IPC and direct
him to suffer rigorous imprisonment for 7 years."
62. In the case of Murlidhar Shivram Patekar and Another Vrs.
State of Maharashtra, reported in (2015) 1 SCC 694 it has been held
be Hon'ble Apex Court at paragraph 28 and 29 which reads as under:-
"28. The question however still remains as to the
nature of the offence committed by the accused
- 26 - Cr. Appeal (DB) No.539/2013
and whether it falls under Exception 4 to Section
300 IPC. In Surinder Kumar [Surinder
Kumar v. UT, Chandigarh, (1989) 2 SCC 217] ,
this Court has held as under: (SCC p. 220, para 7)
"7. To invoke this Exception four
requirements must be satisfied, namely, (i) it
was a sudden fight; (ii) there was no
premeditation; (iii) the act was done in a
heat of passion; and (iv) the assailant had
not taken any undue advantage or acted in a
cruel manner. The cause of the quarrel is
not relevant nor is it relevant who offered the
provocation or started the assault. The
number of wounds caused during the
occurrence is not a decisive factor but what
is important is that the occurrence must
have been sudden and unpremeditated and
the offender must have acted in a fit of
anger. Of course, the offender must not
have taken any undue advantage or acted in
a cruel manner. Where, on a sudden
quarrel, a person in the heat of the moment
picks up a weapon which is handy and
causes injuries, one of which proves fatal,
he would be entitled to the benefit of this
- 27 - Cr. Appeal (DB) No.539/2013
Exception provided he has not acted
cruelly."
(emphasis supplied)
29. Further, in Arumugam v. State [(2008) 15 SCC
590 at p. 595 : (2009) 3 SCC (Cri) 1130] , in
support of the proposition of law that under what
circumstances Exception 4 to Section 300 IPC
can be invoked if death is caused, it has been
explained as under: (SCC p. 596, para 9)
"9. ... '18. The help of Exception 4 can be
invoked if death is caused (a) without
premeditation; (b) in a sudden fight; (c)
without the offender's having taken undue
advantage or acted in a cruel or unusual
manner; and (d) the fight must have been
with the person killed. To bring a case within
Exception 4 all the ingredients mentioned in
it must be found. It is to be noted that the
"fight" occurring in Exception 4 to Section
300 IPC is not defined in the Penal Code,
1860. It takes two to make a fight. Heat of
passion requires that there must be no time
for the passions to cool down and in this
case, the parties had worked themselves
into a fury on account of the verbal
altercation in the beginning. A fight is a
- 28 - Cr. Appeal (DB) No.539/2013
combat between two and more persons
whether with or without weapons. It is not
possible to enunciate any general rule as to
what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a
quarrel is sudden or not must necessarily
depend upon the proved facts of each case.
For the application of Exception 4, it is not
sufficient to show that there was a sudden
quarrel and there was no premeditation. It
must further be shown that the offender has
not taken undue advantage or acted in cruel
or unusual manner. The expression "undue
advantage" as used in the provision means
"unfair advantage"."
63. In the case of Surain Singh Vrs. State of Punjab, reported
in (2017) 5 SCC 796 at paragraph 13 the Hon'ble Apex Court
has held which is being referred hereunder as :-
"13. Exception 4 to Section 300 IPC applies in the
absence of any premeditation. This is very clear
from the wordings of the Exception itself. The
Exception contemplates that the sudden fight shall
start upon the heat of passion on a sudden
quarrel. The Fourth Exception to Section 300 IPC
covers acts done in a sudden fight. The said
Exception deals with a case of provocation not
- 29 - Cr. Appeal (DB) No.539/2013
covered by the First Exception, after which its
place would have been more appropriate. The
Exception is founded upon the same principle, for
in both there is absence of premeditation. But,
while in the case of Exception 1 there is total
deprivation of self-control, in case of Exception 4,
there is only that heat of passion which clouds
men's sober reason and urges them to deeds
which they would not otherwise do. There is
provocation in Exception 4 as in Exception 1, but
the injury done is not the direct consequence of
that provocation. In fact, Exception 4 deals with
cases in which notwithstanding that a blow may
have been struck, or some provocation given in
the origin of the dispute or in whatever way the
quarrel may have originated, yet the subsequent
conduct of both parties puts them in respect of
guilt upon an equal footing. A "sudden fight"
implies mutual provocation and blows on each
side. The homicide committed is then clearly not
traceable to unilateral provocation, nor could in
such cases the whole blame be placed on one
side. For if it were so, the Exception more
appropriately applicable would be Exception 1.
There is no previous deliberation or determination
to fight. A fight suddenly takes place, for which
- 30 - Cr. Appeal (DB) No.539/2013
both parties are more or less to be blamed. It may
be that one of them starts it, but if the other had
not aggravated it by his own conduct it would not
have taken the serious turn it did. There is then
mutual provocation and aggravation, and it is
difficult to apportion the share of blame which
attaches to each fighter."
64. In the case of State of Andhra Pradesh Vrs. Rayavarapu
Punnayya & Anr., reported in (1976) 4 SCC 382, the Hon'ble
Apex Court, while clarifying the distinction between section 299
and 300 of the IPC 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
- 31 - Cr. Appeal (DB) No.539/2013
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)
65. In Pulicherla Nagaraju v. State of A.P., reported in (2006)
11 SCC 444, wherein the Hon'ble Apex Court enumerated some
of the circumstances relevant to finding out whether there was
any intention to cause death on the part of the accused. The
Court observed as under:
"29. Therefore, the court should proceed to decide
the pivotal question of intention, with care and
caution, as that will decide whether the case falls
under Section 302 or 304 Part I or 304 Part II. Many
petty or insignificant matters -- plucking of a fruit,
straying of cattle, quarrel of children, utterance of a
rude word or even an objectionable glance, may lead
to altercations and group clashes culminating in
deaths. Usual motives like revenge, greed, jealousy
or suspicion may be totally absent in such cases.
There may be no intention. There may be no
premeditation. In fact, there may not even be
criminality. At the other end of the spectrum, there
- 32 - Cr. Appeal (DB) No.539/2013
may be cases of murder where the accused attempts
to avoid the penalty for murder by attempting to put
forth a case that there was no intention to cause
death. It is for the courts to ensure that the cases of
murder punishable under Section 302, are not
converted into offences punishable under Section
304 Part I/II, or cases of culpable homicide not
amounting to murder, are treated as murder
punishable under Section 302. The intention to cause
death can be gathered generally from a combination
of a few or several of the following, among other,
circumstances : (i) nature of the weapon used; (ii)
whether the weapon was carried by the accused or
was picked up from the spot; (iii) whether the blow is
aimed at a vital part of the body; (iv) the amount of
force employed in causing injury; (v) whether the act
was in the course of sudden quarrel or sudden fight
or free for all fight; (vi) whether the incident occurs by
chance or whether there was any premeditation; (vii)
whether there was any prior enmity or whether the
deceased was a stranger; (viii) whether there was
any grave and sudden provocation, and if so, the
cause for such provocation; (ix) whether it was in the
heat of passion; (x) whether the person inflicting the
injury has taken undue advantage or has acted in a
cruel and unusual manner; (xi) whether the accused
- 33 - Cr. Appeal (DB) No.539/2013
dealt a single blow or several blows. The above list of
circumstances is, of course, not exhaustive and there
may be several other special circumstances with
reference to individual cases which may throw light
on the question of intention."
(Emphasis supplied)
66. 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
- 34 - Cr. Appeal (DB) No.539/2013
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
- 35 - Cr. Appeal (DB) No.539/2013
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.
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
- 36 - Cr. Appeal (DB) No.539/2013
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
- 37 - Cr. Appeal (DB) No.539/2013
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 mens
rea. 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
- 38 - Cr. Appeal (DB) No.539/2013
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
- 39 - Cr. Appeal (DB) No.539/2013
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. 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?
(ii) Whether the case is said to be covered under the
exception to Section 300 of the Indian Penal Code?
(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?
68. Since all the three issues are interlinked, the same are being
decided hereinbelow by considering them together, in the light of the
deposition of witnesses examined during course of trial. Summarizing
the depositions of the witnesses as referred above it is found from the
testimonies of P.W.3 Chunai Hansda who at the time of occurrence
was accompanying the appellant. The deceased reached near them
and scuffle took place.
69. It has been deposed that the appellant was having pistol. The
appellant assaulted the deceased with danda due to which the
deceased fell down and died on the spot near the canal, thereafter
accused/appellant fled away.
- 40 - Cr. Appeal (DB) No.539/2013
70. It further appears from the testimony of P.W.5, father of the
deceased, who is the hearsay witness but came to know about the
commission of murder of his son.
71. He has deposed that the dead body of the deceased was found
in canal and the Police came there and taken the dead body of the
deceased.
72. P.W.6, has deposed in his examination-in-chief that the
occurrence had taken place on 29.05.2009 while Santosh (deceased)
went to village Bhuikumarh at about 7:00 p.m. to bring labour. But he
did not return in the night.
73. In the next morning, he along with brother of deceased namely
Binod and other boys went in search of Santosh, the deceased. When
they reached near canal, then they saw the cycle of Santosh lying in
the paddy field. Subsequently, they saw the dead body of the Santosh.
Police came there and prepared paper of the dead body and also
seized soil, bangle, danda etc. after making seizure list. He has
identified his signature, which is marked as Exhibit 1/1.
74. In his cross-examination, he has deposed that he had not seen
the occurrence by his own eyes. Police had seized the blood stain soil,
bangles and danda in front of him.
75. He has further admitted that the seized articles have not
produced before the Court. He has further deposed that the deceased
Santosh was fallen in love with Chunai Hansda, P.W.3.
76. P.W.7 and 8 has been declared to be hostile.
77. P.W.9, who is the mother of the deceased, has stated in her
examination-in-chief that when the deceased has not returned in the
- 41 - Cr. Appeal (DB) No.539/2013
evening, then she sent her another son Vinod to search him. Vinod
saw the cycle of Santosh in the field and further saw the dead body of
Santosh in another place.
78. She has also corroborated about the love affairs of the deceased
with P.W.3. She has also deposed that the appellant was friend of the
deceased. She has further deposed that both the boys was fallen in
love with same girl and due to that, some altercation had taken in
between them.
79. P.W.10 is the witness of inquest report. He has deposed in his
examination-in-chief that the deceased was his nephew. His dead
body was recovered from canal. Police came there and prepared
inquest report and he put his signature on the paper.
80. P.W.11 is the brother of the deceased as well as the informant of
his case. He has stated in his examination-in-chief that the occurrence
had taken place on 29.05.2009. On that day, his younger brother
Santosh was going to Muikarha Village in order to bring labour but he
did not return in night. As such in the next morning, he along with 2/3
boys proceeded towards Muikarha in order to search his brother.
When they reached near the canal, they saw the cycle of Santosh
lying in the field. They also saw the dead body of his brother in canal.
Accordingly, due information was given to the parents and thereafter
the Police being informed and came there.
81. P.W.12 is the hearsay witness, while, P.W.13 and P.W.14 are
the tendered witnesses and they have not supported the prosecution
case.
- 42 - Cr. Appeal (DB) No.539/2013
82. P.W.15 is the Investigating Officer. He has prepared the inquest
report. He has corroborated the testimony of P.W.11 and other
witnesses whose statements were recorded under Section 161 of the
Cr.P.C.
83. He has also deposed that he has found two lathis with blood
stain cloths and sleeper and seized the above articles. He recorded
the statement of the other witnesses and received the postmortem
report. He has also deposed of recording the statement of Chunai
Hansda under Section 164 of the Cr.P.C.
84. He has also found in course of investigation that the Santosh
(deceased) had fallen in love with Chunai Hansda for last one year. He
wants to bring the girl to his home but his family members were not
agreed.
85. It has further come in his testimony that he has found the sign of
dragging of the dead body. He has found the dead body in the canal
over which a stone was there.
86. Admittedly, herein the P.W.3 was having love affairs with the
deceased. But, as has been disclosed by P.W.3 in her testimony that
the said affairs were broken down for the last one year.
87. It has also been deposed that after the end of relation with the
deceased, she had fallen in love with the appellant. The deceased was
objecting to the same since, he was willing to marry with P.W.3. But as
has been deposed by P.W.3 that since the deceased had already
married and hence, she had broken the relationship with the
deceased. But the deceased was having intense inclination with the
P.W.3 which would be evident from the testimony of P.W.3 itself,
- 43 - Cr. Appeal (DB) No.539/2013
wherein, she deposed that while she was along with the appellant, the
deceased was going along with her stolen cloths taken from her
house.
88. She further deposed that the deceased was having with the
pistol. She has further deposed that when the deceased reached near
the appellant then the scuffle took place upon which, the appellant had
assaulted the deceased by danda (lathi) due to which the deceased
fell down and thereafter, she along with the appellant fled away from
the place of occurrence.
89. It is evident from the testimony of P.W.3 that on the issue of love
affairs with her, the deceased and the appellant were having inimical
relationship. The appellant had assaulted the deceased by danda and
thereafter, when the deceased fell down near the canal, both of them,
i.e., P.W.3 and the appellant had fled away from the place of
occurrence.
90. The Investigating Officer, in course of investigation, found the
broken bangles and the sandal at the place of occurrence.
91. The Investigating Officer found the broken bangles at the place of
occurrence which suggests scuffle had taken place at the place of
occurrence. It has also come in the testimony of P.W.3 that the
appellant has taken out the pistol from the deceased which also
suggests that the scuffle took place in between the deceased and the
appellant.
92. The conviction is based upon the testimony of P.W.3 but the
P.W.3 has only stated about the assaults as made by the appellant
upon the deceased by lathi. The falling down of the deceased near the
- 44 - Cr. Appeal (DB) No.539/2013
canal had been witnessed by P.W.3 before both of them (P.W.3 and
the appellant) fled away from the place of occurrence.
93. This Court, on the basis of the assessment of the testimony of
P.W.3 who has been considered to be eye witness by the learned trial
Court, is of the view that the assault was given by the appellant upon
the deceased in course of scuffle took place in between them and it
further appears that P.W.3 has also come in the way otherwise, there
was no question of finding the broken bangles at the place of
occurrence.
94. It requires to refer herein that the learned trial Court has based
the conviction solely upon the testimony of P.W.3., wherein, the P.W.3
has disclosed about two assaults by danda which was given by the
appellant, due to which, the deceased fell down near the canal,
thereafter, the P.W.3 along the appellant fled away from the place of
occurrence. From the deposition of PW.3 it is also evident that on point
of stealing cloth of the P.W.3 by the deceased, the scuffle was taken
place in between deceased and appellant and without any intention
appellant assaulted the deceased.
95. These circumstances suggest that there was an altercation in
between the deceased and the appellant in which P.W.3 was also
involved for any reason whatsoever, since, the broken bangle was
found from the place of occurrence and it is clearly deposed by P.W.3
that the deceased had committed theft of her cloths from her house
and thereafter, he was running away. Hence, it cannot be said that
there was pre-meditation of mind of committing murder, hence, it is
coming under the exception as referred hereinabove.
- 45 - Cr. Appeal (DB) No.539/2013
96. We have considered the testimony of Investigating Officer,
wherefrom, we have found that the Investigating Officer has found the
sign of dragging of the body and the dead body was found in the canal
over which a stone was found.
97. But this version was not supported by the sole eyewitness
i.e.P.W.3. If the version of Investigating Officer would have been in
corroboration to the testimony of the sole eyewitness i.e.P.W.3, then
certainly, the case would have been the commission of murder
attracting the ingredients of Section 304 of the Indian Penal Code. But
that is not the fact herein, since, P.W.3 has not supported the
aforesaid version of drowning the dead body in the canal. Further, the
Investigating Officer has not investigated on this issue.
98. This Court, therefore, is of the view that the testimony of the
Investigating Officer to that extent being not corroborated by the
testimony of P.W.3, cannot be made applicable for attracting the
ingredients of Section 302 of the Indian Penal Code.
99. It is bounden duty of the court to decide the pivotal question of
intention, with care and caution, as that will decide whether the case
falls under Section 302 or 304 Part I or 304 Part II. Many petty or
insignificant matters may lead to altercations culminating in deaths.
Usual motives like revenge, greed, jealousy or suspicion may be totally
absent in such cases. There may be no intention. There may be no
premeditation. In fact, there may not even be criminality. It is for the
courts to ensure that the cases of murder punishable under Section
302, are not converted into offences punishable under Section 304
Part I/II, or cases of culpable homicide not amounting to murder.
- 46 - Cr. Appeal (DB) No.539/2013
100. The intention to cause death can be gathered generally from a
combination of a few or several circumstances like nature of the
weapon used; or the weapon was carried by the accused or was
picked up from the spot; the amount of force employed in causing
injury; the act was in the course of sudden quarrel or sudden fight or
free for all fight; the incident occurs by chance or whether there was
any premeditation; there was any grave and sudden provocation, and
if so, the cause for such provocation; it was in the heat of passion; the
accused dealt a single blow or several blows.
101. This Court, based upon the discussion made hereinabove, is of
the view that it is a case where the crime was committed at the spur of
moment and without premeditation and intention.
102. This Court, in view thereof, is of the view that the conviction is
not required to be under Section 302 of the Indian Penal Code, rather,
based upon the aforesaid discussion, it is a case under Section
exception to Section 300 and hence, Part-II of Section 304 of the
Indian Penal Code, since is attracted, hence, the conviction is to be
under Section 304 Part-II.
103. This Court, after having the discussed the factual aspects along
with the legal position as above and coming to the judgment passed by
the learned trial Court, is of the view that the judgment of
conviction/sentence needs to be interfered with.
104. Consequently, the judgment passed by the court below is
modified and this Court, hereby, finds the appellant guilty for the
offence under Section 304 Part II I.P.C and sentence him to undergo
- 47 - Cr. Appeal (DB) No.539/2013
rigorous imprisonment for nine years and fine of Rs.5000/- in default
thereof to further suffer rigorous imprisonment of six months.
105. It has been informed that the appellant is languishing in judicial
custody since 2009 and as such, he has already remained in the
custody for the period of more than 14 years, therefore, he is
sentenced for the period already undergone and appellant is directed
to be released from the jail custody, if not wanted in any other case.
106. Accordingly, the judgment of conviction dated 05.06.2013 and
order of sentence dated 12.06.2013 passed by the learned District &
Additional Sessions Judge-II, Dumka in Sessions Trial Case No.238 of
2009, is hereby modified at the extent as indicated hereinabove.
107. The appeal is hereby dismissed with the aforesaid modification
of the judgment of conviction and order of sentence to the extent as
indicated above.
I Agree (Sujit Narayan Prasad, J.)
(Navneet Kumar, J.) (Navneet Kumar, J.)
High Court of Jharkhand, Ranchi
Dated: 31st October, 2023.
Rohit/-A.F.R.
