Jharkhand High Court
Shivcharan Hembrom Son Of Late Gandhi ... vs The State Of Bihar on 14 August, 2025
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 184 of 1997(DB)
------
(Against the judgment of conviction dated 25th April, 1997
and order of sentence dated 29th April, 1997, passed by
learned 1st Additional Sessions Judge, Godda in Sessions Trial
No.140 of 1995/61 of 1995)
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1.Shivcharan Hembrom son of late Gandhi Hembrom
2.Surendar Hembrom son of late Gandhi Hembrom.
3.Etwari Hembrom alias Etwari Soren son of Junu Soren.
4.Tej Narayan Hembrom alias Hansda son of Bhola
Hansda
5.Sahibram Hembrom son of late Gandhi Hembram
6.Marang Kisku son of late Sobhnath Kisku
All residents of Village Chanaykitta, P.S.
Mahagama, District Godda.
.... Appellants
Versus
The State of Bihar ..... Respondent
with
Cr. Appeal (DB) No. 247 of 1997(DB)
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Yadunandan Hembram son of Gandhi Hembram
Both residents of Village Chanaikitta, P.S. Mahagama,
District Godda.
.... Appellant
Versus
The State of Bihar ..... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
.....
For the Appellants : Mr. A.K. Kashyap, Sr. Advocate
Mr. Manoj Kr. Sah, Advocate
[In both cases]
For the State : Mrs. Lily Sahay, A.P.P.
[In both cases]
.....
C.A.V. on 17/07/2025 Pronounced on 14/08/2025
Per Sujit Narayan Prasad, J.:
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1. At the outset, it would be apt to mention here that in
pursuance to order passed by the Co-ordinate Bench of
this Court affidavit has been filed by the State,
wherefrom it is evident that in Cr. Appeal No. 184 of
1997(P), original appellant no. 1-Sanju Murmu alias
Kisku; appellant no. 6-Rome Tudu and appellant no. 7-
Tala Hansda have died whereas in Cr. Appeal (DB) No.
247 of 1997 (DB), the original appellant no.1-Khaddi
Kisku has died. Therefore, the Cr. 184 of 1997(P)
stands abated so far original appellant no. 1-Sanju
Murmu alias Kisku; appellant no. 6-Rome Tudu and
appellant no. 7-Tala Hansda are concerned and Cr.
Appeal No. 247 of 1997(DB) stands abated so far
original appellant no. 1 Khaddi Kisku is concerned, as
would be evident from order dated 01.10.2024 of this
court.
2. Since both the appeal arises out of the common
judgment of conviction dated 25th April, 1997 and order
of sentence dated 29th April, 1997, passed by learned
1st Additional Sessions Judge, Godda in Sessions Trial
No.140 of 1995/61 of 1995, as such they have been
tagged together and taken up together for analogous
hearing and are being disposed of by this common
order.
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Prayer:
3. Both the appeals have been filed under Section 374 (2)
of the Code of Criminal Procedure against judgment of
conviction dated 25th April, 1997 and order of sentence
dated 29th April, 1997, passed by learned 1st Additional
Sessions Judge, Godda in Sessions Trial No.140 of
1995/61 of 1995, by which the appellant Yadunandan
Hembram was convicted under section 302 I.P.C and
sentenced to undergo imprisonment for life. Appellants
Shivcharan Hembrom, Surendar Hembrom, Etwari
Hembrom alias Etwari, Tej Narayan Hembrom alias
Hansda, Sahibram Hembrom and Marang Kisku, were
convicted under section 302 read with 34 of IPC and
were sentenced to undergo imprisonment for life.
Prosecution Case:
4. The prosecution case, in brief, as per fardbeyan dated
03.04.1995 of the informant Ramdeo Yadav (P.W-5) is
that on 03.04.1995 from morning informant along with
his father (deceased), his brother named Chigo Yadav,
Suchit Yadav and Parbha Yadav were irrigating land. At
1.30 P.M., accused persons Khaddi Kisku, Yadunandan
Hembrom, Marang Kisku, Tej Narayan Hansda, Tala
Hansda, Sahibram Hembrom, Surendar Hembrom,
Shivcharan Hembrom, Rome Tudu, Etwari Hembrom
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and Sanju Kisku along with 15-20 others armed with
bows and arrows, bhalla, garasha, kudal began to cut
away the bandh of the canal which had been
constructed by his villagers for irrigating. Informant
party objected to cutting the bandh and said that as the
water was not flowing in the canal, so they had brought
water from the pond for irrigation. On the objection
raised by the informant party accused persons held out
bows and arrows and cut the bandh. Informant's
father, began to pacify the accused saying that they had
cut the bandh and now they should go away and
should not quarrel. Then one of the accused namely
Marang Kisku exhorted in his dialect (in santhali) that
he should be killed. At this Kheddi Kisku and
Yadunandan Hembrom shot an arrow hitting the father
of the informant on his chest as a result father of the
informant fell down.
5. The informant further stated that the accused persons
began to shot arrows and out of fear the informant
party fled away to their village, but, the accused
persons went on shooting and chasing the informant
party up to the village. On alarm several persons came
at which the accused persons fled away. The informant
along with the villagers went to his father and found
him dead.
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6. On the basis of the fardbeyan of the informant FIR
being Mahagama P.S case no. 33/1995 dated
03.04.1995 was registered under sections
147,148,149,302 of IPC against the accused persons
and after investigation charge sheet was submitted
against the accused persons and cognizance of the
offences were taken and the case was committed to the
court of sessions. On the above allegation, charge u/s
302 IPC was framed against Khaddi Kisku and
Yadunandan Hembram and other nine accused persons
were charged under section 302/34 I.P.C.
7. Prosecution had examined altogether 11 witnesses out
of whom P.W-5 Ramdeo Yadav, is the informant of the
case; P.W-1 is Upendra Yadav; PW-2 is Biranchi Yadav;
PW-3 is Saryug Yadav; P.W-4 is Arjun Yadav;PW-6 is
Chattu Mahto, who is photographer; PW-7 is Rupesh
Kumar Dubey, who is second investigating officer of the
case; PW-8 is Dr. Ajay Kumar Jha; PW-9 is Faguwa
Milwar, who is Special Branch Officer CID at Saraikela ,
West Singhbhum; P.W-10 is Om Prakash Singh, who is
the first investigating officer of the case and P.W7-11
Lalu Singh, is constable.
8. The prosecution has to prove its case beyond all
reasonable and probable doubts. The defence of the
accused is that as the informant and members of his
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party had checked the flow of water in public canal,
mob of Santhals came and cut the bandh and also
shoot arrows which hit the victim. The defence of
Yadunandan Hembram is that his middle finger, ring
finger and little finger were joint and bent as such
cannot shoot any arrow.
9. The learned trial Court, after recording the evidence of
witnesses, examination-in-chief and cross-examination,
recorded the statement of the accused persons, find
and hold the accused persons guilty and convicted, in
the manner as indicated hereinabove.
10. Against the aforesaid order of conviction and
sentence the present appeals have been preferred.
Submission on behalf of appellants:
11. Mr. A.K. Kashyap, learned senior counsel for the
appellants has assailed the impugned judgment of
conviction and order of sentence on the following
grounds:
I. The prosecution has miserably failed to
establish the charge said to be proved, beyond
all reasonable doubt, in establishing the charge
said to be committed by the appellant under
section 302 of the IPC.
II. Submission has been made that as a matter of
fact the informant party since had closed the
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canal so Santhals were not getting water,
therefore mob of Santhals came, shoot arrows
and cut the closed canal.
III. Further submission has been made that
shooting of arrows upon the deceased is against
two of the convicts, namely, Yadunandan
Hembrom and Khadi Kishku, out of that Khadi
Kisku has died and so far, Yadunandan
Hembram is concerned, three fingers of both of
his hand are joint and twisted as such he
cannot shoot an arrow but this aspect of the
matter has not been appreciated by learned
trial court.
IV. Submission has been made that the occurrence
is free fight between both the informant party
and santhals, since the public bandh was
closed by the appellants, in opposition of which
hundreds of Santhals armed with arrows came
and cut the bandh for getting water for which
dispute arose resulting into death of the
deceased.
V. The learned senior counsel appearing for the
appellants based upon the aforesaid grounds
has submitted that the impugned conviction
under section 302 IPC is not established
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against the appellants and hence, the impugned
judgment is fit to be quashed and set aside.
VI. The learned senior counsel has further
submitted that even otherwise also there was
no premeditation to commit murder rather on
spur of moment the incident took place on the
issue of closing of public bandh.
VII. The learned senior counsel, in alternative, has
argued that even accepting the prosecution
version to be correct, then also it is not a case
said to be made out against the appellants
under section 302 IPC, rather at best the case
under section 304 Part-II will be made out.
12. Learned counsel for the appellants, in the backdrop
of aforesaid grounds, has submitted that the judgment
of conviction and order of sentence since is not based
upon cogent evidence and as such it cannot be said
that the prosecution has been able to prove the charge
beyond all reasonable doubt.
Submission of the learned APP for the state
13. Per Contra, Mrs. Lily Sahay, learned Additional
Public Prosecutor appearing on behalf of State has
defended the impugned judgment of conviction and
order of sentence taking the ground that the impugned
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judgment has been passed based upon the testimony of
witnesses who have supported the prosecution version.
14. Submission has been made that the witnesses are
consistent in their testimony that when the informant
along with his father (the deceased), and others were
irrigating land, the appellants along with others armed
with bows and arrows, bhalla, garasha, Kudal came
and started to cut away the bandh of the canal which
had been constructed by his villagers. Upon objection of
cutting bandh, they attacked with bows and arrows and
Khaddi Kisku and Yadunandan Hembram shot an
arrow hitting the father of the informant on his chest
and later on he was found dead.
15. The prosecution version has not only been supported
by the testimonies of the witnesses but the prosecution
version has also been supported by the medical
evidence.
16. Learned State counsel based upon the aforesaid
grounds has submitted that the prosecution has been
able to prove the guilt of the accused beyond all
reasonable doubt.
Analysis
17. We have heard learned counsel for the parties,
perused the documents and the testimony of witnesses
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as also the finding recorded by learned trial Court in
the impugned order.
18. This Court, before appreciating the argument
advanced on behalf of the parties as also the legality
and propriety of the impugned judgment, deems it fit
and proper to refer the testimonies of the prosecution
witnesses.
19. P.W-1 Upendar Yadav has stated that the
occurrence took place on 03.04.1995 at 12 noon to 1.00
p.m. He was keeping watch of his onion field. Bhujangi
Yadav (deceased), had erected a bandh in canal and
was irrigating maize crop. Santhals came and cut the
bandh. Santhals had come with lathi, bhalla and
arrows. Bhujangi Yadav, said why they cut the bandh
and at this Marang exhorted in his dialect to kill. Then
Khaddi and Yadunandan shoot arrows which hit
Bhujangi on his chest.
20. P.W-1 has further stated that the accused persons
further went on shooting arrows on them but he and
others fled to village. They went to the village and raised
alarm and when they returned, he found Bhujangi
dead. The witness named the other culprit as
Shibcharan, Rome, Tala, Etwari, Sahibram, Surendar
and Tejnarayan. The inquest report was prepared in his
presence in carbon process. P.W-1 identified his
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signature on the Inquest Report as Ext.-1 and identified
signature of Biranchi Yadav on the inquest report as
Ext.-1/1.
21. P.W-1 in his cross-examination stated that his land
is 100 yards away from the land of Bhujangi Yadav.
P.W-1 further stated that in addition to him there were
Biranchi Yadav, Arjun Yadev, Surainarayan Yadav in
the vicinity who were keeping watch on the maize crops.
Further in the cross-examination, he stated that after
Bhujangi fell on the ground by receiving arrows then
they fled away. In para 7 he stated that there was mob
of 50-60. Khaddi and Yadunandan shoot arrows.
Bhujangi fell on the ridge of the land of Biranchi and
Parbhu Yadav.
22. P.W-2 Biranchi Yadav has stated in his evidence
that one year prior to his deposition, in the month of
Chait he was keeping watch in the field of onion and
Bhujangi was irrigating land by bringing water from the
tank. Marang, Khaddi, Yadunandan, Shibcharan,
Surendar, Sanju, Rome, Tala, Tejnarayan, Etwari and
Sahibram came. They were armed with bows and
arrows, garasha, lathi and kuddal. They came and cut
the bandh to which Bhujangi objected and said that as
they had cut the bandh they should move away. At this
Marang exhorted in Santhali dialect to commit murder.
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Then Khaddi and Yadunandan short arrows and both
the arrows hit him on his chest as a result Bhujangi fell
on the ground. He was standing at the ridge. He
further stated that the accused persons further shoot
arrows and gave chase to him, informant and others.
The witness further stated that four arrows fell on the
roof of Jatu Yadav. P.W-2 further stated that the I.O.
prepared Inquest report which was signed by him. His
signature on the inquest report is already marked as
Ext.-1/1.
23. P.W-3 Saryug Yadav has stated in his evidence that
the occurrence was on the 3rd day of 4th month one year
ago. At 1.30.P.M., he was working in his field. He saw
Khaddi, Yaddunandan, Tejnarayan, Etwari, Marang,
Somna, Sanju, Tala, Shibcharan, Sahibram and
Surendar came there. They were armed with bows and
arrows, bhalla and kudal. They come and begin to cut
the bandh erected by Bhujangi. When Bhujangi
objected, they did not pay heed. Bhujangi began to
pacify at which Marang, exhorted for murder in his
dialect. Then Khaddi and Yaddunandan shoot arrows
which hit Bhujangi in his chest as a result Bhujangi fell
down. The accused began to shoot arrows then the
witness and others fled towards the village. The
accused chased them up to the village. They reached
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village and raised alarm, then the accused persons fled
away. They returned and found Bhujangi dead. P.W-3
further stated that deceased Bhujangi had brought
water from personal tank and was irrigating the land.
Accused persons had no right on the water brought
from pond by Bhujangi. The accused persons forcibly
wanted to take water. In his cross-examination PW-3
has stated that at the time of occurrence the canal was
closed and water was not flowing and they had brought
water from their own pond. Pond is south of the canal.
The witness further stated that Bhujangi had closed the
canal to irrigate his crop of onion. In para 5 PW-3
stated that on the day of occurrence Bhujangi was
irrigating the land and he was in his land. In para 7,
P.W-3 stated that he saw the assault being inflicted on
the victim from a distance of 130 yards. P.W-3 further
stated that the police had found 15 arrows out of which
4 arrows were found from the roof of Jatu Yadav and 11
arrows were found from the field of Biranchi.
24. P.W-4 Arjun Yadav has stated in his evidence that
on the day of occurrence he was at his home. Then
Upendar and Nagendra came to village raising halla,
then they came out of the village. They went to the
place of occurrence and found Bhujangi dead and
found two arrows pierced in the chest of Bhujangi.
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25. P.W-5 Ramdeo Yadav, is the informant himself.
Informant has stated in his evidence that He stated that
occurrence took place on 03.04.1995 at 1.30 P.M. He
was irrigating his land along with his father Bhujangi
and others namely Chigo Yadav, Suchit Yadav and
Prabha Yadav. There Yadunandan, Marang Kisku, Tej
Narayan Hansda, Sanju Tudu, Etwari Tudu, Sahibram
Hembrom, Rome Tudu, Surendar Hembrom,
Shibcharan Hambrom and Tala Hansda came.
Yadunandan and Khaddi Kisku were armed with arrow
and others were armed with kudal, bhalla and lathi.
26. Informant further stated that accused persons began
to cut bandh. They had constructed bandh and had
brought water from their pond and were irrigating
maize crop. When accused persons began to cut the
bandh, his father Bhujangi asked them not to cut then
Marang Kisku exhorted in his Santhali dialect that he
should be killed. At this, Khaddi Kisku shot an arrow
which hit his father on his chest and Yadunandan also
shot another arrow which hit his father on his chest as
a result his father fell down. Informant further stated
that the accused persons began to shoot arrows on
them then they fled away, but accused persons chased
them up to their village. They raised alarm in the village
and villagers assembled then the accused persons fled
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away. When he returned, he found his father dead.
Informant further stated that the accused persons had
no right to irrigate land from taking water from the
pond as the pond belonged to their village. Accused
persons had separate pond. Informant has identified
his signature and signature of Bajrangi Yadav on the
fardbeyan which were marked as Ext.-½ and 1/3
respectively. Informant further stated that investigating
officer had taken earthen blood, 11 arrows from the
field and four arrow from the roof of the house of Jutu
Yadav. In his cross-examination informant has stated
that water comes from Sunder Dam and at the time of
occurrence water was no coming from Sunder Dam. At
para-10, the informant stated that the accused
Yadunandan and Khaddi began to shoot arrow. In para
11 informant stated that when the two arrows pierced
the chest of his father, his father fall on the northern
ridge.
27. P.W. 6 Chattu Mahto, is Photographer, who has
stated in his evidence that Ramdeo Yadav had called
him to take photograph of Bhujangi Yadav. He took
photograph of the dead body of the victim. The negative
copy of photograph is marked material Ext.-1 and the
positive copy of photograph is marked Ext.-II.
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28. P.W-7 is Rupesh Kumar Dubey, who is second
investigating officer of the case. PW-7 has proved the
fardbeyan and Formal FIR which were marked as Ext.-2
and Ext-3 respectively. PW-7 further stated that he had
took the investigation of this case on 30.05.1995 from
police inspector Om Prakash Singh and had submitted
charge sheet. In his cross-examination he deposed that
he had not taken the statement of any of the witness
and he had not inspected the place of occurrence.
29. PW-8 is Dr. Ajay Kumar Jha and he had conducted
post-mortem examination on the dead body of the
deceased Bhujangi Yadav. Doctor had stated in his
evidence that on 04.04.1995, he had conducted
postmortem on the dead body of the deceased. Doctor
had found two arrows with wooden bamboo stick deeply
embedded in chest wall. Doctor found following ante-
mortem injuries on his person-
(i) punctured wound 1‟‟x1/2‟‟ communicating inside right side of
chest with arrow in situ, situated in first entercostal space just
lateral to sternum
(ii) punctured wound 1‟‟x1/2‟‟ communicating inside the chest on
leftt side in 4th entercostal space just lateral to sternum
(iii)Lacerated injury 1‟‟x1‟‟ on right side of front of chest in third
entercostal space
30. Doctor opined that death was due to
hemorrhage and shock due to injuries caused by arrow.
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Doctor has proved the post-mortem report of the
deceased which was marked as Ext.-5. In para 8 he
stated that he took out two arrows and handed over the
same to the police.
31. PW-9 is Faguwa Milwar, who is Special Branch
Officer in CID at Saraikela , West Singhbhum. P.W-9
has stated in his evidence that on 03.04.1995, he was
posted at Mahgama police station. He got rumor that a
murder had been committed in Kittapathar, village
which he entered Sanha no. 52 dated 03.04.1995. He
went to the village and took the fardbeyan of the
informant Ramdeo Yadav. The fardbeyan has been
already marked Ext.-2. P.W-9 prove the endorsement
on the fardbeyan which was marked as Ext.-6. P.W-9
further stated that he found eleven arrows at the place
of occurrence and four arrows on the roof of a house.
He prepared seizure list of the recovered arrow in
presence of Arjun Yadav and Singheshwar. The seizure
list of the recovered arrows is marked as Ext.-7. He
prepared Inquest report which is marked Ext.-8. The
Inquest report is signed by the witness Biranchi Yadav
and Upendar Yadav. In his cross-examination P.W-9
stated that in the seizure list of the arrows, he stated
the recovery of the arrows from the field of Biranchi
Yadav and from the roof of Jatu Yadav.
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32. PW-10 is Om Prakash Singh, who is the first
investigating officer of the case. P.W-10 has stated in
his evidence that on 03.04.1995, he was posted as
Officer-in-Charge of Mahgama Police Station. He
entered Sanha No. 52 dated 03.04.1995. A.S.I. Fagwa
Milwar, A.S.I. Hulash Deo Singh and police Rameshwar
Singh were sent for the investigation. PW-10 further
stated that, A.S.I. Fagwa Milwar had written the
fardbeyan. They returned to P.S. with the fardbeyan,
seizure list, Inquest report and arrows and handed over
the same to him. He made endorsement on the
fardbeyan, which has already been marked as Ext.-6
and made prepared formal FIR. He kept 15 arrows in
the Malkhana and started investigation. He inspected
the place of occurrence which is fallow land of Biranchi
Yadav. He also found that the bandh was cut. He took
statement of witnesses, received the P.M. report and on
his transfer handed over the investigation of the case to
the Office-in-Charge Sri B.K. Dubey on 28.05.1995.
33. P.7-11 Lalu Singh, is constable. P.W-11 has stated
in his evidence that he had brought 15 arrows from
Malkhana to the court. These arrows were marked
firstly as material Ext.-I later on corrected to be
material Ext.-III.
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34. Hence, from the testimonies as reproduced above
and the fardbeyan it has come that on 03.04.1995 at
about 1.30 P.M. dispute occurred between informant
party and appellants due to construction of bandh at
the canal of Sunder Dam. The bandh was constructed
by informant's father Bhujangi Yadav (deceased), for
irrigation of his farm, which resulted into obstruction of
flow of water, through the canal, to the Santhal Village.
Hence, mob of Santhal came and cut the bandh, which
resulted into altercation between informant party and
Santhals, in which Bhujangi Yadav died due to alleged
arrow shot on his chest by the accused persons.
35. On the above allegation, appellants Khaddi Kisku
and Yadunandan Hembram were tried and convicted
under section 302 of IPC. Here, it is pertinent note that
appellant Khaddi Kisku died during the pendency of the
appeal, hence, his appeal stands abated. Other
appellants were convicted under section 302/34 I.P.C.
36. Therefore, this Court, on the basis of documents
available on record as exhibited and testimony of the
witnesses, is to see as to whether there is sufficient
material to attract offence under Section 302 and
302/34 IPC against the appellants.
37. The admitted fact is that-
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(1) On 03.04.1995 there was dispute between
informant's father and mob of Santhals as canal
was closed by the informant's father Bhujangi
Yadav(deceased) by erecting bandh.
(2) The erection of bandh on the canal, by informant
party lead to obstruction of flow of water towards
the Santhals village.
(3) The aforesaid canal was Government canal and
water in the said canal came from Sunder Dam.
(4) The mob of Santhals came and cut the bandh
erected by the informant's father as a result
altercation took place between the parties in which
Bhujangi Yadav, died by an arrow shot on his
chest.
38. Learned counsel for the appellants has mainly taken
the ground that informant party since had closed the
canal, so Santhals were not getting water, therefore
mob of Santhals came, shoot arrows and cut the closed
canal. The learned senior counsel, in the alternative,
has argued that even accepting the prosecution version
to be correct, then also it is not a case said to be made
out against the appellants under section 302 IPC,
rather at best the case under section 304 Part-II will be
made out.
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39. This Court, in order to appreciate the submissions
advanced on behalf of appellants with respect to the
culpability of the appellants for 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.
40. 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
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Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi
Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC
32] ,para 12, this Court held as under: (SCC p. 41) "12.
Referring to these observations, Division Bench of this
Court in Jagrup Singh case [Jagrup Singh v. State of
Haryana, (1981) 3 SCC 616], observed thus: (SCC p.
620, para 7) „7. ... These observations of Vivian Bose, J.
have become locus classicus. The test laid down in Virsa
Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC
465], for the applicability of clause Thirdly is now
ingrained in our legal system and has become part of the
rule of law.‟ The Division Bench also further held that
the decision in Virsa Singh case [Virsa Singh v. State of
Punjab, AIR 1958 SC 465] has throughout been followed
as laying down the guiding principles. In both these
cases it is clearly laid down that the prosecution must
prove (1) that the body injury is present, (2) that the
injury is sufficient in the ordinary course of nature to
cause death, (3) that the accused intended to inflict that
particular injury, that is to say it was not accidental or
unintentional or that some other kind of injury was
intended. In other words clause Thirdly consists of two
parts. The first part is that there was an intention to
inflict the injury that is found to be present and the
second part that the said injury is 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
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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."
41. In the case of State of Andhra Pradesh v.
Rayavarapu Punnayya, (1976) 4 SCC 382, the
Hon'ble Apex Court, while clarifying the distinction
between section 299 and 300 of the Indian Penal Code
and their consequences, held as under: --
"12. In the scheme of the Penal Code, "culpable homicide‟
is genus and „murder‟ is species. All "murder‟ is
"culpable homicide‟ but not vice-versa. Speaking
generally, "culpable homicide not amounting to murder.
For the 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
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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.
42. 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,
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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
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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 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
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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 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
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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 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
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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.‖
43. 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 Penal Code,
1860? or
(ii) Whether the case is said to be covered under the
exception to Section 300 of the Penal Code, 1860?
or
(iii) Whether on the basis of factual aspect, the case
will come under the purview of Part 1 of Section
304 or Part 2 thereof? Or
(iv) Whether the appellant is entitled for acquittal in
absence of cogent evidences?
44. Since, all the aforesaid issues are inextricably
interlinked, the same are being discussed and decided
hereinbelow together.
45. 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
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cause death, commits the offence of culpable homicide.
Thus, Section 299 defines the offence of culpable
homicide which consists in the doing of an act - (a) with
the intention of causing death; (b) with the intention of
causing such bodily injury as is likely to cause death;
(c) with the knowledge that the act is likely to cause
death. Hence, intention 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 knowledge or
the likelihood of the death of the person.
46. 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 Section 304-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
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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.
47. 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 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."
48. 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
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the offence of culpable homicide or murder as the case
may be.
49. 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.
50. 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.
51. 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
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accused concerned can be charged under that provision for
an offence of culpable homicide not amounting to murder
and when being so charged if it is alleged that the act of the
accused concerned is done with the knowledge that it is
likely to cause death but without any intention to cause
death or to cause such bodily injury as is likely to cause
death the charged offences would fall under Section 304
Part II. However before any charge under Section 304 Part
II can be framed, the material on record must at least prima
facie show that the accused is guilty of culpable homicide
and the act allegedly committed by him must amount to
culpable homicide. However, if the material relied upon for
framing such a charge against the accused concerned falls
short of even prima facie indicating that the accused
appeared to be guilty of an offence of culpable homicide
Section 304 Part I or Part II would get out of the picture. In
this connection we have to keep in view Section 299 of the
Penal Code, 1860 which defines culpable homicide. It lays
down that: "Whoever causes death by doing an act with the
intention of causing death, or with the intention of causing
such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death,
commits the offence of culpable homicide." Consequently the
material relied upon by the prosecution for framing a charge
under Section 304 Part II must at least prima facie indicate
that the accused had done an act which had caused death
with at least such a knowledge that he was by such act
likely to cause death. ---"
52. 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
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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.
53. 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
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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.
54. 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.
55. It is, thus, evident that the parameters which are to
be followed while convicting a person of commission of
crime of murder will be different if the murder comes
under fold of culpable homicide amounting to murder
and it will be different if with the intent to commit
murder as per the outside purview of exception carved
out under Section 300 of the Indian Penal Code.
56. This Court after taking into consideration the law
laid down by Hon'ble Apex Court more particularly in
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the case of Andhra Pradesh (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.
Re: Cr. Appeal (DB) No. 247 of 1997(DB)
57. Now, coming to the case in hand, appellants
Yadunandan Hembrom and Khaddi Kishku, were
convicted under section 302 of IPC, out of which
Khaddi Kisku has died. Hence, this Court is now
proceeding to examine the conviction of surviving
appellant Yadunandan Hembrom under section 302 of
IPC.
58. PW-1, PW-2. PW-3 and informant PW-5 have been
projected as an eye-witness to the killing of Bhujangi
Yadav. Hence, testimony of these witnesses before the
trial court has to be appraised to find out the guilt or
innocence of the appellant Yadunandan Hembrom for
his conviction under section 302 of IPC.
59. In his evidence P.W-1 Upendra Yadav has stated that
on the day of occurrence deceased Bhujangi Yadav was
watering his maize crop and he was at a distance of 100
yards from Bhujangi Yadav and was looking his onion
farm. In the meantime, Khaddi Kisku and Yadunandan
Hembram, shot arrow which hit Bhujangi Yadav chest
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as a result Bhujangi fell down. Further, P.W-2 Biranchi
Yadav, has stated in his evidence that he was looking
his onion farm and was at distance of 15 cubit from the
accused persons, when Khaddi Kisku and Yadunandan
Hembram, shot arrow which hit on the chest of
Bhujangi Yadav. PW-3 Saryug Yadav has also stated in
his evidence that arrow was shot by Khaddi Kisku and
Yadunandan Hembram, which hit on the chest of
Bhujangi Yadav and he had seen Bhujangi falling down
from a distance of 130 yards, from his farm. Further,
P.W-5 Informant has also deposed that on the day of
occurrence, he was irrigating his farm along with his
father Bhujangi Yadav, when Khaddi Kisku and
Yadunandan Hembram had shot arrow which pierced
into Bhujangi Yadav chest.
60. Hence, as per deposition of P.W-1 Upendra Yadav,
P.W-2 Biranchi Yadav, PW-3 Saryug Yadav and P.W-5
Informant, we find that all these witnesses were present
at the place of occurrence and had seen Yadunandan
Hembram shot arrow which hit on the chest of
Bhujangi Yadav.
61. Now, coming to the medical evidence of P.W-8 Dr.
Ajay Kumar Jha, who had conducted postmortem
examination on the dead body of the deceased Bjujangi
Yadav. Doctor has stated in his evidence that on
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04.04.1995, he had conducted postmortem
examination on the dead body of the deceased Bhujangi
Yadav and had found two arrows deeply embedded in
chest wall. Doctor had found two punctured wounds
and one lacerated wound on the person of the deceased-
(i) punctured wound 1‟‟x1/2‟‟ communicating inside right side of
chest with arrow in situ, situated in first entercostal space just
lateral to sternum
(ii) punctured wound 1‟‟x1/2‟‟ communicating inside the chest on
leftt side in 4th entercostal space just lateral to sternum and
(iii) Lacerated injury 1‟‟x1‟‟ on right side of front of chest in third
entercostal space.
Doctor opined that death was due to hemorrhage and
shock due to injuries caused by arrow.
62. Hence, homicidal death of Bhujangi Yadav caused
due to arrow shot, by the appellant Yadunandan
Hembram is proved by the ocular evidence of P.W-1,
P.W-2, P.W-3 and informant P.W-5, which is
corroborated by the medical evidence of P.W-8 Dr. Ajay
Kumar Jha, wherein doctor has opined the cause of
death due to hemorrhage and shock due to injuries
caused by arrow.
63. Further, 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
examination-in-chief has uttered a word that there was
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previous enmity between the parties rather it has come
in the evidence that flow of water in the Government
canal was obstructed by the deceased by erection of
bandh as a result altercation took place between both
the parties due to which appellant Yadunandan
Hembram shot arrow which hit on the chest of the
deceased resulting in death of Bhujangi Yadav.
64. From the aforesaid, it appears that there was no
premeditation on the part of the appellant Yadunandan
Hembram to cause the alleged act. P.W-2 and P.W-3 are
eye witnesses to the killing of deceased and P.W-2 at
para -6 of his cross-examination and P.W-3 at para-4(a)
of his cross-examination, has deposed that accused
persons had come without raising alarm and they cut
the bandh. Hence, from the testimony of P.W-2 and PW-
3, it is clear that there was no pre- mediation of mind
for the killing of the deceased. Only objective of the mob
including the appellants was to cut the bandh, which
was erected by the informant party and only when
altercation took place between the parties, appellant
shot arrow which resulted in death of the deceased.
65. Therefore, from the genesis and manner of offence, it
can be well inferred that there was no intention on the
part of the appellant Yadunandan Hembram to kill the
deceased and also there was no intention to shot arrow
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and causing the particular injury on the person of
deceased but at the same time it can be inferred that it
was within the knowledge of appellant Yadunandan
Hembram that his act was likely to cause an injury and
which would likely to cause death of the deceased.
66. 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
Yadunandan Hembram was not a premeditated and
intentional.
67. Therefore, we are of the considered view that the
present case squarely falls under the Section 304 part-II
of the IPC.
Re: Cr. Appeal (DB) No. 184 of 1997(DB)
68. Now, this court is proceeding to examine the guilt or
innocence of the surviving appellants in Cr. Appeal (DB)
No. 184 of 1997(DB). So, far as appellants under Cr.
Appeal (DB) No. 184 of 1997(DB), are concerned, there
was originally nine appellants out of which three died
during the pendency of the appeal, leaving behind six
surviving appellants namely Shivcharan Hembrom,
Surendar Hembrom, Etwari Hembrom alias Etwari, Tej
Narain Hembrom alias Hansda, Sahebram Hembrom
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and Marang Kisku and all these appellants were
convicted by the learned trial court under section 302
with aid of section 34 IPC.
69. Before delving into the evidence on record on point of
common intention and addressing the rival contentions
in this regard as made by the parties, we wish to
reiterate the precise nature, purpose and scope of
Section 34 Indian Penal Code.
70. To apply Section 34 IPC apart from the fact that
there should be two or more accused, two factors must
be established: (i) common intention and (ii)
participation of the accused in the commission of an
offence. If a common intention is proved but no overt
act is attributed to the individual accused, Section 34
will be attracted as essentially it involves vicarious
liability but if participation of the accused in the crime
is proved and a common intention is absent, Section 34
cannot be invoked. In every case, it is not possible to
have direct evidence of a common intention. The
existence of a common intention can be inferred from
the attending circumstances of the case and the
conduct of the parties. Reference in this regard may be
taken from judgment as rendered by the Hon'ble Apex
Court in the case of Bengai Mandal v. State of Bihar,
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reported in (2010) 2 SCC 91 wherein at paragraph 13
it has been held as under:-
―13. Thus, the position with regard to Section 34 IPC is
crystal clear. The existence of common intention is a
question of fact. Since intention is a state of mind, it is
therefore very difficult, if not impossible, to get or
procure direct proof of common intention. Therefore,
courts, in most cases, have to infer the intention from
the act(s) or conduct of the accused or other relevant
circumstances of the case. However, an inference as to
the common intention shall not be readily drawn; the
criminal liability can arise only when such inference
can be drawn with a certain degree of assurance.‖
71. Further the Hon'ble Apex Court in the case of Girija
Shankar v. State of U.P. ,(2004) 3 SCC 793, while
bringing out the purpose and nature of Section 34 IPC
observed in para 9, as follows:-
"9. Section 34 has been enacted on the principle of joint
liability in the doing of a criminal act. The section is only
a rule of evidence and does not create a substantive
offence. The distinctive feature of the section is the
element of participation in action. The liability of one
person for an offence committed by another in the course
of criminal act perpetrated by several persons arises
under Section 34 if such criminal act is done in
furtherance of a common intention of the persons who
join in committing the crime. Direct proof of common
intention is seldom available and, therefore, such
intention can only be inferred from the circumstances
appearing from the proved facts of the case and the
proved circumstances. In order to bring home the charge
of common intention, the prosecution has to establish by
evidence, whether direct or circumstantial, that there
was plan or meeting of minds of all the accused persons
to commit the offence for which they are charged with the
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aid of Section 34, be it prearranged or on the spur of the
moment; but it must necessarily be before the
commission of the crime. The true concept of the section
is that if two or more persons intentionally do an act
jointly, the position in law is just the same as if each of
them has done it individually by himself. As observed in
Ashok Kumar v. State of Punjab [(1977) 1 SCC 746] the
existence of a common intention amongst the participants
in a crime is the essential element for application of this
section. It is not necessary that the acts of the several
persons charged with commission of an offence jointly
must be the same or identically similar. The acts may be
different in character, but must have been actuated by
one and the same common intention in order to attract
the provision."
72. Thus, it is evident that the inference regarding
applicability of Section 34 of the IPC to be drawn from
the manner of the origin of the occurrence, the manner
in which the accused arrived at the scene and the
concert with which attack was made and from the
injuries caused by one or some of them. The criminal
act actually committed would certainly be one of the
important factors to be taken into consideration but
should not be taken to be the sole factor. The essence of
liability under Section 34 IPC is simultaneous
conscious mind of persons participating in the criminal
action to bring about a particular result. Minds
regarding the sharing of common intention gets
satisfied when an overt act is established qua each of
the accused. Common intention implies pre-arranged
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plan and acting in concert pursuant to the pre-
arranged plan. Common intention is an intention to
commit the crime actually committed and each accused
person can be convicted of that crime, only if he has
participated in that common intention. In Jarnail
Singh vs. State of Punjab; AIR 1982 SC 70, the Apex
Court held that since there was no pre-concert between
the accused persons nor a meeting of minds between
them before the offence took place, the conviction of the
accused under Section 302/34 IPC was bad and since
the accused merely gave a token blow on the ear and
caused simple injuries, the conviction was altered to
one under Section 324 Indian Penal Code.
73. In the backdrop of the aforesaid judicial decisions,
and evidence of prosecution witnesses, this Court has
to examine the culpability of appellants as passed by
the learned trial court.
74. Dispute between the parties arose due to erection of
bandh on the Government canal by the informant party
which resulted in obstruction in flow of water to the
Santhals village. Hence, mob of Santhals had gathered
and cut the bandh. In the fardbeyan as well as in the
evidence of the prosecution witnesses it is alleged that
one or the other appellants herein were armed with
arrows, bhalla, garasha, kudal. There is also allegation
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on the appellant Marang Kisku that he had exhorted to
kill.
75. On going to the evidence of P.W-1 Upendra Yadav,
who is also an eye witness to the shooting of arrow on
deceased, but, apart from appellants Khaddi Kisku and
Yadunandan Hembram, he has not taken specific name
of any of the appellants herein. This is also evident from
para-7 of his cross-examination, wherein P.W-1 has
deposed that he had seen mob of 50-60 persons armed
with lathi, bhalla, bow and arrow. Hence, we find that
P.W.-1 is through an eye witness, but, he has not
disclosed any specific name of the appellants herein in
assaulting the deceased other than Khaddi Kisku and
Yadunandan Hembram.
76. Likewise, other material witness P.W-2, P.W-3 and
informant P.W-5 have only reiterated that these
appellants were armed with weapon. But, from the
evidence on record, it is clear that appellants herein,
had not caused any injury to the deceased or any of the
informant party. If these appellants had any intention
to cause harm to the informant party, they would have
probably done so easily as Santhals mob including the
appellants were large in number, but this is not the
case in hand. Even, ongoing through the postmortem
report of the deceased, we find that apart from two
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punctured wound and one lacerated injury, doctor had
not found any other ante-mortem injuries on the person
of the deceased and these injuries are attributed to
appellant Yadunandan Hembram. Hence, postmortem
report also supports that no harm was caused to the
deceased, by these appellants otherwise, number of
injuries would have increased and this leads to
conclusion that prosecution has not been able to prove
any overt act on the part of these appellants.
77. Further, regarding the exhortation given by the
appellant Marang Kisku, in the evidence of P.W-1, P.W-
2 and P.W-5 it has come that appellant Marang Kisku,
in his Santhali dialect had exhorted to kill. But the
learned trial court did not appreciate that whether these
witnesses were capable of understanding of Santhali
dialect. Hence, allegation of exhortation given by
appellant Marang Kisku becomes doubtful.
78. Hence, from the aforesaid discussion and the judicial
pronouncement and the evidence of prosecution
witnesses and also taken into consideration the facts
and circumstances of the instant case we are of view
that appellants herein had no role in the killing of the
deceased. From the evidence of P.W-1, P.W-2 and P.W-5
it is evident that there was no pre-concert between the
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accused/appellants nor a meeting of minds between
them for causing the alleged offence.
79. Thus, in these circumstances, it cannot be said that
the appellants herein have acted in furtherance of
common intention to attract even constructive liability
under Section 34 Indian Penal Code.
80. In the absence of common intention, we are of the
view that convicting the appellants under section 302
with the aid of Section 34 IPC cannot be sustained.
81. Even, ongoing to the impugned judgment of
conviction, we find that no cogent reason has been
assigned by the learned trial court for convicting the
appellants in Cr. Appeal (DB) No. 184 of 1997(DB)
under section 302 with the aid of section 34 IPC.
Conclusion
82. Accordingly, on the basis of discussion made
hereinabove we are of the view that the judgment
impugned convicting the appellant Yadunandan
Hembram 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.
83. Consequently, the judgment passed by the learned
trial Court is modified and appellant Yadunandan
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Hembram is held guilty under Section 304 Part II of the
Indian Penal Code.
84. On the question of sentence, in the counter affidavit
filed by the state it is stated that appellant Yadunandan
Hembram has already suffered incarceration for about
two years and three months.
85. In the aforesaid circumstances, we are inclined to
modify the sentence of imprisonment of appellant
Yadunandan Hembram to the period already
undergone.
86. In view of the discussions made hereinabove,
judgment of conviction dated 25th April, 1997 and order
of sentence dated 29th April, 1997, passed by learned 1st
Additional Sessions Judge, Godda in Sessions Trial
No.140 of 1995/61 of 1995, so far as relates to Cr.
Appeal (DB) No. 247 of 1997(DB), is modified to the
aforesaid extent. Appellant Yadunandan Hembram is
discharged from the liability of bail bond.
87. Accordingly, Cr. Appeal (DB) No. 247 of 1997(DB)
stands dismissed with the aforesaid modification in the
judgment of conviction and order of sentence.
88. The impugned judgment of conviction and order of
sentence, so far as relates to Cr. Appeal (DB) No. 184 of
1997(DB), are hereby set aside. Appellants are
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discharged from the liabilities of their respective bail
bonds.
89. Cr. Appeal (DB) No. 184 of 1997(DB) is allowed.
90. Let the Trial Court Records be sent back to the Court
concerned forthwith, along with a copy of this
Judgment.
I Agree (Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.) (Rajesh Kumar, J.)
Jharkhand High Court, Ranchi
Alankar / A.F.R.
