Jharkhand High Court

Om Prakash Sah vs The State Of Bihar (Now Jharkhand) on 10 June, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Rajesh Kumar

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       IN THE HIGH COURT OF JHARKHAND AT RANCHI

                 Cr. Appeal (D.B) No. 112 of 1996 (P)
(Against the judgment of conviction dated 15.02.1996 and the order of
sentence dated 24.02.1996 passed by the learned Sessions Judge, Deoghar
in Sessions Case No. 65 of 1995)
                                   -----
1. Om Prakash Sah
2. Ramesh Prasad Sah.
All are the sons of Prem Ranjan Sah, resident of Jasidih Bazar, PS-Jasidih,
District-Deoghar                           ....... ...     Appellants
                                 Versus
The State of Bihar (now Jharkhand)             ...        ...    Respondent
                                  -------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
       HON'BLE MR. JUSTICE RAJESH KUMAR

                                  -------
For the Appellants    : Mr. Jitendra S. Singh, Advocate
For the State         : Mr. Pankaj Kumar Mishra, APP
For the Informant     : Mr. A.K. Kashyap, Sr. Advocate
                        Mr. Vijay Shankar Jha, Advocate
                                     ------

C.A.V on 24.04.2025                     Pronounced on10/06/2025

Per Sujit Narayan Prasad, J.

1. The instant appeal under section 374(2) of the Code of Criminal

Procedure is directed against the judgment of conviction dated 15.02.1996

and the order of sentence dated 24.02.1996 passed by the learned Sessions

Judge, Deoghar in Sessions Case No.65 of 1995 whereby and whereunder

the appellants, above-named, have been convicted under sections 302 and

307 of the Indian Penal Code and sentenced to undergo RI for life under

section 302 of the Indian Penal Code and RI for 5 years for the offence

under section 307 of the Indian Penal Code and both the sentences shall

run concurrently.

2. At the outset, it needs to mention here that one of the appellants-co-

convict, namely, Naresh Sah, had died during the pendency of the appeal 2025:JHHC:15117-DB

and vide order dated 26.03.2025 the present criminal appeal qua the

appellant, namely, Naresh prasad Sah stands abated.

Factual Matrix

3. The prosecution story in brief as per the allegation made in the

fardbayan by Devendra Sah @ Ravi Sah, the informant, reads as under:

4. The prosecution case was instituted on the fardbayan of Devendra Sah

recorded on 28.10.94 at 8.30 PM at Sadar Hospital, Deoghar, who alleged

that his shop known as Laxmi Cut-piece Centre was situated at Jasidih

Bazar, to the south of Durga temple and contiguous west to Bajrangbali

temple. On the occasion of Deepawali the informant and his brother with

the help of labourers, were getting the aforesaid shop cleaned. The

informant got his residential house at the upper storey of the shop, to the

contiguous east of the house of the informant, the house of his uncle Prem

Ranjan Sah was situated. In between both the houses, there was a joint

well and small stretch of land and the water of the same well was being

used by the informant and his uncle. Both of them had separate motors for

taking water from the well. The uncle of the informant drained stench

water from his house by constructing a drain from near the well. Some-

times, the dirt from the drain accumulated near the well and the dogs in

search of food, fell into the well. For cleaning the well on some previous

occasions, disputes had occurred between the family of the informant and

the family of his uncle.

5. It was further alleged by the informant that on the day of the occurrence

at about 5.30 PM he was sitting at his cloth shop, where his cousin

accused-Naresh, Ramesh and Om Prakash arrived and Naresh began to

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break the closed door, situated near the well. The informant came out from

his shop and protested, whereupon Ramesh ordered to assault. Accused

Naresh, thereafter, gave axe-blow upon the informant with intention to

kill, to which the informant caught by his right hand. He sustained injury

on his right palm. Accused Naresh gave another blow by means of axe on

the right thigh of the informant. Accused Ramesh and Om Prakash gave

rod-blows on the shoulder and back of the informant, who fell down and

raised alarm.

6. It was further alleged that the elder brother of the informant, namely,

Surendra Sah (deceased) rushed there from the shop to save the informant.

Accused Naresh by means of axe and the rest two accused by means of

iron-rods started assaulting Surendra, who caught the axe, but at the same

time accused Naresh took out a knife, to which he had kept concealed in

his waist, and pierced the same into the abdomen of Surendra, as a result

of which the entire intestine bulged out, and he fell down and became

unconscious. Accused Ramesh and Om Prakash, thereafter gave iron-rod-

blows upon Surendra. It was further alleged that by that time younger

brother of the informant, at the alarm, arrived at the place of occurrence to

whom all the three accused assaulted by means of their respective

weapons, who fell down and became unconscious.

7. At the alarm, raised by the informant, some neighbours, namely, Angrej

Yadav, Deepu Prasad, Tarini Yadav and others arrived and saw the

occurrence. The accused persons hurling threats in several ways, fled into

their houses. The persons, who had assembled, started taking the

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informant and his two brothers to hospital on a tempo. Deceased Surendra

succumbed to his injuries on the way to the hospital.

8. After investigation, the police submitted the charge sheet against the

appellants for the offences under sections 302/307 IPC and, thereafter, the

case was committed to the court of Sessions. The statements of the

appellants were recorded under Section 313 of Cr.P.C.

9. Accordingly, the trial proceeded and the appellants were found guilty

by the learned trial Court for the aforesaid offences referred hereinabove.

The aforesaid order of conviction and sentence is under challenge herein.

Submission of the learned counsel for the appellants:

10. Learned counsel for the appellant has taken the following

grounds for interfering with the finding recorded by the learned trial Court

in the impugned judgment:

(i) There is no specific attributability, as per the evidence adduced on

behalf of the prosecution, brought on record so far as the appellants,

namely, Om Prakash Sah and Ramesh Prasad Sah are concerned.

(ii) It has been contended that the specific attributability of overt act has

been alleged against the accused, Naresh Prasad Sah (now dead) who has

assaulted the deceased through a knife over stomach due to which the

deceased had died.

(iii) The ground therefore has been taken that since there is no specific

attributability against the appellants, namely, Om Prakash Sah and

Ramesh Prasad Sah, hence, no crime has been said to be committed by

these two appellants.

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(iv) The further ground has been taken that the conviction is only under

sections 302 and 307 of the Indian Penal Code without taking aid of section

34, as such, there cannot be any conviction against the present appellants,

namely, Om Prakash Sah and Ramesh Prasad Sah in absence of any

specific overt act said to be committed by these two appellants even if the

entire prosecution version will be taken into consideration in entirety.

(v) The argument has been advanced so far as the conviction under section

307 of the Indian Penal Code against these appellants, namely, Om

Prakash Sah and Ramesh Prasad Sah is concerned, it has been contended

that there is no injury report to establish the allegation of section 307 of

the Indian Penal Code so far as the injury said to be caused upon Devendra

Sah, PW3 is concerned.

(vi) The injury report of Kumar Ravinder @ Rabi Sah although is available

on record but as per the testimony of Rabi Sah who has been examined as

PW4 had deposed to have been assaulted over his leg, but if the injury

report of PW4 will be taken into consideration no injury has been found

by the doctor over the leg of the said witness. Therefore, there is

contradiction in the testimony of PW4 if it will be taken in to consideration

with the testimony of the doctor (PW5) who has examined him when he

was injured. Hence, it is also not a case of conviction under section 307 of

the Indian Penal Code.

(vii) The learned counsel for the appellants, based upon the aforesaid

grounds, has submitted that the judgment of conviction passed by the

learned trial Court convicting the appellants under section 302 and 307 of

the Indian Penal Code, therefore, is fit to be quashed and set aside.

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Submission of the learned senior counsel for the Informant and Addl.

Public Prosecutor for the State:

11. While defending the judgment of conviction and sentence, the

learned senior counsel appearing for the informant and the learned Addl.

Public Prosecutor appearing for the State has jointly argued by taking the

following grounds:

(i) The conviction so far as under section 302 of the Indian Penal

Code against the appellants, namely, Naresh Sah (now dead), Ramesh Sah

and Om Prakash does not suffer from an error, since, ample evidence has

been produced by the prosecution. However, he has admitted the fact after

going through the testimony of PW3, the informant, that the specific

attributability of commission of crime of murder of the deceased is upon

the accused-Naresh Sah since he is the person who has assaulted the

deceased with a knife over the stomach leading to opening of stomach and

subsequently, the deceased had died.

(ii) The argument has been advanced that even accepting the

aforesaid specific attributability said to be committed by Naresh Sah who

is no more and the instant appeal is abated so far the said Naresh Sah is

concerned, but even then the attributability committed by Ramesh Sah and

Om Prakash Sah who have assaulted the deceased, since the attributability

is there to attract the ingredient of section 302 of the Indian Penal Code,

hence, they are liable to be punished under section 302 of the Indian Penal

Code and, as such, the impugned judgment so far as the appellants,

namely, Ramesh Sah and Om Prakash Sah is concerned, the same does

not require any interference.

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(iii) The argument has been advanced that the ample material has

been produced by the prosecuting agency who established the case under

section 307 of the Indian Penal Code so far as the appellants, namely,

Ramesh Sah and Om Prakash Sah is concerned since the fact has come in

course of evidence produced by PW3, the informant, that he has brutally

been assaulted by these two appellants. However, he has admitted the fact

that there is no injury report so far as the injury sustained by PW3 is

concerned.

(iv) The argument has also been advanced that PW4 has supported

the prosecution version of sustaining assault by these two appellants and

to that effect injury report is also available showing the injury sustained by

him. Hence, the conviction so far as the appellants, namely, Ramesh Sah

and Om Prakash Sah under section 307 of the Indian Penal Code is

concerned, the same cannot be said to suffer from an error.

12. The learned senior counsel appearing for the informant and the

learned Addl. Public Prosecutor appearing for the State, based upon the

aforesaid premise, has submitted that the impugned judgment so far as the

appellant nos.2 and 3 is concerned, does not suffer from any error and does

not require any interference both under sections 302 and 307 of the Indian

Penal Code, hence the instant appeal is fit to be dismissed.

Response of opposition by the learned counsel appearing for the

appellants:

13. Mr. Jitendra Shankar Singh, the learned counsel appearing for

the appellants, in response, has submitted that the injury which has been

said to be sustained by PW3 and PW4 cannot be the basis of conviction

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under section 302 and 307 of the Indian Penal Code reason being that here

the conviction under section 302 of the Indian Penal Code is not with the

aid of section 34 of the Indian Penal Code and, as such, the specific

attributability of committing murder as per the definition of "murder" as

has been defined under section 300 is to be taken into consideration.

14. It has been submitted that the specific attributability of assaulting

with a knife over the stomach of the deceased is upon Naresh Sah (now

dead) and, as such, the penal offence under section 302 of the Indian Penal

Code is only being made out against him.

15. So far as the appellants, namely Ramesh Sah and Om Prakash

Sah is concerned merely because they have assaulted the deceased they

have been implicated in the case. It does not mean that these appellants

are also to be convicted under section 302 of the Indian Penal Code

without taking aid of section 34 of the Indian Penal Code and in the instant

case no charge has been framed under section 34 of the Indian Penal Code.

16. The argument has also been advanced that the conviction under

section 307 of the Indian Penal Code is not being attracted since there is

no injury report so far as the injury said to be sustained by PW3 is

concerned. However, he has submitted that he has also been treated in the

hospital but no such document has been brought on record to establish the

issue of injury so as to attract the penal offences said to be committed

under section 307 of the Indian Penal Code is concerned.

17. So far as the conviction under section 307 of the Indian Penal

Code against the appellant, namely, Om Prakash Sah is concerned, it

would be evident from testimony of PW3 that he has deposed to have

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sustained injury over his leg, but if the testimony of the doctor (PW5) who

has treated him will be taken in to consideration, then it would be evident

that no such injury has been found by the doctor over his leg.

18. The further argument has been advanced that so far as the injury

sustained by the deceased said to be given by these two appellants will

attract the offence under section 307 of the Indian Penal Code is

concerned, it has been submitted that the same has also not conclusively

been proved to attract the attributability said to be committed by these two

appellants so as to attract the offence under section 307 of the Indian Penal

Code is concerned.

19. On the basis of the aforesaid ground the learned counsel for the

appellants has contended that the argument made by the learned APP for

state is not fit to be acceptable.

Analysis

20. We have heard learned counsel for the parties, perused the

documents available on record as also the finding recorded by the trial

Court in the impugned judgment.

21. We have also gone through the testimonies of the witnesses as

available in the Trial Court Records as also the exhibits appended

therewith.

22. This Court, before considering the argument advanced on behalf

of the parties, is now proceeding to consider the testimonies of witnesses

which have been recorded by the learned trial Court.

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23. It is evident from record that in order to substantiate the case, the

prosecution had altogether examined 09 witnesses and they were PW1-

Angrej Yadav, PW2-Tarini Prasad Yadav, PW3-Devendra Sah

(informant), PW4- Kumar Ravindra @ Rabi Sah (injured witness), PW5-

Dr. P. Chandra who has examined PW4 (the injured witness), PW6- Dr.

M.A Sattar (the doctor who conducted postmortem examination over the

dead body), PW7- Rasool Alam, PW8-Vibhash Kumar Paul (the

Investigating Officer), and PW9-Mahadeo Prasad Ram.

24. The defence has also examined one witness as DW1-Md. Kamal

Khan who is a constable and formal in nature.

25. PW1-Angrej Yadav is said to be an eye witness who fully

supported the prosecution version. He has supported the factum of assault

upon the deceased by the accused-Naresh Sah (now dead) and present

appellants Om Prakash Sah and Ramesh Prasad Sah. He has deposed that

Naresh Sah who was holding an axe in his hand had assaulted first the

informant and when the deceased tried to save the informant, he assaulted

the deceased with an axe. When the deceased caught the axe then Naresh

Sah took out a knife from his waist and gave blow upon the abdomen and

chest of the deceased due to which the deceased fell down and lastly

succumbed to the injuries on the way to hospital.

26. In cross-examination, at para-5 he had stated that he conducted

his shop business on the drain belonging to the Railways, which was

situated by the side of the house of Surendra. He had Pan Gumti, which

was still present there. At рага-6 & 7 he has given the details about the

houses of the parties and about the place, where actually, the occurrence

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took place. He had also given the details about the door-planks, to which

the accused were breaking. At para no.8 he has specified that the

occurrence took place at the passage used to go to Station through the lane.

At para-9 he stated that he heard the alarms raised by Devendra. Again, at

para-10 he specified the place of occurrence and had stated that Ravi was

also assaulted at the same time by means of iron rod. At para-11 he stated

that Devendra had sustained rod-blows upon the back. Two accused had

given rod-blows upon Devendra and one accused hard assaulted him on

his thighs by the back portion of an axe.

27. PW2 in his examination-in-chief deposed as an eyewitness and

stated that on 28.10.1994 at about 5.30 PM, he was doing colouring job in

the shop of deceased Surendra. At the alarm he saw the accused persons,

who were breaking the door-planks. Debu protested for breaking the door,

whereupon Naresh, Prakash and one another accused assaulted Debu, who

fell down. Deceased Surendra rushed there to save, whereupon all the

three accused started assaulting him. Naresh gave axe-blow, to which

Surendra caught with his hand and two other accused, assaulted him by

means of iron rods. He had testified that Naresh gave knife blow in the

abdomen of the deceased Surendra, who fell down and other two accused,

thereafter, assaulted him by means of rods. He further deposed that Naresh

gave another knife-blow upon the chest of Surendra.

28. In his cross examination he had stated at para no.4 of the

testimony that at the time when he reached at the place of occurrence

accused persons were running away and Surendra and accused Naresh

injured, thereafter he deposed that both the parties had sustained Injuries.

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29. PW3 informant himself and has supported the entire occurrence.

He had stated that Naresh gave axe blow upon his head to which he caught

with his right hand as a result of which he sustained blow upon his right

palm. Again, Naresh gave axe blow which hit his left thigh. Om Prakash

and Ramesh assaulted him by means of iron rod on his back and shoulder.

He raised alarm whereupon his elder brother deceased Surendra rushed to

save him. The accused attacked the deceased. Naresh attempted axe blow

on the head of Surendra which he caught with his hand and Ramesh and

Om Prakash gave rod blows upon Surendra. He had further testified that

Naresh took out a knife from his waist and gave blows upon abdomen of

Surendra due to which his intestine came out and he fell down where upon

Naresh gave another knife blow upon the chest of Surendra who became

unconscious. Om Prakash and Ramesh again assaulted him by the means

of iron rod.

30. He further testified that on alarm his younger brother also arrived

there and he also was subjected to assault by all three accused. Naresh

gave axe blow upon his head and other two accused gave Iron Road blow

upon his shoulder and leg. At para 4 he specifically stated that Angrej

Yadav Tarini Deepu and others had arrived from the neighborhood.

31. The informant at para-5 of cross-examination had stated that in

arrived et Deoghar Hospital at 8.30 PM. Ravi Sah had arrived at the

hospital on a separate tempo at the same time. Ravi was unconscious, his

statements was not recorded. He was lying on the adjoining bed. Ravi

regained his consciousness in the morning of the next day. At para-11 he

deposed that for 1-1/2 minutes scuffle had taken place, and thereafter, all

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the three accused started assault. He was twice assaulted by means of an

axe and when he fell down, he was subjected to assault by means of iron

rod. At para-12 he had stated that Surendra(deceased) arrived after he fell

down. At para-15 he stated that at the arrival of Surendra, the accused

released him and started assault on Surendra. Ravi also arrived. At para-

14 he stated that all the three accused assaulted Ravi, who sustained blow

on the legs and back.

32. PW4 in the brother of the informant and another injured in this

case. He stated that on 28.10.94 at about 5.30 PM., he was getting upper

portion of his house cleaned for Deepawali, where he heard the alarm of

his elder brother Devendra. He arrived at the place of occurrence and saw

all the three accused assaulting Surendra. He specifically stated the Naresh

gave axe blows upon Surendra, who caught the axe. Accused Naresh,

thereafter, took out a knife from his waist and pierced in the abdomen of

Surendra, who fell down. Accused Naresh (since dead) gave another

knife-blow on the chest of Surendra and other two accused gave blow of

iron rod. At para-2 he has specified that Om Prakash and Ramesh gave

rod-blows and Naresh gave axe-blow upon him. He had sustained two axe-

blows. He had sustained rod-blows in his leg. He fell down and become

unconscious.

33. At para-2 this witness had stated that he regained his

consciousness at Sadar Hospital, Deoghar on the next day. In course of

treatment, it was detected that his leg had fractured. At para-5 he stated

that by means of the axe he was twice assaulted. Naresh was armed with

axe. He never stated to the investigating officer that Ramesh was armed

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with an axe. He further stated that by the time he arrived at the place of

occurrence Surendra was standing. At para-7 he stated that the rod, by

means of which Surendra was assaulted, was 2 and ½ feet in length.

34. PW5- Dr. P. Chandra has examined PW4-Rabi Sah (informant),

the injured witness and found following injuries on his person;

(i) Sharp cut wound over the scalp 3 ½ "x ½" wide deep to scalp to bone 4"

above the right ear;

(ii) Lacerated wound over the scalp 3 ½ " x¼ x ½ " deep to bone about 4"

above the left ear;

(iii) Bruise of about 1" x ½ " over lower ¼ th of left upper arm, outer side;

iv) Bruise over the base of the right thumb, dorsal side, ½ "x ½".

35. According to the doctor, time elapsed since the examination of

the injured was within six hours. According to the doctor, injury no.(i) was

caused by sharp-cutting weapon, may-be an axe, and the rest injuries were

caused by hard and blunt substance. The doctor further opined that injuries

nos. (iii) and (iv) were simple in nature and injuries nos. (i) and (ii) were

dangerous to life.

36. PW6-Dr. M.A Sattar is the doctor, who conducted the post-

mortem examination over the dead body of Surendra Sah. The doctor

found the following ante-mortem injuries:

(i) Sharp-pointed stab injury 2" above left nipple 1 medially on probing laterally downwards into the left chest cavity 5" deep size 2 ½ x ½ "

x 5" with blood clots;

(ii) Sharp cutting injury-3 ½" left lateral to umbilicus loop of intestine coils out on the abdomen - Horizontal injury - 5 ½ x 2" x abdomen deep with blood clots;

(iii) Hematoma on back of head, upper part in the middle - 2 ½ " x 1 ½ "

x ½ " - blackish;

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(iv) Single bruise mark on left upper arm on deltoid muscle-horizontally

- 3"x ½ " blackish red;

(v) Two bruise sarks on the back in the middle-right to left diagonal -

above downward 8" x 1" - 6" x 1"- blackish red in colour.

37. On dissection, the doctor found left fourth rib sharply cut at the

penetrating chest injury. The doctor found left lung as well as heart

ruptured due to sharp-pointed injury. He found chest cage full of blood

clots. According to the doctor, the death was due to hemorrhage and

shock, as a result of specially stab injury of chest associated with sharp cut

injury of abdomen.

38. PW7 is the Investigating Officer who has stated that on

information received through rumour, he entered Station Diary Entry No.

642 dated 28.10.94 and proceeded to Deoghar Hospital to verify the

Information. He found B.K. Paul (PW8) present in the Hospital from

before, who had recorded the fardbeyan (Ext.-4), on this basis of which

formal FIR (Ext.-5) was drawn up. At para-3 he specifically stated that

because Ravi Sah was unconscious, his statement could not be recorded.

At para no.4 he has described the place of occurrence and he had found

blood marks at the place of occurrence. At para-5 he had stated that he

found sign of cutting by means of axe at four places at the door situated

near the well.

39. PW8 is B.K. Paul, who has stated that on the basis of Station

Diary Entry No. 643 he proceeded to Deoghar Hospital where he recorded

the statement of injured Devendra Sah.

40. PW9 is formal witness, who has only proved an application

(Exhibit-8).

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41. DW1 Md. Kamal Khan is formal witness, who has proved certain

entries from the Crime Register, maintained in the office of the DSP.

42. Learned trial Court, based upon the testimonies of witnesses, has

passed the judgment of conviction and has convicted the appellants under

Section 302/307 of Indian Penal Code and sentenced them to undergo

imprisonment for life for the offence under Section 302 of the IPC and

further Rigorous Imprisonment for 5 years for the offence under section

307 of the Indian Penal Code.

43. This Court, on the basis of aforesaid factual aspect vis-à-vis

argument advanced on behalf of parties, is now proceeding to examine the

legality and propriety of impugned judgment of conviction and order of

sentence by formulating following questions to be answered by this Court:

(I).Whether the prosecution has been able to prove the charge beyond all shadow of doubt?

(II).Whether the prosecution has been able to prove the charges leveled against the appellants as the fact of the given case is?

(III). Whether the present case comes under the fold of murder under section 300 IPC or attempt to murder under section 307 IPC?

44. Since all the issues are inter-linked with each other and as such

they are being taken together by taking into consideration the facts of the

given case including the testimony of witnesses.

45. This Court, in order to appreciate the submissions advanced on

behalf of the appellants with respect to the culpability of the appellant, for

commission of offence under Section 302 and 307 of the Indian Penal

Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit

and proper to refer certain legal provisions and judicial pronouncements

in context of contention raised by the appellant.

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46. In simple language, murder is an act of unlawfully causing the

death of another person. Further, the culpable homicide is murder, if the

act by which the death is caused is done with the intention of causing

death, or 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 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 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.

47. It needs to refer herein that Section 300 of the IPC states what

murder is and what murder is not. To consider an act of a person as an

offence of murder, it should come within the purview of clauses 1, 2, 3 or

4 of the Section 300 of the IPC, but should not come within any of the five

Exceptions enlisted in the Section.

48. If it falls within any of the Exceptions then it will become

Culpable Homicide not amounting to murder as defined under Section 299

IPC and will get a punishment for Culpable Homicide under Section 304

IPC.

49. If the death is caused without requisite intention to kill or

knowledge of likelihood of causing death on his part, the offence

committed would be hurt or its equivalent but not 'Murder'. Absence or

presence of intention is a determining factor. Further, if anyone does the

act with the knowledge that the act would likely to cause death because of

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some peculiar condition or state of poor health known to the offender then

the act is obviously murder. Such an act need not cause death to a person

who is not having such a peculiar condition, in the ordinary course of

event. Here intention to cause death is not an essential requirement

but intention of causing bodily injury itself coupled with the

knowledge that the injury is likely to cause death, is enough. If the person

does an act with the knowledge that the act is so imminently

dangerous which in all probability will cause death, then that is murder.

This will also apply to totally reckless and negligent actions having no

intention to cause any specific injury.

50. As discussed above that some murders are not treated as murders

if they come within the five exceptions described under Section 300.So

Section 300 covers both "Culpable Homicide amounting to Murder' and

'Culpable Homicide' not amounting to 'Murder'.

51. To find out whether a homicide is murder or not, the Court must

first fix whether the accused has done an act (omission / negligence) by

which he caused death of another. In the second stage, the Court should

consider whether the act amounts to Culpable Homicide under Section 299

IPC to find out whether it is a case of Culpable Homicide not amounting

to Murder. If the answer is yes, the Court should consider whether the act

of the accused come within the ambit of any of the four clauses of Section

300 IPC. If the act falls within any of the four clauses, then the Court

should check whether the case comes within any of the five Exceptions

described in the Section 300 IPC. If it comes then the offence would still

be Culpable Homicide but not Murder punishable under Section 304 Para

I. If, the case fits well within the four clauses in regard to intention to kill,

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knowledge of possibility death and definitiveness of death, it is a clear

case of murder. The Section 302 IPC provides punishment for murder.

52. At this juncture it would be apt to referred herein the Section 307

IPC which reads as under:

"307. Attempt to murder.--Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. Attempts by life convicts. --When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death.

53. The first part of Section 307 refers to "an act with such intention

or knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder". The second part of Section 307,

which carries a heavier punishment, refers to "hurt" caused in pursuance

of such an "act".

54. In "State of Maharashtra v. Balram Bama Patil", (1983) 2

SCC 28, the Hon'ble Apex Court has observed that it is not necessary that

a bodily injury sufficient under normal circumstances to cause death

should have been inflicted, for ready reference the relevant paragraph is

being quoted as under:

"9. ... To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the

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act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

(emphasis supplied)

55. In "State of M.P. v. Saleem", (2005) 5 SCC 554, the Hon'ble

Apex Court has held which reads as under:

"13. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The section makes a distinction between the act of the accused and its result, if any. The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, an accused charged under Section 307 IPC cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt."

56. In "Jage Ram v. State of Haryana", (2015) 11 SCC 366, the

Hon'ble Supreme Court has held that to establish the commission of an

offence under Section 307, it is not essential that a fatal injury capable of

causing death should have been inflicted, for ready reference the relevant

paragraph is being quoted as under:

"12. For the purpose of conviction under Section 307 IPC, the prosecution has to establish (i) the intention to commit murder; and (ii) the act done by the accused. The burden is on the prosecution that the accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident,

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motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given, etc."

57. It is evident from the aforesaid settled proposition of law that

proof of grievous or life-threatening hurt is not a sine qua non for the

offence under Section 307 of the Penal Code and the intention of the

accused can be ascertained from the actual injury, if any, as well as from

surrounding circumstances. Among other things, the nature of the weapon

used and the severity of the blows inflicted can be considered to infer

intent.

58. Thus, it is apparent that whoever does any act, with the intention

or knowledge, which may cause death and in furtherance to the said

intention and knowledge, he was doing an act towards it. However, it is

required to be seen by the evidence brought on record by the prosecution

whether the ingredients to prove, the case of prosecution beyond

reasonable doubt, the charge under Sections 307 IPC have been

established.

59. The essential difference between the offence punishable under

Section 307 IPC and Section 302 IPC is that the offence under section 307

IPC is not culpable homicide; the victim finally survives. What is required

by the prosecution to establish is that the accused had necessary intention

or knowledge that if successfully effected the alleged act would have

caused death. In "State of Maharashtra v. Kashirao", (2003) 10 SCC

434, the Hon'ble Apex Court has held as under;

"20. ....... "The essential ingredients required to be proved in the case of an offence under section 307 are:

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by, or in consequence of the act of the accused; and

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(iii) that such act was done with the intention of causing death; or that it was done with the intention of causing such bodily injury as: (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death, or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death, or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury."

60. In the backdrop of the aforesaid settled proposition of law, now

we are adverting to the facts of the case in hand in order to find out whether

the causing of death of deceased by the appellants comes under murder or

not, by applying the four clauses coming under the Section 300 of the IPC.

61. Admittedly, the homicide of Surendra Sah had been caused in

the instant case. It has been alleged herein by the prosecution that on some

previous occasions, disputes had occurred between the family of the

informant and the family of his uncle and on the day of the occurrence at

about 5.30 p.m. he was sitting at his cloth shop, where his cousin accused

Naresh (since dead) Ramesh and Om Prakash (appellants herein) arrived

and Naresh began to break the closed door, situated near the well. The

informant came out from his shop and protested, whereupon Ramesh

ordered to assault. Accused Naresh, thereafter, gave axe-blow upon the

informant with intention to kill, to which the informant caught by his right

hand. He sustained injury on his right palm. Accused Naresh gave another

blow by means of axe on the right thigh of the informant. Accused Ramesh

and Om Prakash gave rod-blows on the shoulder and back of the

informant, who fell down and raised alarm.

62. It was further alleged that the elder brother of the informant,

namely, Surendra Sah (deceased) rushed there from the shop to save the

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informant. Accused Naresh by means of axe and the rest two accused by

means of iron-rods started assaulting Surendra, who caught the axe, but at

the same time accused Naresh took out a knife, to which he had kept

concealed in his waist, and pierced the same into the abdomen of Surendra,

as a result of which the entire intestine bulged out, and he fell down and

became unconscious. Accused Ramesh and Om Prakash, thereafter gave

iron-rod-blows upon Surendra. It was further alleged that by that time

younger brother of the informant, at the alarm, arrived at the place of

occurrence to whom all the three accused assaulted by means of their

respective weapons, who fell down and became unconscious.

63. It had further been alleged that when alarm was raised by the

informant then some neighbours, namely, Angrej Yadav, Deepu Prasad,

Tarini Yadav and others arrived there and saw the occurrence. The

persons, who had assembled, started taking the informant and his two

brothers to hospital on a tempo but deceased Surendra succumbed to his

injuries on the way to the hospital.

64. Thus, as per the fardbayan, it is evident that there is categorical

accusation against the co-accused Naresh (since dead) wherein it has been

specifically alleged that accused Naresh by means of axe started assaulting

Surendra (deceased), who caught the axe, but at the same time accused

Naresh took out a knife, to which he had kept concealed in his waist, and

pierced the same into the abdomen of Surendra, as a result of which the

entire intestine of deceased bulged out, and he fell down and became

unconscious and thereafter co-accused Ramesh and Om Prakash

(appellants herein), gave iron-rod-blows upon Surendra ( deceased).

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65. Apparently, as per the fardbayan, so far, the complicity of the

present appellants is concerned there is allegation against that they had

given iron-rod-blows upon Surendra (deceased).

66. It needs to refer herein that the charges were framed by the

learned trial Court under Section 302 and 307 of the IPC against the

accused persons including the present appellants and the appellants have

been convicted under Section 302 and 307 of the IPC without taking aid

of the Section 34 of the Indian Penal Code.

67. It needs to refer herein that under the provisions of Section 34

the essence of the liability is to be found in the existence of a common

intention animating the accused leading to the doing of a criminal act in

furtherance of such intention. As a result of the application of principles

enunciated in Section 34, when an accused is convicted under Section 302

read with Section 34, in law it means that the accused is liable for the act

which caused death of the deceased in the same manner as if it was done

by him alone. The provision is intended to meet a case in which it may be

difficult to distinguish between acts of individual members of a party who

act in furtherance of the common intention of all or to prove exactly what

part was taken by each of them.

68. Thus, from the aforesaid settled position of law it is evident that

Section 34 has been enacted on the principle of joint liability in the doing

of a criminal act. The section is only a rule of evidence and does not create

a substantive offence. The distinctive feature of the section is the element

of participation in action. The liability of one person for an offence

committed by another in the course of criminal act perpetrated by several

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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.

69. 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 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.

70. The true contents of the section are that if two or more persons

intentionally do an act jointly, the position in law is just the same as if each

of them has done it individually by himself. The existence of a common

intention amongst the participants in a crime is the essential element for

application of this section. It is not necessary that the acts of the several

persons charged with commission of an offence jointly must be the same

or identically similar. The acts may be different in character, but must have

been actuated by one and the same common intention in order to attract

the provision.

71. Further, the burden lies on the prosecution to prove that actual

participation of more than one person for commission of criminal act was

done in furtherance of common intention of all at a prior concert. However,

it is not required for the prosecution to establish that there was a prior

conspiracy or premeditation; common intention can be found in the course

of occurrence.

72. To apply Section 34 apart from the fact that there should be two

or more accused, two factors must be established: (i) common intention,

and (ii) participation of the accused in the commission of an offence. If

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common intention is proved but no overt act is attributed to the individual

accused, Section 34 will be attracted as essentially it involves vicarious

liability. But if participation of the accused in the crime is proved and

common intention is absent, Section 34 cannot be invoked reference in this

regard may be taken from the judgment rendered by the Hon'ble Apex

Court in the case of "Jai Bhagwan v. State of Haryana", (1999) 3 SCC

102.

73. As held by the Constitution Bench of the Hon'ble Apex Court

in "Mohan Singh v. State of Punjab", AIR 1963 SC 174, common

intention denotes action in concert, and a prior meeting of minds--the acts

may be different, and may vary in their character, but they are all actuated

by the same common intention. However, prior concert in the sense of a

distinct previous plan is not necessary to be proved. The common intention

to bring about a particular result may well develop on the spot as between

a number of persons. Thus, the question as to whether there is any common

intention or not depends upon the inference to be drawn from the proven

facts and circumstances of each case. The totality of the circumstances

must be taken into consideration in arriving at the conclusion whether the

accused persons had the common intention to commit the offence with

which they could be convicted.

74. At this juncture it would be purposeful to reiterate the testimony

of prosecution witnesses in order to answer the issues as referred in the

preceding paragraphs.

75. PW1-Angrej Yadav is said to be an eye witness has supported

the factum of assault upon the deceased by the accused-Naresh Sah (now

dead) and present appellants Om Prakash Sah and Ramesh Prasad Sah. He

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had deposed that Naresh Sah who was holding an axe in his hand had

assaulted first the informant and when the deceased tried to save the

informant, he assaulted the deceased with an axe. When the deceased

caught the axe then Naresh Sah took out a knife from his waist and gave

blow upon the abdomen and chest of the deceased due to which the

deceased fell down and lastly succumbed to the injuries on the way to

hospital.

76. At para-9 this witness had stated that he heard the alarms raised

by Devendra(informant). Again, at par-10 he specified the place of

occurrence and had stated that Ravi also was assaulted at the same time by

means of iron rod. At para-11 he stated that Devendra had sustained rod-

blows upon the back. Two accused had given rod-blows upon Devendra

and one accused hard assaulted Devendra on his thighs by the back portion

of an axe.

77. Thus, it is evident from the testimony of this witness that Naresh

Sah (since dead) took out a knife from his waist and gave blow upon the

abdomen and chest of the deceased due to which the deceased fell down

and lastly succumbed to the injuries on the way to hospital.

78. PW2 is also an eyewitness of the alleged occurrence had stated

that Debu protested for breaking the door, whereupon Naresh, Prakash and

one another accused assaulted Debu, who fell down. Surendra

(deceased)rushed there to save, whereupon all the three accused started

assaulting him. Naresh gave axe-blow, to which Surendra caught with his

hand and two other accused, assaulted him by means of iron rods. He had

testified that Naresh gave knife blow in the abdomen of the deceased

Surendra, who fell down and other two accused, thereafter, assaulted him

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by means of rods. He further deposed that Naresh gave another knife-blow

upon the chest of Surendra. In his cross examination he had stated at para

no.4 of the testimony that at the time when he reached at the place of

occurrence accused persons were running away and Surendra and accused

Naresh injured, thereafter he deposed that both the parties had sustained

Injuries.

79. Thus, from the testimony of this witness it is evident that accused

Naresh (since dead) gave knife blow in the abdomen of the deceased

Surendra, who fell down and other two accused (appellant herein),

thereafter, assaulted him by means of rods. He further deposed that Naresh

gave another knife-blow upon the chest of Surendra and he further testified

that both the parties had sustained Injuries.

80. PW3 informant himself had stated that Naresh (since dead) gave

axe blow upon his head to which he caught with his right hand as a result

of which he sustained blow upon his right Palm. Again, Naresh gave axe

blow which hit his left thigh. Om Prakash and Ramesh (present appellants)

assaulted him by means of iron rod on his back and shoulder. He raised

alarm whereupon his elder brother Surendra (deceased) rushed to save

him, then Naresh attempted axe blow on the head of Surendra which he

caught with his hand and Ramesh and Om Prakash gave rod blows upon

Surendra. He had further testified that Naresh took out a knife from his

waist and gave blows upon abdomen of Surendra due to which his intestine

came out and he fell down where upon Naresh gave another knife blow

upon the chest of Surendra who became unconscious. Om Prakash and

Ramesh again assaulted him by the means of iron rod.

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81. He further testified that on alarm his younger brother also arrived

there and he also was subjected to assault by all three accused. Naresh gave

axe blow upon his head and other two accused gave Iron Road blow upon

his shoulder and leg. At para-11 he deposed that for 1-1/2 minutes scuffle

had taken place, and thereafter, all the three accused started assault. He

was twice assaulted by means of an axe and when he fell down, he was

subjected to assault by means of iron rod. At para-14 he stated that all the

three accused assaulted Rabi, who sustained blow on the legs and back.

82. Thus, this witness had also specifically stated about the

culpability of the accused Naresh (since dead) and had stated that Naresh

attempted axe blow on the head of Surendra which he caught with his hand

and Ramesh and Om Prakash gave rod blows upon Surendra. He had

further testified that Naresh took out a knife from his waist and gave blows

upon abdomen of Surendra due to which his intestine came out and he fell

down where upon Naresh gave another knife blow upon the chest of

Surendra who became unconscious. Om Prakash and Ramesh again

assaulted him by the means of iron rod.

83. PW4 is the brother of the informant had stated the Naresh gave

axe blows upon Surendra, who caught the axe. Accused Naresh, thereafter,

took out a knife from his waist and pierced in the abdomen of Surendra,

who fell down. Accused Naresh gave another knife-blow on the chest of

Surendra and other two accused gave blow of iron rod. At para-2 he has

specified that Om Prakash and Ramesh gave rod-blows and Naresh gave

axe-blow upon him. He had sustained two axe-blows. He had sustained

rod-blows in his leg. He fell down and become unconscious. At para-5 he

stated that by means of the axe he was twice assaulted. Naresh was armed

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with axe. He never stated to the investigating officer that Ramesh was

armed with an axe.

84. Thus, from the testimonies of the aforesaid witnesses it is evident

that Naresh (since dead) was the person who was instrumental in causing

death of deceased by means of assault of axe, made by him upon the

deceased. All the aforesaid witnesses unanimously stated that Naresh

(since dead) was the person who gave axe blows upon Surendra(deceased)

and thereafter took out a knife from his waist and pierced in the abdomen

of Surendra, and further accused Naresh gave another knife-blow on the

chest of Surendra. Therefore, it is evident that the present appellants had

not inflicted any fatal blow on the body of the deceased.

85. It will not be out of place to mention here the testimony of the

doctor (PW6) who had conducted post-mortem upon the body of deceased

Surendra. The doctor found the following ante-mortem injuries:

"Sharp-pointed stab injury 2" above left nipple 1 medially on probing laterally downwards into the left chest cavity 5" deep size 2 ½ x ½ " x 5" with blood clots;

Sharp cutting injury-3 ½" left lateral to umbilicus loop of intestine coils out on the abdomen - Horizontal injury - 5 ½ x 2" x abdomen deep with blood clots;

Hematoma on back of head, upper part in the middle - 2½"x1½"

x ½ " - blackish;

Single bruise mark on left upper arm on deltoid muscle-horizontally - 3"x ½ " blackish red;

Two bruise sarks on the back in the middle-right to left diagonal - above downward 8" x 1" - 6" x 1"- blackish red in colour.

86. On dissection, the doctor found left fourth rib sharply cut at the

penetrating chest injury. The doctor found left lung as well as heart

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ruptured due to sharp-pointed injury. He found chest cage full of blood

clots. According to the doctor, the death was due to hemorrhage and

shock, as a result of specially stab injury of chest associated with sharp

cut injury of abdomen.

87. As per this witness death was caused due to hemorrhage and

shock, as a result of specially stab injury of chest associated with sharp cut

injury of abdomen. Thus, from the aforesaid finding of doctor it is evident

that the statement of the all the witnesses has fully been substantiated by

the medical evidence. Further all the witnesses have also stated that the

present appellant had assaulted the deceased with iron rod and the doctor

P.W.6 has also found the stab injury upon the body of deceased proved

fatal for the deceased. Therefore, it is apparent that death/homicide of

Surender(deceased) was caused by the Stab injury which was made by the

Naresh (since dead) with knife. So far, the role of present appellants is

concerned it has come on the record that they had assaulted the deceased

with iron rod but the doctor (P.W.6) has found the stab injury which proved

fatal to the deceased and the doctor has nowhere stated that the fatal

injuries were caused by iron rod.

88. Further, since the charges were not framed with the aid of the

Section 34 IPC as such the culpability of accused/appellants will be

assessed regarding the alleged act done by them in their individual

capacity, therefore on the basis of aforesaid discussion it is the considered

view of this Court that the case under Section 302 of IPC is not made out

against the present appellants and the said view has been based upon the

Medical evidence wherein it has come that death was caused due to stab

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injury inflicted by knife and as per the testimony of the witnesses, the

stab injury upon deceased was caused by the Naresh (since dead).

89. So far, the accusation under Section 307 of the IPC against the

present appellants is concerned the testimony of PW5 who had examined

the injured witness namely Rabi Sah has very much importance and the

same has been referred as under:

(i) Sharp cut wound over the scalp 3 ½ "x ½" wide deep to scalp to bone 4" above the right ear;

(ii) Lacerated wound over the scalp 3 ½ "x ½ " deep to bone about 4"

above the left ear;

(iii) Bruise of about 1" x ½ " over lower ¼ th of left upper arm, outer side;

iv) Bruise over the base of the right thumb, dorsal side, ½ "x ½".

90. According to this witness, injury no.(i) was caused by sharp-

cutting weapon, may-be an axe, and the rest injuries were caused by hard

and blunt substance. The doctor further opined that injuries nos. (iii) and

(iv) were simple in nature and injuries nos. (i) and (ii) were dangerous to

life.

91. At this juncture it would be apt to reiterate the testimony of

injured witness P.W.4 namely Rabi Sah who had testified that Om Prakash

and Ramesh gave iron rod-blows and Naresh (since dead) gave axe-blow

upon him. He had sustained two axe-blows. He had sustained rod-blows

in his leg. He fell down and become unconscious. At para-2 this witness

had stated that he regained his consciousness at Sadar Hospital, Deoghar

on the next day. In course of treatment, it was detected that his leg had

fractured. At para-5 he stated that by means of the axe he was twice

assaulted. Naresh was armed with axe. He never stated to the investigating

officer that Ramesh was armed with an axe.

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92. This witness had specifically stated that Naresh (since dead) was

armed with axe and Om Prakash and Ramesh (present appellants) gave

iron rod-blows. He further testified that Naresh (since dead) gave axe-blow

upon him due to which he had sustained two axe-blows. He further

testified that had sustained rod-blows in his leg. However as per the

testimony of P.W.5 he had not found any sign of injury on leg of this

witness but at the same time he had stated that injury no.(i) was caused by

sharp-cutting weapon, may-be an axe, and the rest injuries were caused by

hard and blunt substance. The doctor further opined that injuries nos. (iii)

and (iv) were simple in nature and injuries nos. (i) and (ii) were dangerous

to life.

93. Thus, it is evident that the injury no(i) has no concern with the

present appellant reason being that the same is caused by sharp weapon

like axe and as per the testimony of injured eyewitness PW4 it had been

caused by an axe blow given by Naresh (since dead). So far injury no.(ii)

is concerned, it has been opined by PW5 that the same was caused by hard

and blunt substance which was dangerous to life.

94. It needs to refer herein that the testimony of PW4 has been

substantiated by the other witnesses particularly PW3 informant who had

testified that on alarm his younger brother (PW4) also arrived there and he

also was subjected to assault by all three accused. Naresh (since dead) gave

axe blow upon his head and other two accused gave Iron Rod blow upon

his shoulder and leg. At para-11 he deposed that for 1-1/2 minutes scuffle

had taken place, and thereafter, all the three accused started assault. He

was twice assaulted by means of an axe and when he fell down, he was

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subjected to assault by means of iron rod. At para-14 he stated that all the

three accused assaulted Rabi, who sustained blow on the legs and back.

95. It is apparent from the aforesaid discussion that PW3 had

substantiated the occurrence of assault which has been alleged to be made

by the present appellant upon the PW4 but at the same time the place of

assault in respect to the body part of the injured witness has not been fully

substantiated by the testimony of PW3. Further as per the medical

evidence there was no injury on leg of the PW4, however the factum of

assault which was made by the present appellants have fully been

established by the prosecution. As per the testimony of PW5 it has come

on record that injury no. (iii) and (iv) were simple in nature may be caused

by hard and blunt substance and this finding has been supported or

corroborated by the other witnesses.

96. Thus, on the basis of the aforesaid discussion and legal

proposition this Court has revisited the core of Section 307 of IPC in order

to find out that whether the alleged act of present appellants will come

under the purview of attempt to murder.

97. It needs to refer herein that it is sufficient to justify a conviction

under Section 307 if there is present an intent coupled with some overt act

in execution thereof. It is not essential that bodily injury capable of causing

death should have been inflicted. Although the nature of injury actually

caused may often give considerable assistance in coming to a finding as to

the intention of the accused, such intention may also be deduced from other

circumstances, and may even, in some cases, be ascertained without any

reference at all to actual wounds.

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98. The section 307 of IPC makes a distinction between the act of

the accused and its result, if any. The court has to see whether the act,

irrespective of its result, was done with the intention or knowledge and

under the circumstances mentioned in the section. An attempt in order to

be criminal need not be the penultimate act. It is sufficient in law, if there

is present an intent coupled with some overt act in execution thereof.

99. Applying the aforesaid underlying principle in fact of the present

case it is evident that PW4 i.e. injured eyewitness himself had stated that

assault was made upon him by these appellants on leg and shoulder part of

his body. Further as per testimony of PW5, injury no. (iii) and (iv) were

simple in nature and the injury no. (i) is grievous in nature which was

caused by axe blow alleged to be given by co-accused Naresh (since dead).

So far, the injury no.(ii) which was grievous in nature, the genesis of the

said injury cannot be attributed to the present appellants reason being that

the PW4 himself had stated that he was assaulted twice upon head by the

axe, as such the genesis of the said injury no.(ii) cannot be fully ascertained

and attributed to these appellants beyond reasonable doubt.

100. It needs to refer herein that the Hon'ble Apex Court in catena of

decision has propounded the proposition that in the criminal trial, there

cannot be any conviction if the charge is not being proved beyond all

reasonable doubts, as has been held in the case of "Rang Bahadur Singh

& Ors. Vrs. State of U.P.", (2000) 3 SCC 454, wherein, at paragraph-22,

it has been held as under:-

"22. The amount of doubt which the Court would entertain regarding the complicity of the appellants in this case is much more than the level of reasonable doubt. We are aware that acquitting the accused in a case of this nature is not a matter of satisfaction for all concerned. At the same time we remind ourselves of the time-tested rule that acquittal of

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a guilty person should be preferred to conviction of an innocent person. Unless the prosecution establishes the guilt of the accused beyond reasonable doubt a conviction cannot be passed on the accused. A criminal court cannot afford to deprive liberty of the appellants, lifelong liberty, without having at least a reasonable level of certainty that the appellants were the real culprits. We really entertain doubt about the involvement of the appellants in the crime."

101. Likewise, the Hon'ble Apex Court in the case of "Krishnegowda

& Ors. Vrs. State of Karnataka", (2017) 13 SCC 98, has held at

paragraph-26 as under:-

"26. Having gone through the evidence of the prosecution witnesses and

the findings recorded by the High Court we feel that the High Court has

failed to understand the fact that the guilt of the accused has to be

proved beyond reasonable doubt and this is a classic case where at

each and every stage of the trial, there were lapses on the part of the

investigating agency and the evidence of the witnesses is not

trustworthy which can never be a basis for conviction. The basic

principle of criminal jurisprudence is that the accused is presumed to

be innocent until his guilt is proved beyond reasonable doubt."

102. Further, it is the settled proposition of law that if the result of

cross-examination of prosecution witnesses, accused could establish the

probability of his defence and if probability was established by accused, it

would really entitle him to the benefit of doubt, reference in this regard

may be made to the judgment rendered by the Hon'ble Apex Court in the

case of "Bhikam Saran Vrs. State of U.P.", (1953) 2 SCC 560, wherein,

at paragraph-16, it has been held as under:

"16. It is significant to observe that the appellant led no evidence in defence but merely relied upon the evidence of the prosecution witnesses in order to establish his defence. He had not to affirmatively establish his defence in the manner in which the prosecution had to establish its case. If as the result of his cross- examination of the prosecution witnesses he could establish the probability of his defence

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it was enough for his purposes, because if such a probability was established by him it would really entitle him to the benefit of the doubt insofar as such probability would prevent the prosecution case being established beyond reasonable doubt."

103. Further, the principle of 'benefit of doubt' belongs exclusively to

criminal jurisprudence. The pristine doctrine of 'benefit of doubt' can be

invoked when there is reasonable doubt regarding the guilt of the accused,

reference in this regard may be made to the judgment rendered by the

Hon'ble Apex Court in the case of "State of Haryana Vrs. Bhagirath &

Ors.", (1999) 5 SCC 96, wherein, it has been held at paragraph-7 as under:

"7. The High Court had failed to consider the implication of the evidence of the two eyewitnesses on the complicity of Bhagirath particularly when the High Court found their evidence reliable. The benefit of doubt was given to Bhagirath "as a matter of abundant caution". Unfortunately, the High Court did not point out the area where there is such a doubt. Any restraint by way of abundant caution need not be entangled with the concept of the benefit of doubt. Abundant caution is always desirable in all spheres of human activity. But the principle of benefit of doubt belongs exclusively to criminal jurisprudence. The pristine doctrine of benefit of doubt can be invoked when there is reasonable doubt regarding the guilt of the accused. It is the reasonable doubt which a conscientious judicial mind entertains on a conspectus of the entire evidence that the accused might not have committed the offence, which affords the benefit to the accused at the end of the criminal trial. Benefit of doubt is not a legal dosage to be administered at every segment of the evidence, but an advantage to be afforded to the accused at the final end after consideration of the entire evidence, if the Judge conscientiously and reasonably entertains doubt regarding the guilt of the accused."

104. Likewise, the Hon'ble Apex Court in the case of "Krishnegowda

v. State of Karnataka" (Supra) at paragraph-32 and 33 has held as under:-

"32. --- --- The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.

33. It is the duty of the Court to consider the trustworthiness of evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice.--- -

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105. It needs to refer herein that The Hon'ble Apex Court, in the case

of "Allarakha K. Mansuri v. State of Gujarat", (2002) 3 SCC 57 has laid

down the principle that the golden thread which runs through the web of

administration of justice in criminal case is that if two views are possible

on the evidence adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which is favourable to the

accused should be adopted, for reference, paragraph-6 thereof requires to

be referred herein which reads hereunder as :-

"6. ------The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. --"

106. It needs to refer herein before laying down the aforesaid view,

the Hon'ble Apex Court in the case of "Sharad Birdhichand Sarda v.

State of Maharashtra", (1984) 4 SCC 116 has already laid down the same

view at paragraph-163 which is required to be referred which read

hereunder as

"163. We then pass on to another important point which seems to have been completely missed by the High Court. It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt.---"

107. On the basis of the discussion made hereinabove, it needs to refer

herein that under Section 307 whoever does any act with such intention or

knowledge, and under such circumstances that, if he by that act caused

death, he would be guilty of murder, shall be punished with imprisonment

of either description for a term which may extend to 10 years and shall

also be liable to fine. If hurt is caused to any person by such act, the

offender shall be liable either to imprisonment for life or to such

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punishment as is herein before mentioned. As rightly pointed out on behalf

of the state by the learned Additional Public Prosecutor, under the section

it is the intention of the accused which is the only material consideration;

such intention should be to cause death and under the first part of the

section even if no injury is caused the offender shall be liable to

punishment. Under the second part of the section if hurt is caused the

offender shall be liable to a higher punishment. Further, if the nature of

injuries sustained is not sufficient to cause death and they were inflicted

on non-vital parts of the body and though the injuries are severe but none

of them independently or collectively could have caused death, it cannot

be said that the ingredients of section 307 are satisfied.

108. The next question herein is whether there was any intention to

cause death, on the part of the present appellants. As far as this point is

concerned, this Court unable to accept the contention of the prosecution

that the accused used the weapon with intention to cause death or

knowledge that his act will cause death. The nature of the injuries as would

be evident from the medical certificates, is that they were simple injuries

caused by hard and blunt substances. The evidence of PW5 who had

examined injured witness (PW4) shows that there was grievous injury

particularly injury no.1 and as discussed above same has been given by

the accused Naresh (since dead).

109. This Court, after having discussed the factual aspect and legal

position and considering the finding recorded by the learned trial Court, is

of the view that accusation under Section 307 of the IPC against the present

appellants is not made out, therefore, the present appellants also cannot be

convicted under Section 307 of the IPC.

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110. Further as discussed hereinabove it is clear that no role is

attributed to present appellants in the murder of deceased, namely,

Surendra. The only role attributed to present appellants is that they are

supposed to have given a rod blow to deceased after other co-accused

Naresh had hit deceased with an axe and inflicted the stab injury in the

abdomen of the deceased. Undoubtedly as per the doctor (PW6) the stab

wound caused the death of the deceased. The rod blow was given after the

axe and knife injury and the said axe and knife injury had been inflicted

by the co-accused Naresh (since dead). Since there is no trace of common

intention in entire alleged occurrence or any element of common intention

has not put forth by the prosecution, therefore, the present appellants

cannot be convicted under Section 302 IPC also.

111. Further in the aforesaid circumstances, this Court has considered

view that for injury no.(iii) and (iv) the case falls under section 321 read

with section 323 of the IPC against the present appellants. Section 321 says

that whoever does any act with the intention of thereby causing hurt to any

person, or with the knowledge that he is likely thereby to cause hurt to any

person, and does thereby cause hurt to any person, is said to voluntarily

cause hurt. Under section 323 whoever voluntarily causes hurt shall be

punished with imprisonment of either description for a term which may

extend to one year, or with fine which may extend to Rs. 1,000/- or with

both.

112. This Court, therefore, is of the view based upon the discussions

made hereinabove, that the impugned judgment needs interference,

accordingly, the judgment of conviction dated 15.02.1996 and the order of

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sentence dated 24.02.1996 passed by the learned Sessions Judge, Deoghar

in Sessions Case No.65 of 1995 is hereby quashed and set aside.

113. The appellants, namely, Om Prakash Sah and Ramesh Prasad

Sah are acquitted of the charge framed against them for the offence under

sections 302/307 of the Indian Penal Code.

114. Consequent to the aforesaid, this Court, hereby, held appellants

guilty for the offence under Section 323 I.P.C. and sentence them for the

period already undergone by them.

115. The appellants are on bail vide order dated 18.03.1996 passed by

this Court in the present proceeding and, as such, they are discharged from

the liabilities of bail bonds.