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