Patna High Court
Sheoji Tiwari And Anr vs The State Of Bihar on 16 January, 2024
Author: Ashutosh Kumar
Bench: Ashutosh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.1488 of 2017
Arising Out of PS. Case No.-196 Year-1995 Thana- BARAULI District- Gopalganj
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1. Sheoji Tiwari, S/o Late Ram Swarup Tiwari,
2. Munna Tiwari, S/o Shroji Tiwari, Both R/o Village- Bharkuiya, P.S.-
Barauli, District- Gopalganj.
... ... Appellant/s
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. D.K. Tandon, Advocate.
Mr. Pratik Tandon, Advocate.
For the Respondent/s : Mr. Ajay Mishra, APP.
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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR
and
HONOURABLE MR. JUSTICE NANI TAGIA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR)
Date : 16-01-2024
We have heard Mr. D.K. Tandon, the learned
Advocate for the Appellants and Mr. Ajay Mishra, the
learned APP for the State.
2. The appellant no.1, who is the father of
appellant no.2, has been convicted under Section 302 with
the aid of Section 109 of the Indian Penal Code; whereas
appellant no.2 has been convicted under Section 302 of the
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
IPC, simplicitor vide judgment dated 18.11.2017 passed by
the learned Additional Sessions Judge, Fast Track Court-I,
Gopalganj in Sessions Trial No. 126 of 1997/ Tr. No. 249
of 2017/ C.I.S. No. 1294 of 2013, arising out of Barauli
P.S. Case No. 196 of 1995. By order dated 23.11.2017,
appellant no.1 has been sentenced undergo imprisonment
for life, to pay a fine of Rs. 8,000/- and in default of
payment of fine, to further suffer S.I. for five months for
the offence under Section 302/109 of IPC. The appellant
no. 2 has been sentenced to undergo imprisonment for life,
to pay a fine of Rs.10,000/- and in default of payment of
fine, to further suffer S.I. for six months. for the offence
under Section 302 of IPC.
3. On the exhortation of appellant no.1, the
appellant no. 2 is said to have given a Bhala blow on the
deceased as a result of which he died instantaneously.
4. The attack on the deceased caused an incised
penetrating wound of 1½'' x ½, which went in to the
thoracic cavity. The impact of it was fracture of the fifth
rib at the junction of the sternum and the coastal region.
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
This had resulted in a large hematoma underneath the
sternum. The left ventricle was punctured through and
through and the injury crossed through the left lung. The
whole thoracic cavity was found to be full of blood clots.
5. Obviously, the death was because of the afore-
noted injury, accelerated by shock and hemorrhage.
6. The post-mortem on the deceased was
conducted on 31.08.1995 i.e. on the day of the occurrence
and the time of death was fixed at 6 to 12 hours, to be
counted from the time of the post-mortem examination.
Such injuries were confirmed by Dr. Tirthanand Singh,
(P.W. 9) who had conducted the post-mortem examination.
In his opinion, such injury could well have been caused by
a spear.
7. The reason for the assault arose out of
appellant no. 1 holding some grudge against the deceased
for his taking sides with his bete-noire, but for a petty
dispute. The deceased along with his son/the informant
(P.W. 6) was present at the place of occurrence at the time
when appellant no.1 was fighting with one Nand Bihari
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
Tiwary over the issue of drainage of a hand-pump. The
water collected from the hand-pump was hitherto being
drained out in a gair-majarua land. However, on the day of
the occurrence, appellant no.1 had occluded the drain,
which perhaps was the bone of contention between Nand
Bihari Tiwary and appellant no. 1. While they were having
heated discussions and many persons of the village
including the deceased and his son were watching it, the
deceased moved forward in order to intercede with
appellant no. 1 and Nand Bihari Tiwary. This enraged
Sheoji Tiwary (appellant no.1), who asked his son
(appellant no.2) to bring a Bhala from his home and kill the
deceased. Perhaps, as noted above, the appellant no.1 was
of the opinion that the deceased always sided with Nand
Bihari Tiwary.
8. It would be relevant to state here that
according to the evidence garnered during the Trial, Nand
Bihari Tiwary, Sheoji Tiwary (appellant no. 1) and the
deceased are all related to each other.
9. Obeying his father, appellant no. 2 went to his
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
house, brought a Bhala and hit the deceased by that Bhala.
He is said to have then taken out the spear from the body
of the deceased and having retreated to his home to keep
the weapon. Thereafter, both father and son dyad
(appellant nos. 1 and 2 ) scarpered.
10. The police had arrived in the village; had
prepared the inquest report and had also recovered the
weapon of assault viz. Bhala, which had blood smeared on
it, from the house of the appellants. Though the police
noted the presence of blood, but it appears that because
most of it was wiped off as the weapon was kept on
haystack, the blood drops were not collected for any
forensic examination. But then, there is no dispute about
the fact that over a trifle, appellant no.2 had assaulted the
deceased with the spear. The post-mortem report
completely confirmed that the death was because of the
injury by the spear.
11. Both the appellants were charge-sheeted and
put on Trial.
12. The Trial Court, after having examined ten
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
witnesses on behalf of the prosecution, convicted and
sentenced the appellants as aforesaid.
13. Though Dayanand Tiwary, Lallan Tiwary, Deota
Tiwary, Raj Kishore Singh and Dina Nath Singh, who have
been examined as P.Ws. 1 to 5 were present at the P.O
when the assault had taken place, but, if their deposition is
examined in some more detail, it would appear that some
of them may not have actually seen the real part of the
assault. However, in their presence, according to them, the
deceased was hit by a spear which led to his instantaneous
death.
14. The entire occurrence of murder took place in
such a short time that even the afore-noted witnesses, who
were around the P.O could not come to the rescue of the
deceased. Even P.W. 6, who is the son of the deceased,
could not stop the appellant no. 2 from hitting his father by
the spear.
15. The only reason, as it appears to us, is that
none of these witnesses including P.W. 6 had believed that
only because the deceased had tried to intercede between
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
appellant no.1 and Nand Bihari Tiwari over drainage of
hand-pump water, the deceased would be killed. That
appellant no.1 gave a hortatory call to appellant no.2 to
bring a weapon and kill the deceased was only a bluster.
The deceased also perhaps had not anticipated that
appellant no.1 was serious when he had commanded his
son (appellant no. 2) to bring a weapon and kill him.
16. There is no dispute about the fact that the
deceased, the appellants and Nand Bihari Tiwari are all
resident of the same village and are related to each other.
That the deceased showed more affinity with Nand Bihari
Tiwary was perhaps the reason for appellant no.1 to get
enraged and get apoplectic when the deceased moved
forward to pacify the warring brothers. Any exclamation or
words spoken in anger at that time would not have been
taken seriously. There was no real issue between the
deceased and appellant no.1 and perhaps appellant no. 2
as well. The drainage of water in the gair majarua land had
continued for quite some time. The opposition to it was
only raised on the day of the occurrence. Appellant no.1
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
had blocked the drainage and Nand Bihari Tiwary, who
perhaps had been using the hand-pump was not happy
about it. This was hardly a dispute which would have
occasioned the murder of another relative of both of them
who had gone to intercede.
17. The learned advocate for the appellants has
taken great strains to demonstrate that even if the
accusation is accepted to be true, appellant no.2 would
never have intended to cause the death of the deceased.
18. However, that may not be sufficient for giving a
clean chit to the appellants so far as the offence of murder
is concerned.
19. The law mandates that if the nature of injury
which was intended to be caused, was, in the ordinary
course of nature, so imminently dangerous that it could
have caused the death, the offence of murder would be
complete.
20. The whole effort of the appellants, therefore,
has been demonstrate that under the afore-noted
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circumstances, there could not be any intention to kill the
deceased or cause such an injury, which in ordinary course
of nature, would occasion the death of the deceased.
21. But how is the intention to be gathered and
calibrated ?
22. The appellant no. 2 had used a weapon which
was dangerous in itself and the injuries caused on the
deceased was very grievous.
23. Can the intent deficit be determined only on the
account of one blow by appellant no. 2 and no
premeditation or preparedness for committing the murder ?
24. It requires to be discussed.
25. We have given our anxious consideration over
the surrounding facts and circumstances of the case with
respect to the moot question whether the appellants could
be held guilty of the offence of murder, punishable under
Section 302 of the IPC or whether they would be criminally
liable under the less severe section of 304 IPC.
26. This question has been engaging the attention
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
of Courts regularly.
27. In Virsa Singh vs. State of Punjab: 1958
SCR 1495, the Supreme Court has declared that for the
offence of murder, the prosecution must prove that the
death has been caused by a bodily injury and that the
injury was such as would have surely caused the death.
28. These are but purely objective
investigations. The prosecution would be under an
obligation to prove that there was an intention to inflict that
particular injury, i.e. to say that it was not accidental or
unintentional or that some other kind of injury was
intended.
29. Once these elements are proved to be
present, the Court would proceed with an inquiry further
and would look for evidence which would prove that the
injury of the type suffered by the deceased was sufficient in
the ordinary course of nature to cause death.
30. This inquiry also is purely objective and
inferential and has got nothing to do with the intention of
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the offender.
31. The Courts in all such matters have to
proceed to decide the pivotal question of intention, with
utmost care and caution as that would decide whether the
case would fall under Section 302 or 304 Part -I or 304
Part -II of the IPC.
32. Many petty or insignificant issues could
lead to an altercation culminating in death. They could be
with the usual motives of revenge, greed, jealousy or
suspicion or such impelling factors may not be present. How
to gather intention under the latter circumstance viz. no
usual impelling factor? In such cases, there may not even
be any criminality.
33. It is for the Courts to be rather careful in
ensuring that the cases of murder are not converted into
offences punishable under Section 304 Part -I/II of the IPC
or cases of culpable homicide not amounting to murder are
treated as murder punishable under Section 302 of the IPC.
The intention, therefore, to cause death has to be
determined and gathered generally, which is dependent on
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
a combination of many circumstances. Some of such
circumstances would be:
(i) The nature of weapon used;
(ii)whether the weapon was carried by the
accused or brought from home;
(iii) whether the blow was aimed at a
vital part of the body;
(iv) what was the amount of force
employed in causing such injury;
(v) whether the act was in course of
sudden quarrel or sudden fight or free fight
for all;
(vi) whether the incident occurred by
chance or whether there was any
premeditation;
(vii) whether there was any prior
enemity or the deceased was a stranger;
(viii) whether there was any grave and
sudden provocation, and if so, what was the
cause of such provocation;
(ix) whether the act committed was in a heat
of passion;
(x) whether any undue advantage was taken
by the offender over the person who was
attacked;
(xi) whether any cruel and unusual method
was adopted for killing the deceased; or
(xii) whether the deceased was dealt with a
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
single blow or several blows etc. etc.
34. The list could go on and could never be
exhaustive. [Refer to Pulichera Nagaraju vs. State of
A.P (2006) 11 SCC 444; Santosh vs. State of
Maharashtra (2015) 7 SCC 641 and Prasad Pradhan
& Anr. vs. State of Chhatisgarh 2023 SCC OnLine Sc
81].
35. Before we test the circumstances of this
case to form any specific opinion whether offence of Section
302 or 304 of the IPC is made out, it would be necessary
for us to state in brief as to what is the actual import of the
word 'intention'.
36. Etymologically, the word 'intent' has
some connection with archery and aim. This, therefore,
refers to not a casual or merely possible result which could
be foreseen. It connotes a definite object coupled with a
dominant motive, without which the action would not have
been taken. There is a world of difference between motive,
intention and knowledge. Motive prompts a man to form an
intention, whereas knowledge is an awareness of the
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
consequences of the act. In many cases, intention and
knowledge would merge into each other and mean the same
thing. The intention could be presumed from the
knowledge. The demarcating line between knowledge and
intention is very thin. However, it would be required to be
perceived no matter how much of perspicaciousness would
be needed, as it connotes different things. [Refer to
Anbazhagan vs. State Represented by the Inspector
of Police 2023 SCC OnLine SC 857].
37. The deceased was given one Bhala blow.
The fight was not between the deceased and appellant no.1.
There was no prior dispute of the appellant with the
deceased. The deceased, the appellants and Nand Bihari
Tiwary with whom appellant no.1 had been fighting are all
related to each other. There was no preparedness for any
assault of any kind as nobody is alleged to be prepared with
any weapon; not even a lathi. There was only a verbal duel
between appellant no.1 and Nand Bihari Tiwary. Rest all,
including the deceased and P.W. 6 and other witnesses
were fence-sitters. Precaratory words were being used; but
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
there was no physical assault. The moment appellant 1 and
Nand Bihari Tiwary entered into fisticuffs, the deceased got
up from his seat somewhere around under a banayan tree
and tried to pacify the matter. This was the exact moment
when the appellant no.1 became livid. In such moment of
indiscretion, he asked his son (appellant no.2) to bring a
weapon from the house and kill the deceased. The rage had
got the better of the appellant no.1, also for the reason that
his perception was that the deceased always sided with
Nand Bihari Tiwary.
38. In such a situation, the exhortations of
appellant no.1 would only have meant to prevent the
deceased from interfering in the fight between the appellant
no.1 and Nand Bihari Tiwary and nothing more. The
minatory words were, perhaps, not taken seriously by any
one except appellant no.2 or else the villagers who had
assembled there and had been watching the fight, would
have immediately rushed to the rescue of the weaker party.
39. None of the witnesses viz. P.Ws.1 to 5
moved from their seats. It was only the deceased who had
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
come to pacify the warring brothers. However, it appears
that appellant no.2 took the orders of his father rather
seriously; went back to his home and brought a spear and
attacked the deceased with that.
40. We have noted that there was no second
blow.
41. We have also noted from the surrounding
circumstances that there was no real effort on the part of
P.Ws. 1 to 6 to put appellant no.2 in any arm-lock, thereby
preventing him from attacking the deceased again.
Appellant no.2 had taken the weapon back to his home.
There was no great urgency for them to scoot away. This
reflects that the appellants did not intend to cause the
death of the deceased or cause such injury which would
surely have cause his death.
42. But then, can appellant no.2 or for that
matter, appellant no. 1 be said to be oblivious of the
knowledge that such assault will lead to an injury which
might result in death, thereby invoking the mischief of
section 300 fourthly.
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
43. It is at this stage that a distinction has to
be drawn between the intention and the knowledge.
44. We have gathered from the
circumstances and have formed an opinion that there was
no intention to cause even such injury which would, in
ordinary course of nature, have caused the death of the
deceased. Even with the risk of repetition, we say so for the
reason that there was only one blow given and there was no
preparedness. The deceased was not at loggerheads with
the appellants. There had been a peaceful co-existence.
45. This act was in a heat of passion, without
understanding the nature and quality of the act.
46. Would such heat of passion come within
the parameters of "sudden and grave" provocation, which
provides for a defence to the offenders?
47. Perhaps not.
48. The appellant had sufficient time to re-
think and cool down in running to his house and coming
back with a weapon. Appellant no.1 also, as a senior citizen
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
and as father to appellant no.2, had time to re-think
whether the intercession of the deceased in the fight with
Nand Bihari Tiwary needed to be recriminated like this.
49. The appellants, therefore, cannot claim to
have been over taken by any sudden and grave provocation
for them to take the shelter of the exception to Section 300
of the IPC.
50. But we find that there is a deficit of
intention to cause such bodily injury which would have
caused death. However the appellant can be presumed to
have the knowledge that such an exhortation and resultant
assault might result in culpable homicide not amounting to
murder.
51. We, therefore, consider it appropriate to
convert the conviction of the appellants from one under
Section 302/109 of the IPC and Section 302 of the IPC,
simplictor to one under Section 304 Part-II/109 of the IPC
and 304 Part-II of the IPC against the appellants
respectively.
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
52. We order accordingly.
53. The sentence of the appellants are also
required to be altered.
54. Taking into account that the occurrence is
of the year 1995, we have thought it fit to convert the
respective sentences of the appellants.
55. The appellant no.1 was assessed to be of
65 years by the Trial Court in the year 2017. The
occurrence is of the year 1995. He had been on bail during
the investigation and Trial. After his conviction, his sentence
was suspended. Taking a lenient view, we are of the opinion
that a sentence of five years to appellant no.1 would the
meet the ends of justice. As far as appellant no. 2 is
concerned, we deem it appropriate to saddle him with ten
years of rigorous imprisonment. We say nothing regarding
their entitlements to remissions.
56. We order accordingly.
57. The amount of fine saddled by the Trial
Court is not interfered with and is maintained.
Patna High Court CR. APP (DB) No.1488 of 2017 dt.16-01-2024
58. In the event of non-payment of fine, both
the appellants would further suffer additional simple
imprisonment for three months each.
59. Since appellant no.1 is on bail, he is
directed to be taken in custody to serve out the sentence.
60. The appeal stands partially allowed.
61. Let a copy of this judgment be dispatched
to the Superintendent of the concerned Jail forthwith for
compliance and record.
62. The records of this case be returned to
the Trial Court forthwith.
63. Interlocutory application/s, if any, also
stand disposed off accordingly.
(Ashutosh Kumar, J)
(Nani Tagia, J)
manoj/sunil-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 22.01.2024
Transmission Date 22.01.2024
