Patna High Court
Arjun Yadav @ Arjun Rai vs The State Of Bihar on 5 May, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.203 of 2023
Arising Out of PS. Case No.-54 Year-2009 Thana- TARAIYA District- Saran
======================================================
Arjun Yadav @ Arjun Rai, s/o late Kameshwar Ray r/o village- Sitalpatti,
P.S.- Taraiya, Distt- Saran at Chapra.
... ... Appellant
Versus
1. The State of Bihar
2. Baijnath Singh, S/o Late Ram Chandra Singh, R/o village- Dumari, P.S.-
Taraiya, Distt- Saran at Chapra.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (SJ) No. 119 of 2023
Arising Out of PS. Case No.-54 Year-2009 Thana- TARAIYA District- Saran
======================================================
Baijnath Singh, S/O Late Ramchandra Singh, Resident of village- Dumari,
P.O.- Dumari, P.S.- Taraiya, District- Saran.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 203 of 2023)
For the Appellant/s : Ms. Nikita Mittal, Advocate
For the State : Mr. Mukeshwar Dayal, APP
For the Respondent No.2: Mr. Ansul, Sr. Advocate
(In CRIMINAL APPEAL (SJ) No. 119 of 2023)
For the Appellant/s : Mr. Ansul, Sr. Advocate
For the State : Mr. Mukeshwar Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 05-05-2025
These two appeals have been filed against the
judgment dated 22.11.2022 and the order dated 24.11.2022
passed in Sessions Trial No. 675 of 2009, arising out of Taraiya
P.S. Case No. 54 of 2009 (hereinafter referred to as the
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
2/37
'impugned judgment and order' respectively) by learned
Additional District and Sessions Judge-IXth, Saran at Chapra
(hereinafter referred to as the 'learned trial court').
2. By the impugned judgment, the learned trial court
held respondent no. 2 (Cr. Appeal (DB) No. 203 of 2023) guilty
of the offence punishable under Section 304 Part II of the Indian
Penal Code (in short 'IPC'). The respondent no. 2 has been
sentenced to undergo five years rigorous imprisonment for the
offence under Section 304 Part II of the IPC with a fine of Rs.
20,000/- . In default of payment of fine, he has been ordered to
undergo three months simple imprisonment. All sentences shall
run concurrently. The learned trial court has, however, acquitted
the respondent no. 2 of the charge under Section 302 IPC.
3. The appellant in Cr. Appeal (DB) No. 203 of 2023
is the informant of the case who is aggrieved by the impugned
judgment whereby the Respondent No. 2 has been acquitted of
the charge under Section 302 IPC and has been convicted for a
lesser offence i.e. culpable homicide not amounting to murder.
4. Cr. Appeal (SJ) No. 119 of 2023 has been
preferred by the respondent no. 2 of Cr. Appeal (DB) No. 203 of
2023 for setting aside the impugned judgment of conviction and
sentence.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
3/37
5. With the consent of the parties, both the appeals
have been heard together and are being disposed of by this
common judgment.
Prosecution case
6. The informant, namely, Kameshwar Rai (since
deceased/victim) in his fardbeyan recorded on 04.06.2009 at
about 08:00 PM at Referral Hospital, Taraiya in emergency
ward alleged that on the same day at about 06:30 PM, he was
returning his house along with his son Arjun Rai from village
Andharwari after grinding flour. When he reached near the
house of one Rajendra Rai, in the meantime, a motorcycle came
from the side of Taraiya and stopped near the house of Rajendra
Rai and one Baijnath Singh got down from the motorcycle and
with an intention to kill the informant assaulted him by dagger
twice in his ribcage and shoulder due to which he became
unconscious and fell down. Thereafter, he tried to assault the
son of the informant who fled away to save his life. It is further
alleged that the said Baijnath Singh fled away after leaving the
motorcycle. It is further alleged that with the help of the
villagers the informant was taken to Taraiya Hospital where his
treatment is going on. The reason of the alleged incident is the
previous enmity.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
4/37
7. On the basis of the aforesaid fardbeyan of the
informant, a First Information Report being Taraiya P.S. Case
No. 54/2009 dated 04.06.2009 has been registered under
Sections 341, 324 and 307 IPC against the sole accused Baijnath
Singh. After completion of investigation, police submitted a
charge-sheet bearing number 77/2009 dated 25.09.2009 under
Sections 341, 323, 307 and 302 IPC against Baijnath Singh.
Upon submission of charge-sheet, the learned Magistrate took
cognizance vide order dated 02.10.2009/05.10.2009. The case
was committed to the court of Sessions on 05.12.2009 where
Sessions Trial No. 675 of 2009 was registered. Vide order dated
21.12.2009
charges were framed under Section 302 IPC.
8. During trial, the prosecution produced as many as
ten witnesses and proved some documentary evidences. The full
description of the witnesses and the documents proved on behalf
of the prosecution are being provided hereunder for a ready
reference:-
List of Prosecution Witnesses
PW-1 Binda Raut
PW-2 Baharan Rai
PW-3 Arjun Rai (son of the informant)
PW-4 Surendra Rai
PW-5 Sabha Rai
PW-6 Sachidanand Singh
PW-7 Dr. Muneshwar Prasad Singh
PW-8 Shri Bhagwan Rai
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
PW-9 Dr. Surendra Prasad Singh
PW-10 Nali Narayan Choudhary
List of Prosecution Exhibits
Exhibit '1' Signature of Arjun Rai on the
fardbeyan
Exhibit '1/1' Signature of Kameshwar Rai on
Fardbeyan
Exhibit '2' Entire fardbeyan
Exhibit '3' Signature of Dr. M.P. Singh on
Postmortem report
Exhibit '4' Injury report of Kameshwar Rai
Exhibit '5' Inquest report of Kameshwar
Rai
9. After the prosecution evidence was closed, the
statement of the accused was recorded under Section 313
Cr.P.C.
10. In defence, no oral evidence has been led but
some documentary evidences have been brought on record as
defence evidence.
List of Exhibits on behalf of Defence
Exhibit-A Letter No.7778 sent by Superintendent,
PMCH to the court
Exhibit-B Letter No.6143 dated 17.04.2015 sent by
Superintendent, PMCH to the court
Exhibit-C Bed head ticket of the deceased
Exhibit-D Protest Petition dated 29.11.2010 in Taraiya
Exhibit-E Report of A.C.M.O., Sadar Hospital, Chapra
regarding the treatment of deceased
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
Findings of the Learned Trial Court
11. Learned trial court after analyzing the evidences on
the record found that the accused-respondent no.2 was charged
for the offence under Section 302 IPC and the informant
-appellant in his fardbeyan alleged that the accused had
inflicted two knife blows which finds support from the injury
report (Exhibit-4) issued by the doctor of Primary Health
Centre. The prosecution witnesses have deposed that there was
argument between the informant and the accused on the point of
money for tree of Gullar whereafter the accused caused injury
to the informant and thereafter he was treated at Taraiya
hospital from where he was referred to Sadar hospital, Chapra
where x-ray of injured was done but he was not admitted there.
From the Exhibit-E brought by the defence learned trial court
found that injured was treated at Ishwar Dayal Hospital, Patna
and he returned home after getting cured. Thereafter, after 40
days of the occurrence, on 14.07.2009 the injured was admitted
in PMCH.
12. Learned trial court has held that the informant died
after 50 days of the occurrence. The Medical Officer has in his
report given different reasons which are self-contradictory.
According to the learned court, the act committed by the
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
accused does not satisfy the essential ingredients of Section 300
IPC. In these circumstances, the learned court acquitted the
accused of the offence under Section 302 IPC.
13. Having taken the aforementioned views, the learned
trial court held that the accused had assaulted the informant
(since deceased) by a dagger as a result whereof the informant
died after 50 days. The learned trial court held that this act of
the accused would come in the category of culpable homicide
as defined under Section 299 IPC. The learned trial court
clearly held that the act of assault by dagger clearly indicates
that the accused had within his knowledge that the act which he
was committing can cause death of the informant. The learned
trial court has recorded that from the post mortem report
(Exhibit '3') issued by the PMCH, it appears that the death of
the informant has occurred because of the infection and
formation of pus in the wound of the stomach.
14. The learned trial court, however, went to add that
from the oral and documentary evidences of the prosecution, it
is evident that the informant (deceased) had not got his
treatment properly done. Referring to Explanation 2 of Section
299 of the IPC, the learned trial court held that if appropriate
and skilled treatment would have been provided to the
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
informant (deceased), the death could have been avoided. The
learned trial court has clearly recorded that the informant (the
deceased) died due to the injury caused by the accused. For
these reasons, the learned trial court has held the accused
(respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023) guilty of
the offence under Section 304 Part II of the IPC. The learned
trial court has awarded a sentence of five years rigorous
imprisonment to the accused with a fine of Rs.20,000/-. In case
of non-payment of fine, the convict shall undergo an additional
imprisonment of three months. The learned trial court has given
benefit of adjustments of the period already spent in
incarceration in terms of Section 428 CrPC (now Section 468 of
the Bhartiya Nagrik Suraksha Sanhita (BNSS)).
15. On the point of compensation to the victim under
Section 357 A(3), the learned trial court has recommended the
case of the victim to the District Legal Service Authority, Saran,
Chapra under the Bihar Victim Compensation Scheme, 2014 for
providing appropriate compensation.
Submissions on behalf of the Appellant
in Cr. Appeal (DB) No. 203 of 2023
16. Learned counsel for the appellant in Cr. Appeal
(DB) No. 203 of 2023 has submitted that despite there being
clinching evidence on the record that the respondent no. 2
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
intentionally caused the injuries which ultimately led to the
death of the informant, the learned trial court has acquitted
respondent no. 2 on a completely irrelevant and extraneous
consideration by taking a view that if proper and skilled
treatment would have been provided to the informant then his
life could have been saved.
17. Learned counsel submits that the learned trial court
has found in paragraph '21' of the impugned judgment that the
accused had assaulted the informant by dagger and caused
injury. The learned trial court has referred the cause of death
shown in the PMCH report wherein it is said to be caused due
to heart attack. The learned trial court has noticed the post
mortem report of Sadar Hospital, Chapra and the opinion of the
Doctor saying that the death of deceased was caused due to
infection and pus formation. The learned trial court has got
influenced only because the death has taken place due to
infection and pus formation in the wound caused in the stomach
of the deceased.
18. It is submitted that the learned trial court
misconstrued Section 299 IPC and thereby took a view that
from the evidence led by the prosecution, it appears that the
deceased had not received proper treatment and had he been
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
properly treated then his death could have been avoided. It is
submitted that such observations of the learned trial court is
completely irrelevant and contrary to Explanation 2 to Section
299 IPC.
19. It is further submitted that in this case the date,
time, place and manner of occurrence have been duly proved by
the prosecution. The trial court has accepted the prosecution
story but instead of convicting the accused under Section 302
IPC, convicted him under Part II of Section 304 IPC and
awarded a meagre sentence of only five years rigorous
imprisonment with a fine of Rs.20,000/-.
20. It is submitted that the learned trial court has
grossly erred in appreciation of evidence. There is a complete
misunderstanding of Explanation 2 of Section 299 IPC on the
part of the learned trial court and the Exceptions to Section 300
IPC. The learned trial court has not recorded any finding that
the accused had no intention to cause death of the informant.
21. It is submitted that the act of the accused is covered
under the definition of Section 300 and there was no reason for
the learned trial court to put it within the category of culpable
homicide not amounting to murder and then convict the accused
under Part II of Section 304 IPC.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
in Cr. Appeal (DB) No. 203 of 2023
22. Mr. Ansul, learned Senior Counsel representing
respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023 and
simultaneously arguing the appeal of respondent no. 2 being Cr.
Appeal (SJ) No. 119 of 2023, though initially took a plea that in
this case the place of occurrence has not been duly proved by
the prosecution and the presence of the son of the informant,
namely, Arjun Yadav at the place of occurrence and as an eye
witness cannot be believed but in course of his submissions
when he was confronted with the averments made in the protest
petition (Exhibit 'D') filed by the accused in the court of
learned Chief Judicial Magistrate, Chapra, Saran vide C 3689 of
2010 (Exhibit 'D') in which the accused has himself stated
about the occurrence which took place on 04.06.2009 at 04:00
PM in Village Andharwari and has shown the presence of Sabha
Rai, Pintu, Baharan Rai, Sunil Kumar Rai out of whom Baharan
Rai (PW-2) and Sabha Rai (PW-5) have deposed as prosecution
witnesses and then the fardbeyan of Kameshwar Rai which is
the basis of the FIR in which he has clearly stated about the
presence of his son Arun Rai with him at the time of
occurrence, learned Senior Counsel for the respondent no. 2 has
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
not pressed this plea.
23. Learned Senior Counsel submits that he would
confine his submissions to the extent that in this case the
alleged injury caused by the respondent no. 2 is not the
proximate cause of death. Learned Senior Counsel has relied
upon a Division Bench judgment of the Hon'ble Madhya
Pradesh High Court in Imran Khan versus State of Madhya
Pradesh reported in 1994 MPLJ 862 to submit that an act is
said to be a cause of death when the death result from the act
itself and from some consequences necessarily or naturally
flowing from the act and reasonably contemplated as its result.
It is his submission in this case the chain of consequences stood
broken as the informant (deceased) was admitted in PMCH
after 40 days of the occurrence and he ultimately died as a
result of the infection suffered and the pus formed in the
wound.
24. It is his submission that there was an unexpected
complication which would be in the nature of a new mischief
and the relation of cause and effect or the causal connection is
too remote. It is his submission that the proximate cause of
death being the infection and formation of pus in the wound,
the respondent no. 2 would not be liable to be convicted under
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
Section 302 IPC. It is his submission that in this case the report
of PMCH as enclosed with the Letter No. 6143 dated
17.04.2015 (Exhibit 'B') shows that the Doctor noticed on
admission of the informant that it was an old case of stab injury
for which exploratory laprotomy was done in Ishwar Dayal
Hospital where colostomy was done. The Doctor noticed loose
watery stool coming out from colostomy wound and wound
dehiscence. The informant (deceased) remained admitted in
PMCH for about 10 days. He was declared dead clinically on
the basis of the findings: pulse-absent; BP- not recordable; heart
S./breath S.- not audible; pupil- B/L dilated and fixed; mode of
death- cardio pulm. Arrest.
Submissions of the State
in Cr. Appeal (SJ) No. 119 of 2023
25. Learned Additional Public Prosecutor for the State
has opposed Cr. Appeal (SJ) No. 119 of 2023. It is submitted
that the challenge to the impugned judgment of conviction has
no plausible basis and it is liable to fail. The learned trial court
has rightly appreciated the entire evidence on the record and
having found that the date, time, place and manner of
occurrence have been duly proved by the prosecution,
convicted the accused for the offence of culpable homicide not
amounting to murder and sentenced him to undergo a rigorous
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
imprisonment of five years with a fine of Rs.20,000/-.
Consideration
26. We have heard learned counsel for the appellant in
both the appeals simultaneously and learned Additional Public
Prosecutor for the State.
27. As recorded hereinabove, in course of hearing of
the appeals, learned Senior Counsel for the convict-appellant in
Cr. Appeal (SJ) No. 119 of 2023 has given up his submissions
with regard to the place of occurrence and the credibility of the
eye witness as also finding of the learned trial court that the
cause of death in this case is the injury caused by the accused
but the sole contention of learned Senior Counsel for the said
appellant while arguing on his behalf as respondent no. 2 in Cr.
Appeal (DB) No. 203 of 2023 is that the death of the informant
(deceased) has resulted due to the new mischief in form of
infection and pus in the wound, therefore, the learned trial court
has not committed any error in convicting the respondent no. 2
only for the culpable homicide not amounting to murder and
punished him under Part II of Section 304 of the IPC.
28. Notwithstanding the fact that learned Senior
Counsel for the appellant in Cr. Appeal (SJ) No. 119 of 2023
and respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023 has
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
confined his submissions, this Court takes it as its' duty to go
through the entire evidences on the record, re-appreciate it and
satisfy itself that the prosecution has duly proved its' case
beyond all reasonable doubt.
29. We have examined the evidences available on the
record. Binda Raut (PW-1) is an eye witness of the occurrence.
He is a resident of village Andharwari. He has stated that he
was in his house when Kameshwar Rai (the deceased) was
coming after grinding flour and Baijnath Singh also reached
there. His son was also with him. This witness has not stated
any quarrel having taken place in front of his house. He has
stated that Baijnath Singh inflicted dagger in right side on to the
stomach of Kameshwar Rai. Intenstine had come out and
profused bleeding took place. Kameshwar Rai was taken to
hospital at Chapra and from Chapra he was taken to Patna. In
his cross-examination, this witness has stated that the
occurrence had taken place in front of house of Ram Pravesh
Rai. He knows Rajendra Rai and Ram Pravesh Rai who are full
brothers and their houses are within a distance of one meter. He
has stated that Kameshwar Rai came home after one and half/
two months of treatment from hospital but after some
complications occurred in the wound, he again went to the
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
hospital. This witness has not been suggested by defence that
there was any sudden quarrel between the informant and the
respondent no. 2.
30. Baharan Rai (PW-2) is another villager of village
Andharwari. He has stated that he heard hulla and when he
reached there then he saw that some altercation was taking
place between Kameshwar Rai and Baijnath Singh, on that,
Baijnath Singh took out a dagger and assaulted Kameshwar Rai
which caused injury at three places. People assembled then they
took Kameshwar Rai to hospital. In his cross-examination, he
has stated that the occurrence has taken place in front of the
house of Ram Pravesh Rai. His house is situated at a distance of
ten laggis from the house of Ram Pravesh Rai. He has
explained that one laggi is equal to ten hands and his house is
situated at a distance of hundred hands. Again, from the
evidence of this witness, it appears that the Respondent No. 2
was armed with dagger and while having some altercation in
form of oral shoutings, he took out the dagger and assaulted the
informant. This witness has seen the occurrence.
31. Arjun Rai (PW-3) is the son of the deceased. He is
an eye witness to the occurrence. In the fardbeyan, the
informant has stated about the presence of his son Arjun Rai
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
(PW-3) with him at the time of occurrence. PW-3 has stated that
he was coming with his father by foot after grinding flour from
the flour mill which was kept on a bicycle and when they
reached near the house of Ram Pravesh Rai then from Taraiya
side, Baijnath Singh came on a motorcycle. There was an oral
exchange of words over the Gullar Tree on which Baijnath
Singh took out a dagger and assaulted on the right shoulder of
his father and then he penetrated the dagger in the left side on to
the stomach. This witness tied the wound by his gamchha and
tried to catch hold of Baijnath Singh but Baijnath Singh chased
him to assault. PW-3 has stated that he fled whereafter the
villagers assembled. Baijnath Singh had left his motorcycle
there. The father of this witness was taken to Taraiya Hospital
from where he was referred to Chapra Sadar Hospital and then
from Chapra, he was referred to PMCH but he was taken to
Ishwar Dayal Hospital where he was operated upon. PW-3 has
stated that in course of the treatment, his father died. In Taraiya
Hospital, the statement of his father was recorded, his father
had put his signature on his statement. This witness had also put
his signature on the fardbeyan. He has identified the signature
of his father on the fardbeyan as Exhibit '1' and his own
signature as Exhibit '1/1'.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
32. In his cross-examination, this witness has stated that
his home is village-Sitalpatti. Occurrence took place in the
village 'Andharwari'. There are 10/12 houses in village
Andharwari and the houses are situated at a distance of 2-4
steps. He has stated that his father was assaulted for about 10/5
minutes. He was not assaulted and he had not tried to save him.
He had seen the assault by dagger. The pointed part was
penetrated. He has made it clear in his cross-examination that
the house of Rajendra Rai and Ram Pravesh Rai are situated at
a distance of one laggi meaning thereby at a distance of seven
hands. This is important to note because in the fardbeyan the
informant has stated that the occurrence had taken place in front
of the house of Rajendra Rai but in course of evidence it has
transpired that Rajendra Rai and Ram Pravesh Rai are both
brothers and their houses are situated at a distance of one laggi
only.
33. This Court has, therefore, found that the statement
of the informant that the occurrence had taken place in front of
the house of Rajendra Rai cannot be taken to establish any
dispute with respect to the place of occurrence. It is to be
remembered that the occurrence had taken place in another
village where the deceased had gone with his son for grinding
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
flour and he was assaulted by Respondent No. 2 on his way in
front of the house of Ram Pravesh Rai. The I.O. has also
established the place of occurrence being in front of the house
of Ram Pravesh Rai. Considering the distance between the
houses of the two brothers being only a distance of seven hands
which is equivalent to one laggi, it cannot be said to be a
material discrepancy.
34. It is found that in course of cross-examination of
PW-3, he was suggested that Baijnath Singh had also lodged a
case. This witness said that he was not aware of it. Thereafter,
the defence did not prove any documentary evidence to show
that Baijnath Singh had lodged a case. All that has been proved
by defence is a protest petition which has been marked Exhibit
'D'.
35. The defence further suggested PW-3 that Baijnath
Singh (accused) had suffered injury but in course of trial, the
defence has not brought on record any injury report of Baijnath
Singh (Respondent No. 2). No oral evidence has been adduced
in this regard even though in protest petition, Baijnath Singh
claimed that he had gone to Chapra Hospital for his treatment.
Thus, the defence has not proved by leading any cogent
evidence that Baijnath Singh had suffered any injury in the said
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
occurrence. On perusal of the evidence of PW-3 coupled with
the fardbeyan of the informant (Exhibit '2'), it is evident that he
is an eye witness to the occurrence. He is the son of the
deceased. PW-1 has also said about the presence of PW-3 with
his father. PW-3 has withstood the test of cross-examination
and no material contradictions have been shown to this Court in
his evidence. The defence suggested PW-3 that occurrence is
said to have taken place in front of the house of Rajendra Rai
and no occurrence had taken place in front of the house of Ram
Pravesh Rai. PW-3 denied the suggestion.
36. Surendra Rai (PW-4) is an independent witness of
village Andharwari. He had seen Kameshwar at the place of
occurrence immediately after the occurrence. He has stated that
when he heard hulla at his bathan and went ahead to that place,
he found that Kameshwar Rai had suffered dagger injury in the
left and right side of his stomach. Baijnath Singh had assaulted.
Arjun son of Kameshwar Rai had fled away. Kameshwar Rai
was taken to hospital. This witness is, however, not an eye
witness to the occurrence and he has stated that he had not seen
the assault by dagger.
37. Sabha Rai (PW-5) is another eye witness to the
occurrence who has stated that there was a talk with regard to
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
money on account of Gullar Tree, on this Baijnath Singh took
out a dagger and penetrated the same in the left side of the
panjara of Kameshwar Rai and second time assaulted on his
shoulder. He had chased this witness and Arjun (PW-3). This
witness stated that he fled away raising hulla whereafter
villagers assembled. He identified the accused. This witness has
stated in his cross-examination that he is the brother in Gotiya
of Kameshwar Rai. He has given the description of the place of
occurrence. He has stated that in South there is house of Ram
Pravesh and Rajendra. In East, atta-chakki. PW-4 has stated that
he is doing chowkidari. Thus, this witness corroborates the
statement of PW-3 with regard to place of occurrence. He has
stated that blood had fallen on the earth. He has stated that
before he could have reached, Baijnath Singh had already
reached there. When this witness reached there, he saw
Kameshwar Rai was bleeding whereafter he ran and raised
hulla.
38. Sachidanand Singh (PW-6) is the I.O. of the case.
He has proved the fardbeyan recorded by Asim Khan. It has
been marked Exhibit '2'. He had taken the charge of
investigation and proceeded to the place of occurrence on
05.06.2009. He was shown the place of occurrence by Baharan
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
Rai (PW-2). The I.O. has proved the place of occurrence as the
pucci road North to the house of Ram Pravesh Rai. Road is
East-West. He has given the description of the place of
occurrence. He has stated that he did not find any noticeable
thing. The road is a very busy road. He recorded the statement
of witness. Later on, he came to know that the injured died
during his treatment. He had received the post-mortem report
and had filed the chargesheet.
In his cross-examination, he has stated to have recorded the
re-statement of Kameshwar Rai at Sitalpatti. When he had
recorded the re-statement of Kameshwar at that time, he had
wounds, when there was some healing he had come back but
thereafter his condition worsened and he again went to Patna.
He has stated that there is no counter case of this case. Case No.
17/10 Taraiya P.S. was registered after this case. This Court has
noticed from the protest petition (Exhibit 'D') that the
informant has mentioned about the case registered on
15.03.2010 in Taraiya P.S. on the basis of a Complaint Case No.
1919/09 dated 12.06.2009.
39. This Court finds that in this case, the date of
occurrence is 04.06.2009. This private complaint was filed after
8 days of the occurrence. In this case, the respondent no. 2 has
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
not brought any evidence showing any injury to him. Thus, the
I.O. has stated that there was no counter case of the present
case.
40. Dr. Muneshwar Prasad Singh (PW-7) was the
Medical Officer in the Sadar Hospital, Chapra who has
conducted autopsy on the dead body of the deceased. He had
found the following injuries:-
"(i) one partially healed infected wound about 3/4" x
1/4" on the left side of upper part of abdomen with
surrounding excoriation of skin.
(ii) One infected wound about 1"x1" with
surrounding 5 stitches with granulation and
excoriation around the wound.
(iii) The abdomen was open in the mid line upper part
6"x3" with marks of stitches on the wound margins -
rectus muscle being visible through the gaping wound
with granulation and infection material over it, bluish
discolouration in the lower part."
41. PW-7 deposed on the injuries suffered by
Kameshwar Rai which he noticed in course of postmortem. He
has recorded that "shock and exhaustion due to infection of the
wounds, gaping of the abdominal wound and injury to intestine
were the cause of death". He has further opined that all the
injuries may be possible by chura. He has proved the post
mortem report which has been marked Exhibit '3'. In his cross-
examination, PW-7 has stated that "there are many causes of
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
infection. Carelessness of patient may be one of the causes of
infection. If proper treatment was held, there was least chance
of infection. The pus formation was held in the intestine. The
death of the deceased was caused due to infection and pus
formation".
42. It is evident from the deposition of Doctor (PW-7)
that the wound caused to the deceased had developed infection
and pus formation had taken place which proved fatal and the
informant died. Explanation 2 to Section 299 IPC takes care of
this aspect of the matter. It is evident that the death had taken
place because of the injury caused to the deceased.
43. We have further noticed the evidence of another Dr.
Surendra Prasad Singh (PW-9) who had examined the
informant in the Referral Hospital, Taraiya on 04.06.2009. He
had found the following injuries on his body:-
"(1) incised wound 2" x 1" deep to chest cavity on
the lower part of the back of chest on the left side.
(2) Incised wound on the right shoulder joint about
1" x ½" x skin deep.
Opinion of the both injury reserved and Patient is
referred to Sadar Hospital Chapra for further and
proper treatment.
Mark of Identification - a mole on left upper arm."
44. PW-9 has proved the injury report (Exhibit '4'). It
clearly shows that he had found incised wound deep to chest
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
cavity on the lower part of the back of the chest and incised
wound on the right shoulder joint. Thus, the prosecution story
of two repeated dagger blow inflicted by the accused
(respondent no. 2) has been duly proved.
45. One of the witnesses, namely, Shri Bhagwan Rai
(PW-8) has been declared hostile. He was cross-examined by
the prosecution and his attention was drawn towards his
previous statement made before police. He has stated in his
cross-examination that he knew Baijnath Singh because he is
Dak Munshi but he did not know about the occurrence.
46. We have noticed that the prosecution has duly
proved the inquest report (Exhibit '5) and the post mortem
report as also report of the PMCH to show that two repeated
dagger blow were given to the deceased one of which
ultimately proved fatal to the life of the informant
47. This Court finds that in this case, the prosecution
has proved the date, time, place and manner of occurrence.
Prosecution witnesses are reliable, they have withstood the test
of cross-examination. The defence has, though questioned the
place of occurrence but it is well proved that Ram Pravesh and
Rajendra are brothers, they have their houses besides each other
which is hardly situated at a distance of one 'laggi' only. I.O.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
has given the description of the place of occurrence. The
witnesses are consistent that the informant was attacked by
respondent no. 2 (Cr. Appeal (DB) No. 203 of 2023) and he
penetrated dagger into the left side on to the stomach of the
informant.
48. We have been left with the sole argument of
respondent no. 2 that the proximate cause of death of the
informant in this case is not relatable to the actual death. We
will examine this submission of learned Senior Counsel for the
respondent no. 2 hereinafter.
49. Section 299 IPC on which the learned trial court has
placed reliance reads as under:-
"299. Culpable homicide.--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.
Illustrations
(a) A lays sticks and turf over a pit, with the intention
of thereby causing death, or with the knowledge that
death is likely to be thereby caused. Z, believing the
ground to be firm, treads on it, falls in and is killed. A
has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does not know
it. A, intending to cause, or knowing it to be likely to
cause Z's death induces B to fire at the bush. B fires
and kills Z. Here B may be guilty of no offence; but A
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and
steal it; kills B, who is behind a bush, A not knowing
that he was there. Here, although A was doing an
unlawful act, he was not guilty of culpable homicide,
as he did not intend to kill B or cause death by doing
an act that he knew was likely to cause death.
Explanation 1.--A person who causes bodily injury
to another who is labouring under a disorder, disease
or bodily infirmity, and thereby accelerates the death
of that other, shall be deemed to have caused his
death.
Explanation 2.--Where death is caused by bodily
injury, the person who causes such bodily injury shall
be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the
death might have been prevented.
Explanation 3.--The causing of the death of a child in
the mother's womb is not homicide. But it may
amount to culpable homicide to cause the death of a
living child, if any part of that child has been brought
forth, though the child may not have breathed or been
completely born."
50. Section 300 IPC is the charging Section which
defines 'murder'. Section 300 with its five explanations are
being reproduced hereunder for a ready reference:-
"300. Murder.--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--
2ndly.--If it is done with the intention of causing
such bodily injury as the offender knows to be likely
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
to cause the death of the person to whom the harm is
caused, or--
3rdly.--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--
4thly.--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.
Illustrations
(a) A shoots Z with the intention of killing him. Z dies
in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a
disease that a blow is likely to cause his death, strikes
him with the intention of causing bodily injury. Z dies
in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in
the ordinary course of nature to cause the death of a
person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives
him such a blow as would not in the ordinary course
of nature kill a person in a sound state of health, here
A, although he may intend to cause bodily injury, is
not guilty of murder, if he did not intend to cause
death, or such bodily injury as in the ordinary course
of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound
sufficient to cause the death of a man in the ordinary
course of nature. Z dies in consequence. Here A is
guilty of murder, although he may not have intended
to cause Z's death.
(d) A without any excuse fires a loaded cannon into a
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
crowd of persons and kills one of them. A is guilty of
murder, although he may not have had a premeditated
design to kill any particular individual.
Exception 1.--When culpable homicide is not
murder.--Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the
death of any other person by mistake or accident.
The above exception is subject to the following
provisos:--
First.--That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
Secondly.--That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.
Thirdly.--That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.
Explanation.--Whether the provocation was grave
and sudden enough to prevent the offence from
amounting to murder is a question of fact.
Illustrations
(a) A, under the influence of passion excited by a
provocation given by Z, intentionally kills Y, Z's child.
This is murder, inasmuch as the provocation was not
given by the child, and the death of the child was not
caused by accident or misfortune in doing an act
caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on
this provocation, fires a pistol at Y, neither intending
nor knowing himself to be likely to kill Z, who is near
him, but out of sight. A kills Z. Here A has not
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to
sudden and violent passion by the arrest, and kills Z.
This is murder, inasmuch as the provocation was
given by a thing done by a public servant in the
exercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z
says that he does not believe a word of A's deposition,
and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in the exercise of the
right of private defence, lays hold of A to prevent him
from doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is murder,
inasmuch as the provocation was giving by a thing
done in the exercise of the right of private defence.
(f) Z strikes B. B is by this provocation excited to
violent rage. A, a bystander, intending to take
advantage of B's rage, and to cause him to kill Z, puts
a knife into B's hand for that purpose. B kills Z with
the knife. Here B may have committed only culpable
homicide, but A is guilty of murder.
Exception 2.--Culpable homicide is not murder if the
offender in the exercise in good faith of the right of
private defence of person or property, exceeds the
power given to him by law and causes the death of the
person against whom he is exercising such right of
defence without premeditation, and without any
intention of doing more harm than is necessary for the
purpose of such defence.
Illustration
Z attempts to horsewhip A, not in such a manner as to
cause grievous hurt to A. A draws out a pistol. Z
persists in the assault. A believing in good faith that he
can by no other means prevent himself from being
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
horsewhipped, shoots Z dead. A has not committed
murder, but only culpable homicide.
Exception 3.--Culpable homicide is not murder if the
offender, being a public servant or aiding a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will
towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender's having taken undue advantage or acted
in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which
party offers the provocation or commits the first
assault.
Exception 5.--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.
Illustration
A, by instigation, voluntarily causes Z, a person under
eighteen years of age to commit suicide. Here, on
account of Z's youth, he was incapable of giving
consent to his own death; A has therefore abetted
murder."
51. On a bare perusal of Explanation 2 to Section 299
IPC, it would appear that where death is caused by bodily
injury, the person who causes such bodily injury shall be
deemed to have caused death, although by resorting to proper
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
remedies and skillful treatment, the death might have been
prevented. The learned trial court has understood otherwise. It
has taken a view that with proper and skillful treatment of the
informant, the death could have been avoided and the infection
as well as formation of pus in the wound is the cause of death.
This seems to have prevailed upon the learned trial court.
52. Further, we find that the learned trial court has held
that it is a culpable homicide. The learned trial court, however,
erred in taking a view that it is a case of culpable homicide not
amounting to murder. In this case, respondent no. 2 has inflicted
two dagger blows upon the informant. One of the dagger blows
could hit on the shoulder but it is nearer to the neck, luckily the
informant suffered only a skin deep injury on his shoulder but
the another blow was fatal, it hit on a vital part of the body and
there is no iota of doubt that the dagger blows were inflicted
with intention of causing such bodily injury which the
respondent no. 2 knew to be likely to cause death of the person
to whom such an injury is caused and the injuries is sufficient in
an ordinary cause of nature to cause death. The intention of the
appellant to kill the informant is found in the fact that he twice
attacked the informant aiming vital part of the body. The blow
suffered by the informant on his shoulder could have hit any
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
other vital part of the body but he survived it, still the appellant
did not stop and gave second hit on to his stomach.
53. The finding of the learned trial court in the
following paragraphs may be seen:-
"IkzLrqr okn esa vfHk;qDr }kjk xqyj ds isM+ ds iSlk dks ysdj
ckrk&ckrh gksuk vkSj blh nkSjku pkdw ekjuk ;g ladsr nsrk
gS fd vfHk;qDr dks Kku gS fd tks d`R; og dj jgk gS ml
d`R; ls e`R;q dkfjr dj ldrk gSA"
54. The learned trial court has further held in the last
part of its' judgment as under:-
"vfHk;kstu dh vksj ls ijhf{kr lkf{k;ks ds lk{; ls Li'V gS
fd vfHk;qDr ;g Kku j[krs gq, lwpd¼e`rd½ ds {kfr dkfjr
fd ml {kfr ls mldh e`R;q gks ldrh FkhA vfHk;qDr ds {kfr
ds dkj.k lwpd ¼e`rd½ ds t[e esa laØe.k gqvk vkSj laØe.k
rFkk isV esa eokn cuusa ds dkj.k lwpd ¼e`rd½ dh e`R;q gks
x;hA"
55. The observations of the learned trial court that had
there been a proper and skilled treatment, the death could have
been avoided, cannot come to the rescue of the accused
(respondent no. 2).
56. The act of respondent no. 2 is apparently covered
under Section 300 IPC.
57. We have taken note of the five Exceptions
hereinabove. It is not the case of defence that the dagger blow
was inflicted upon the informant due to any sudden and grave
provocation. The case would not fall in either of the Exceptions
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
1, 2, 3, 4 and 5. Some of the prosecution witnesses have stated
that there were exchange of words between the informant and
the respondent no. 2 when respondent no. 2 took out a dagger
and assaulted the informant twice. It is not a case of grave and
sudden provocation. The fact that the respondent no. 2 was
carrying a dangerous weapon such as a dagger with him and he
intercepted the informant in another village 'Andharwari',
stabbed him and gave repeated dagger blow only proves that
the accused-respondent no. 2 had intercepted the informant with
a pre-meditation of mind, armed with a weapon in his
possession, he stopped, indulged in exchange of words, took
out his dagger, stabbed the informant and fled away.
58. Learned Senior Counsel for the respondent no. 2
has relied upon the judgment of Hon'ble High Court of Madhya
Pradesh in the case of Imran Khan (supra) but we find that
what has been held by the Hon'ble High Court in paragraph
'11' of the judgment would go against respondent no. 2.
Paragraph '11' of the judgment in the case of Imran Khan
(supra) reads as under:-
"11. An act is said to cause death when death
results from the act itself or from some
consequences necessarily or naturally flowing
from the act, and reasonably contemplated as its
result. Where without the intervention of any
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
considerable change of circumstances death is
connected with the act of violence by a chain of
causes and effects death must be regarded as the
proximate and not too remote a consequence of
the act. The cause must not only be the cause a
sine qua non, but it must also be a cause
reasonably proximate, but the doctrine of
criminal creation has reasonable limits. An injury
may lead to death. Death may be instantaneous
or may be delayed. The injury may lead to shock,
excessive bleeding, coma, syncope etc. and cause
death; in such a case, injury and death have a
clearly perceptible and direct nexus and there
will be no difficulty in finding that death is the
direct result of injury. The decision may not be
so easy in a case where death is caused not
directly by the injury itself, but due to a
complication or development or in a case where
death is delayed or due to a later complication or
development, court has to consider the nature of
the injury, complication or development and
attendant circumstances. If the complication or
development is the natural or probable or
necessary consequence of the injury and if it is
reasonably contemplated as its result, the injury
can be said to have caused death. If, on the other
hand, the chain of consequences is broken or if
there is unexpected complication causing new
mischief, the relation of cause and effect is not
established or the causal connection is too
remote and the injury cannot be said to have
cause death. If the original injury itself is of a
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
fatal nature, it makes no difference that death is
actually caused by a complication naturally
flowing from the injury and not the injury itself
since causal connection is proximate."
(underline is mine)
59. In the kind of materials present on the record, we
find that the prosecution has been able to prove a case of
'murder' as defined under Section 300 IPC. The learned trial
court has erred in acquitting the accused-respondent no. 2 of the
charge under Section 302 IPC. This Court reaches to an
irresistible conclusion that the respondent no. 2 assaulted the
informant with a pre-meditation of mind, intentionally caused
two injuries, one of which hit on the vital part of the body
which was sufficient in ordinary course of nature to cause
death.
60. This Court would, therefore, allow the Cr. Appeal
(DB) No. 203 of 2023. The respondent no. 2 is held guilty of
commission of offence punishable under Section 302 IPC. The
conviction of respondent no. 2 is altered from Section 304 Part
II to Section 302 IPC.
61. For the reasons discussed hereinabove, we find no
merit in Cr. Appeal (SJ) No. 119 of 2023. Hence, Cr. Appeal
(SJ) No. 119 of 2023 is dismissed.
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
62. The respondent no. 2 is on bail. His bail bond is
cancelled and he is taken into custody. He will be sent to Beur
Jail for the present.
63. As prayed by learned Senior Counsel for
respondent no.2, the records are kept for hearing on sentence
day after tomorrow i.e. 07.05.2025. Respondent No.2 shall be
produced before this Court on 07.05.2025 at the time of hearing
on sentence.
(Rajeev Ranjan Prasad, J)
( Ashok Kumar Pandey, J)
arvind/sushma2-
AFR/NAFR AFR
CAV DATE 01.05.2025
Uploading Date 05.05.2025
Transmission Date 05.05.2025
