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Madan Sahni & Ors vs The State Of Bihar on 21 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.208 of 2015
Arising Out of PS.Case No. -183 Year- 2007 Thana -PAROO District- M UZAFFARPUR

1. Madan Sahni son of Late Sarjug Sahni

2. Julum Sahni son of Late Sarjug Sahni

3. Pramod Sahni son of Late Sitaram Sahni

4. Kailash Sahni son of Sri Julum Sahni

5. Kishun Sahni son of Sri Sonar Sahni

6. Binod Sahni son of Late Sitaram Sahni

7. Bishun Sahni son of Sri Julum Sahni

8. Sonar Sahni @ Sunar Sahani, son of Late Sarjug Sahni

9. Subodh Sahni son of Sri Madan Sahni All residents of Village- Raghunathpur,
P.S. Paroo, District Muzaffarpur
…. …. Appellant/s
Versus

1. The State of Bihar
…. …. Respondent/s

Appearance :

For the Appellant/s : Mr. U.K. Shukla, Adv.
Mr. Rajesh Ranjan, Adv.
For the State : Mr. Parmeshwar Mehta, APP
For the Informant : Mr. Amit Kumar Rakesh, Adv.
Mr. Poonam Kumari, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV JUDGMENT
Date: 21-03-2018

Appellants, Madan Sahni, Julum Sahni, Pramod

Sahni, Kailash Sahni, Kishun Sahni, Binod Sahni, Bishun Sahni,

Sonar Sahni @ Sunar Sahani and Subodh Sahni have been found

guilty for an offence punishable under Section 148 IPC and each one

has been sentenced to undergo RI for 3 years as well as to pay fine of

Rs. 2000/- each in default thereof, to undergo RI for 9 months, under

Section 307 IPC, each one has been sentenced to undergo RI for 10

years as well as to pay fine of Rs. 5,000/- in default thereof, to

undergo RI for 1 year additionally, under Section 304 Part-II/149 IPC,
Patna High Court CR. APP (SJ) No.208 of 2015 2

each one has been sentenced to undergo RI for 10 years as well as to

pay a fine of Rs. 5,000/- and in default thereof, to undergo RI for 1

year additionally, with a further direction to run the sentences

concurrently by the Additional Sessions Judge-II, Muzaffapur in

Sessions Trial No. 537/08/538/08 vide judgment of conviction dated

13.03.2015 and order of sentence dated 20.03.2015.

2. Bashisht Sahni (PW 7) gave his Fard-e-beyan on

28.09.2007 at about 9.30 PM while he was admitted at Paroo Hospital

in an injured condition disclosing therein that on the same day at

about 7.30 PM he along with his father Chandeshwar Sahni was

sitting at his Darwaza, at that very time his covillagers, Madan Sahni

armed with country made pistol, Bishun Sahni armed with Bhala,

Subodh Sahni armed with Dab, Julum Sahni, Bishun Sahni, Sonar

Sahni and Kailash Sahni armed with Lathi respectively, Pramod Sahni

armed with pistol and Binod Sahni armed with sword forming an

unlawful assembly came and began to abuse. They further said that

why his she-goat has gone to their field over which he replied that it

will not go but don‟t abuse whereupon all the accused persons began

to assault him as well as his father. His mother, Saraswati Devi,

Bhabho, Urmila Devi and cousin brother Ramlal rushed in rescue who

were also brutally assaulted by them. They raised alarm whereupon

villagers came and rescued them. During midst of assault, Pramod had
Patna High Court CR. APP (SJ) No.208 of 2015 3

given a blow by butt of pistol over his head as a result of which, he

sustained injury whereupon, blood oozen out. His father became

unconscious. They all were lifted to hospital. His father, being under

precarious condition, has been referred to SKMCH. It has also been

disclosed that Pramod Sahni, during midst of occurrence, took away

mobile belonging to his father.

3. Initially, Paroo PS Case No. 183/2007 was

registered under Sections 147, 148, 149, 447 323, 324, 307, 504 of the

IPC but during course of conduction of investigation, as Chandeshwar

died while undergoing treatment at SKMCH, on account thereof, vide

order dated 19.11.2007, Section 302 of the IPC was added and in the

aforesaid background charge-sheet was also submitted at different

stages inconsonance with appearance of the accused persons

whereupon two sessions trial bearing Sessions Trial No. 537/2008 as

well as Sessions Trial No. 538/2008 were drawn up but, before stage

of framing of charge vide order dated 20.07.2009 both the Sessions

Trial were amalgamated and accordingly, proceeded meeting with

ultimate result, subject matter of the instant appeal.

4. Defence case as is evident from the mode of

cross-examination as well as statement recorded under Section 313

CrPC is that of complete denial of the occurrence. It has also been

pleaded that the prosecution party were aggressors who brutally
Patna High Court CR. APP (SJ) No.208 of 2015 4

assaulted the members of accused persons and for that they have

instituted a criminal case and only to put safeguard upon their interest

got this case instituted. However, neither oral nor documentary

evidence has been adduced on behalf of defence.

5. In order to substantiate its case, prosecution had

examined altogether 11 PWs, those are, PW-1, Jaliya Dev, PW-2,

Urmila Devi, PW-3, Champa Devi, PW-4, Ram Lal Sahni, PW-5,

Mantosh Kumar, PW-6, Sarswati Devi, PW-7, Bashistha Sahni, PW-

8, Ramanand Tiwari, PW-9, Dr. Mahesh Prasad, PW-10, Dr. Om

Prakash and PW-11, Sachindra Sahni. Side by side had also exhibited

Ext-1, 1/1, Signature of witnesses over Fard-e-beyan, Ext-2, Formal

FIR , Ext-3 Series, injury report of respective injured, P.M.-X for

identification. As stated above neither oral nor documentary evidence

has been adduced on behalf of defence.

6. Learned counsel for the appellants, while

challenging the finding of conviction and sentence, has submitted that

the learned lower court completely misconstrued the materials

available on the record and that being so, the judgment impugned

would not survive. In order to buttress his plea, the learned counsel

for the appellants has submitted that from the evidence available on

record, it is apparent that majority of the witnesses have admitted

presence of counter-case for the same occurrence at the end of the
Patna High Court CR. APP (SJ) No.208 of 2015 5

appellants and that being so, the learned lower court should have

considered that prosecution had suppressed the genesis as well as

manner of occurrence on account of their failure to explain injuries

whereupon, judgment of conviction would not have been recorded.

Apart from this, it has also been submitted that whoever been

examined in this case, are family members and that being so, their

evidences are to be taken into consideration in the background of the

fact that they happen to be accused in counter-case coupled with the

fact that there happens to be absence of independent witnesses and in

the aforesaid facts and circumstances, the whole scenario of the

occurrence as alleged became suspicious one whereupon, instant

appeal justifies annulment of the judgment impugned.

7. Furthermore, it has also been submitted that when

the evidence of each of the witnesses is taken up individually as well

as collectively inconsistency over manner of occurrence as well as

genuineness of occurrence is found duly exposed affecting upon the

genuineness of the prosecution version. Moreover, when the

evidences are taken together along with the objective finding of the

Investigating Officer, it is found that prosecution case is found out of

breath. It has also been submitted that when the evidence of both the

doctors are taken together inconsonance with the ocular evidence, are

found inconsistent to each other casting doubt over turstworthiness of
Patna High Court CR. APP (SJ) No.208 of 2015 6

the PWs and so, cumulative effect did not justify the finding having

been recorded by the learned lower court.

8. On the other hand, learned APP while supporting

the finding recorded by the learned lower court, has submitted that

after perusal of the judgment impugned, it is crystal clear that all pros

and cons visualizing in the facts and circumstances of the case, have

duly been considered by learned lower court and after explaining the

same with cogent, legal reasons ultimately, concluded that the

prosecution case having been duly substantiated and that being so, the

judgment of conviction did not attract interference.

9. PW-10, Dr. Om Prakash had examined the injured

on 28.09.2007 at 10.45 PM onwards and found the following:-

A. Urmila Devi

(i) Lacerated wound ½” x ½” x skin deep (bleeding)
on right temporal region on scalp.

(ii) Bruise 4″ x ½” red in colour with swelling and
tenderness 4″ x 3″ on right shoulder and upper part of
back of chest caused by hard and blunt object.
Nature– Simple,
Age of Injury– within six hours.

B. Basistha Sahni

(i) incised wound ½” x ¼” x 1/6″, bleeding middle of
forehead.

(ii) Pain and tenderness on right elbow. Caused by
injury no.(i) by sharp cutting instrument and (ii) hard
and blunt.

Nature– Simple,
Age of Injury– within six hours.

C. Saraswati Devi

(i) Swelling 1″ x ½” with abrasion ½” x ½” bleeding
on lower hip.

(ii) Swelling 2 ½” x 2″ on right side of forehead.

Patna High Court CR. APP (SJ) No.208 of 2015 7

(iii) Pain and swelling back of right shoulder, caused
by hard and blunt substance.

Nature– Simple,
Age of Injury– within six hours.

D. Ram Lal Sahni.

(i) Incised wound 1″ x ¼” x skin deep. Bleeding on
upper part of left ear.

(ii) Pain and swelling 2″ x1″ on right middle finger,
caused by:- Injury No. (i) by sharp cutting instrument
and No. (ii) by hard and blunt substance,
Nature– Simple,
Age of Injury– within six hours.

E. Chandeshwar Sahni.

(i) He was found stupre condition and not responding
to command. Pupil (right)

(ii) Swelling on scalp 3″ x 3″ on right temporal
region and 3″ x 2 ½” on left temporal region.

(iii) Swelling 2″ x 1″ near left wrist with abrasion 2″
x ½” red in colour, caused by hard and blunt object.
The patient was treated at this PHC on conservative
line. Then patient was referred to SKMC,
Muzaffarpur for further treatment.

10. PW-9 is Dr. Mahesh who conducted the

postmortem over the dead body of Chandeshwar Sahni and found the

following:-

Chandeshwar Sahni

(i) Bruise on entire part of right hand.

(ii) Abrasion on darson of right hand below wrist 1″ x
¼”.

(iii) On opening of scalp blood clot was found on
skull with fracture of right parietal bone. On opening
of skull was found.

Cause of death:- Shock haemorrhage and coma.
Cause of injury:- Hard and blunt substance.
Time elapsed since death:- 4 to 18 hours.

11. From the evidence of both the doctors, it is
Patna High Court CR. APP (SJ) No.208 of 2015 8

evident that deceased, Chandeshwar Sahni had sustained injuries

caused by hard and blunt substance. From the evidence of PW-9,

Doctor it is evident that he was not at all cross-examined with regard

to his finding rather, he was cross-examined otherwise whether those

ante-mortem injuries could be caused on fall from roof or by motor

accident and he had shown probability of aforesaid eventualities on

that very score. That being so, presence of ante-mortem injuries over

person of deceased Chandeshwar Sahni as well as injuries over person

of other injured is found duly substantiated. In the aforesaid

background, now evidence of PWs is to be seen.

12. PW-1 is Jalia Devi, wife of informant. She had

deposed that on the alleged date and time of occurrence, she was

cooking. Madan Sahni, Julum Sahni, Pramod Sahni, Kailash Sahni,

Kishun Sahni, Binod Sahni, Bishun Sahni, Sonar Sahni @ Sunar

Sahani and Subodh Sahni armed variously came and began to abuse

her husband, father-in-law and during course thereof, they have

assaulted both of them with Lathi, Danda, fists and slaps and on

account thereof, her husband sustained injuries over his head. Her

father-in-law was so brutally assaulted that he began to vomit excreta.

Her mother-in-law was also assaulted over her head. Her Gotni was

also assaulted over her head as well as over other parts of body. She

was also assaulted with Lathi over her neck. They were taken to
Patna High Court CR. APP (SJ) No.208 of 2015 9

Government Hospital and therefrom, her father-in-law was referred to

Medical College, Muzaffarpur where he died during course of

treatment. Identified the accused in dock. During cross-examination at

para-7, there happens to be some sort of contradiction. At para-8, she

had further stated that they have got no dispute with the accused

persons since before the occurrence. At the relevant time, she was

possessing 8-9 she-goats. Her she-goat had grazed crop of Julum

Sahni and for that, Madan Sahni had complained. Madan and Julum

are both full brothers and in the aforesaid background Mar-peet took

place. She had further admitted that Julum was also assaulted. she had

further admitted that Julum had also instituted case against them. She

had further stated that Julum was not admitted at the hospital. In para-

10, she had disclosed that her Darwaza and field is contiguous. Mar-

peet took place at Darwaza. At that very time, she was cooking. After

hearing sound of commotion, she came out and had seen her father-in-

law, husband, Gotni unconscious. Ramlal Sahni and other came

subsequently. Then thereafter, they gave water to the injured

whereupon they regained sense and then, they were taken to police

station and then to hospital. Statement of her husband was recorded at

the police station. She had further stated that whatever been disclosed

by her husband as well as Gotni, on the basis thereof, she had

deposed.

Patna High Court CR. APP (SJ) No.208 of 2015 10

13. PW-2 is Urmila Devi. She had stated that on the

alleged date and time of occurrence, she was inside her Angan, having

been engaged in cooking. As the lamb had gone to the field of

accused in the aforesaid background, Madan Sahni, Julum Sahni,

Pramod Sahni, Kailash Sahni, Kishun Sahni, Binod Sahni, Bishun

Sahni, Sonar Sahni @ Sunar Sahani and Subodh Sahni armed with

Lathi, Pistol came and began to hurl. During course thereof, they

assaulted her inlaws. Bashisht Sahni, herself, her Devar, Ramlal were

also assaulted while they had gone to rescue. Then thereafter, they had

gone to Paroo police station wherefrom they were immediately sent to

hospital where Fard-e-beyan of Bashisht Sahni was recorded. Seeing

the condition of Chandeshwar critical, he was sent to Medical College

where during course of treatment, died. Identified the accused. During

cross-examination, she had stated that her statement was recorded by

the police. She had also stated that she had stated before the police

that accused persons have assaulted with Lathi, pistol and Sonta. At

para-7, she had stated that it was a dark night. There was flood and on

account thereof, ingress and outgress was difficult. In para-9, she had

stated that Pramod Sahni took away mobile. In para-10, she had stated

that she came out from her house after hearing alarm. In para-11, she

had stated that her father-in-law, mother-in-law, Bhainsur were

conscious even after sustaining injuries. Blood was oozing out from
Patna High Court CR. APP (SJ) No.208 of 2015 11

the wound. Her father-in-law was lying on the ground. Blood was

oozing out from his head, nose, mouth. In para-12, she had further

stated that apart from aforesaid three, her Devar, Ramlal was also

present. She had further stated that she was also assaulted by Lathi.

She was given 5-6 blows, as a result of which, she sustained injuries

over her head as well as other parts her body. She had further stated at

para-17, that she had also seen in Julum Sahni in an injured condition.

She had further admitted at para-18 that counter case has been

instituted at their end wherein Bashisht Sahni had gone to jail.

14. PW-3 is Champa Devi. She had narrated that on

the alleged date and time of occurrence, she was inside her house.

After hearing sound of alarm, she rushed to the house of Chandeshwar

Sahni where she saw, Bashishth, Ramlal, Upendra, Chandeshwar and

their family members were being assaulted by Madan Sahni, Julum

Sahni, Pramod Sahni, Kailash Sahni, Kishun Sahni, Binod Sahni,

Bishun Sahni, Sonar Sahni @ Sunar Sahani and Subodh Sahni with

Lathi and Sonta. On account of assault, Chandeshwar died at Medical

College, Muzaffarpur where he was undergoing treatment. Rest

injured were treated at Paroo Hospital. Identified the accused. During

cross-examination at para-5, she had stated that during course of her

statement before the police, she had stated that on hearing uproar, she

rushed to the house of Chandeshwar where all the accused (named)
Patna High Court CR. APP (SJ) No.208 of 2015 12

had assaulted the victims. She had also stated that Chandeshwar was

murdered by them. In para-6, she had stated that deceased

Chandeshwar was her brother. She remained at her Naihar making

frequent visit to her Sasural. In para-8, she had given her presence by

way of stating that her house as well as house of Chandeshwar is

intervened by two houses. Binda Sahni, Bhuthar Sahni had got their

houses in the vicinity of Chandeshwar. In para-9, she had further

stated that parties were not on strained relationship since before

relating to land. She had further stated that Mar-peet took place before

registration of the case. In para-10, she had stated that all the accused

persons belong to one party while her brother Chandeshwar happens

to be of another party. In para-11, she had stated that at the time of

occurrence, she was taking food. In para-12, she had stated that there

is no electric connection in her village. It was moonlit night. In para-

13, she had stated that after hearing uproar, she rushed to the place of

occurrence where she saw Chandeshwar in an unconscious and

injured condition. He was alive, blood was oozing out from his

injuries. Son of Chandeshwar and daughter-in-law were present.

Jamun, Parmeshwar and her husband were also present. They were

talking about treatment.

15. PW-4 had deposed that on the alleged date and

time of occurrence he along with his brother Shyam Lal was at his
Patna High Court CR. APP (SJ) No.208 of 2015 13

house. After hearing alarm he rushed to house of Chandeshwar Sahni

where saw, Madan Sahni armed with Lathi, Julum Sahni, Bishun

Sahni, Sonar Sahni and Kailash Sahni armed with Lathi and danda

and were engaged in assaulting Chandeshwar Sahni and Bashishta

Sahni. They were assaulting with Lathi, Danda, rod and sword. They

were also abusing. They were also saying as to why they put their she-

goat in their field. Chandeshwar Sahni, Bashishta Sahni happen to be

his uncle as well as cousin brother respectively. Wife of

Chandeshwar, namely, Saraswati Devi was also assaulting. He was

also assaulted at left temporal region. Urmila, wife of Sachindra was

also assaulted. Jagiya Devi wife of Bashishta was also assaulted. They

were taken to Paroo hospital for treatment. He had made statement

before the police. He had further stated that Chandeshwar was

referred to medical college where during course of treatment died.

During cross-examination at para-7, he had stated that before

institution of this case both the parties have not indulged in fighting.

In para-8, he had further stated that Bashishta Sahni was not assaulted

relating to theft case. In para-10, he had stated that he was present at

his house on the alleged date of occurrence. When he reached at the

place of occurrence. He saw Chandeshwar lying. Blood was present

over the ground. In para-11, he had further stated that his brother

Shyam Lal, Sarswati Devi, Jagiya Devi, Urmila Devi, Santosh ,
Patna High Court CR. APP (SJ) No.208 of 2015 14

Sachindra, Champa, Tulsi, Jamuna and others were present since

before. In para-12, he had stated that Chandeshwar was conscious and

was wriggling. In para- 13, he had stated that he was assaulted by

Madan Sahni with Lathi whereupon, he fled away. In para-14, he had

further stated that he is not knowing whether Julum Sahni had

instituted any case whereunder he happens to be one of the accused.

Then at para-16, there happens to be contradiction relating to assault

over Saraswati Devi, Urmila Devi as well as he himself by assaults by

Madan Sahni. In para-18, he had again stated that female members

were present. All have sustained injuries. Blood was oozing out. He

had also sustained injury. In para-19, he had stated that after receiving

assault, he escaped therefrom. In para-20, he had stated that blood had

fallen over the ground from the injuries of the respective injured. In

para-21, he had stated that he stayed for half an hour at the place of

occurrence. He had further stated under para-22 that save and except

Chandeshwar all the injured were conscious. He had talked with other

injured. In para-24, he had stated that he was treated by the doctor. He

had denied the suggestion that being brother of the informant, he had

falsely deposed.

16. PW-5 is Matosh Kumar. On the date of

examination he was 16 years of age. Occurrence happens to be about

3 years ago and so, at that time, he was aged about 12-13 years.
Patna High Court CR. APP (SJ) No.208 of 2015 15

During course of his examination-in-chief, he had deposed that on the

alleged date and time of occurrence, he was reading at his Bathan.

After hearing alarm, he came to his house and saw Madan Sahni,

Julum Sahni, Pramod Sahni, Kailash Sahni, Kishun Sahni, Binod

Sahni, Bishun Sahni, Sonar Sahni @ Sunar Sahani and Subodh Sahni

indulged in assaulting his grand-father, Chandeshwar Sahni (since

deceased), Bashisht Sahni (uncle) Sarswati Devi (grand-mother),

Urmila Devi (mother) and Jagiya Devi. His grand father was lying.

When he intervened, he was assaulted by Madan Sahni with Lathi

over back. Then thereafter, the accused persons ran away therefrom.

All the injured were taken to Paroo hospital wherefrom his grand-

father was sent to Medical College where, during course of treatment,

died. Police had recorded his statement. During cross-examination at

para-6, there happens to be contradiction. In para-7, he had further

asserted that he was also examined by the doctor at Paroo Hospital. In

para-8, he had stated that the accused persons had not assaulted them

prior to the instant occurrence. In para-11, he had stated that his

Bathan lies three laggi west to his house intervened by the house of

his uncle. In para-12, he had stated that it was moonlit night. In para-

13, he stated that when he reached at place of occurrence, he had

found all the persons in injured condition. Blood was coming out from

the wounds. In para-14, he had stated that all the injured except his
Patna High Court CR. APP (SJ) No.208 of 2015 16

grand-father were conscious. In para-15, he had stated that when he

reached at the place of occurrence, apart from injured, Madan, Julum,

Pramod and others including accused persons as well as Champa

Devi, Tulsi Devi, Ram Lal were present. In para-16, he had stated that

accused persons fled away towards their house. Then had stated that

on his alarm, Tulsi, Champa, Jamuna and others came. In para-18, he

had stated that blood had fallen from the wounds of the respective

injured over their clothes, ground. Then had denied the suggestion

that on account of being nephew of the informant, he had deposed

falsely.

17. PW-6 is Saraswati Devi, wife of late

Chandeshwar Sahn. She had deposed that on the alleged date and time

of occurrence, she was in her courtyard. At that very time, Madan

Sahni, Julum Sahni, Pramod Sahni, Kailash Sahni, Kishun Sahni,

Binod Sahni, Bishun Sahni, and others (altogether 9) came and

assaulted her son, daughter-in-law and caused murder of her husband.

After occurrence they were taken to Paroo Hospital where they were

treated. Her husband was sent to Medical College where, during

course of treatment, succumbed. Police had recorded his statement.

During course of cross-examination at para-5, she had admitted that

Bashishth once upon a time, had gone to jail relating to Loot-maar. In

para-6, she had stated that they have not sustained assault before the
Patna High Court CR. APP (SJ) No.208 of 2015 17

present occurrence. Then at para-11 had denied the suggestion that her

husband was suffering from TB. In para-13, she had stated that she is

not remembering whether it was moonlit night or a dark night. In

para-15, she had stated that she along with Bashisth is residing in the

same house. In para-16, she had stated that the house of accused lies

north (after some distance), south, land of accused lies, East- house of

Tatwa lies in west of the PO land. In para-17, she had stated that at the

time of occurrence her daughter-in-law was cooking while she was

staying in the courtyard. In para-18, she had stated that when she

came out form the courtyard, she saw her husband lying unconscious.

Bashishth and Urmila were in injured condition. At that very time,

none was present familiar to her. In para-21, she had stated that save

and except her husband, other injured were conscious. Then had

denied the suggestion that being the mother of Bashishth, she had

deposed falsely.

18. PW-7 is informant Bashishtha Sahni. He had

deposed that on the alleged date and time of occurrence, he along with

his father was staying at his Darwaza. At that very time, Madan Sahni,

Julum Sahni, Pramod Sahni, Kailash Sahni, Kishun Sahni, Binod

Sahni, Bishun Sahni, Sonar Sahni @ Sunar Sahani and Subodh Sahni

came duly armed with. During course thereof, Madan was armed with

pistol while others were armed with sword, lathi and danda. They
Patna High Court CR. APP (SJ) No.208 of 2015 18

began to assault them. On hearing hue and cry, his Bhabho, mother,

brother, Ram Lal, Shyam Lal came in rescue who were also assaulted.

Villages came and rescued. Then thereafter, they were taken to Paroo

Hospital where police came and recorded his Fard-e-beyan,

(identified). He had further stated that during course of occurrence

Pramod had assaulted over his head by butt of pistol. Pramod took

away mobile of his father. His father was referred to Medical College

where during course of treatment, he died. During cross-examination

at para-6, he had stated that house of accused persons lies East-south

to his house. There happens to be no land dispute amongst them. On

the date of occurrence, the dispute arose relating to grazing of crop by

his she-goat. In para-7, he had disclosed relationship with other

injured as Mantosh happens to be his nephew, Jagiya to be his wife,

Urmila to be his Bhabho, Champa to be his Phua, Ram Lal, his cousin

brother and Saraswati to be his mother. In para-11, he had stated that

it was a dark night. In para-12, he had stated that during course of

occurrence, pistol, sword, bhala were also used. Then had denied to be

assaulted relating to theft case. In para-17, he had admitted that he had

gone to jail twice. He happens to be accused relating to 3-4 cases. In

para-19, he had stated that he had seen the accused persons in the

morning hour, evening hour and even at the time of assault. In para-

22, there happens to be contradiction relating to discloser made to
Patna High Court CR. APP (SJ) No.208 of 2015 19

police regarding carrying of sword by the accused persons. In para-23,

he had stated that statement of Sachindra, his brother was recorded at

Medical College. At para-26, 27, 28 there happens to be cross-

examination relating to cases having against him. In para-29, he had

admitted Ram Lal one of the witness to be his bailor. At para-31, he

had stated that at the time when Sachindra gave his statement, he was

conscious. Because of the fact that he happens to be illiterate, he had

not gone through the statement of Sachindra Sahni. He regained sense

after 1 ½ hours. Police had prepared inquest after death of his father

whereupon he had not signed. In para-32, shown boundary of PO,

North- Field of Manoj, South- His house, East-House of accused,

West-Ram Lal and others. In para-35, he had stated that in the Fard-e-

beyan, he had detailed the status of the accused who was armed with

what weapon. In para-37, he had stated that first of all altercation took

place for 2-4 minutes and then thereafter, they were assaulted. At that

very time, all the accused persons were duly armed with. First of all,

he was assaulted with fists and slaps, legs, weapon for 10-15 minutes.

He is not remembering who possessed sword. Then had said that for

the present he is not remembering who was armed with what weapon.

He, after sustaining injury, fell down. Blood had fallen over the clothe

as well as ground. In para-38, he had stated that after assault, he

became unconscious for a while but regained sense. Then informed
Patna High Court CR. APP (SJ) No.208 of 2015 20

Chowkidar. He had further stated that after regaining sense he had

seen injuries over his father. His father was lying over the ground

while other injured were standing. At that very time, so many persons

were present there. In para-41 he had stated that his alarm attracted

others also. In para-42 he had stated that witnesses have seen the

occurrence. Injured have already disclosed regarding the occurrence

and he also had deposed the same thing what he had perceived. In

para-43, he had stated that his father was unconscious being in injured

condition. In para-44, he had stated that occurrence took place for half

an hour. In para-45, he had stated that accused persons have taken

land on Batai which lies north to his house. House of Birbal Shankar

lies north to that plot. In para-48, he had denied to have seen injury

over person of Julum Sahni. In para-50, he denied the suggestion that

he happens to be hardened criminal and have got frequent visit of

criminals at his place and during course thereof, he quarreled with

them, sustained injury whereupon falsely implicated the accused

persons.

19. PW-11 is Sachindra Sahni who had deposed that

on the alleged date and time of occurrence, he was at his house. As his

she-goat had gone to the field of Madan Sahni, in the aforesaid

background, Madan Sahni, Julum Sahni, Pramod Sahni, Kailash

Sahni, Kishun Sahni, Binod Sahni, Bishun Sahni, Sonar Sahni @
Patna High Court CR. APP (SJ) No.208 of 2015 21

Sunar Sahani and Subodh Sahni began to abuse. His father protested

whereupon all the accused persons began to assault with lathi and

danda and he along with his brother, mother and other family

members rushed in rescue whereupon they were also assaulted. His

father became severely injured. With the help of villagers they came

to Paroo Hospital where they were treated while his father was

referred to Medical College where during course of treatment he died.

He had also identified his signature over Fard-e-beyan. During cross-

examination at para-2, he had stated that it was a dark night. In para-3,

he had further disclosed that they were on strained relationship since

before the occurrence but he had got no document. Then there

happens to be contradiction at para-4. In para-5, he had further stated

that Fard-e-beyan of his brother was recorded before proceeding to

Muzaffarpur from Paroo Hospital. He was present at that very time.

He had signed over the same. In para-6, he stated that as his brother

was unconscious on account thereof, he had made statement before

the police. His brother and father became unconscious at the house

itself. He had further stated that his father did not regain sense. He had

further admitted with regard to going to judicial custody by his

brother once, twice at an earlier occasion. In para-8, he had stated that

his she-goat had grazed mustard crop of accused from southern flank.

Maar-peet took place for half an hour. In para-9, he had stated that at
Patna High Court CR. APP (SJ) No.208 of 2015 22

the time of occurrence accused persons were armed with Bhala, pistol,

sword. They have used the same. All the injured have sustained

injuries over their head. After the occurrence, accused persons fled

away. People arrived at their alarm. They remained at Paroo Hospital

whole night. Then had denied the suggestion that his brother happens

to be criminal and on account thereof, there happens to be frequent

visit of the renown criminals during course thereof, there was scuffle

and on account thereof, they were assaulted. Getting an opportunity,

got this case instituted against the accused putting false and frivolous

allegations.

20. PW-8 is the Investigating Officer. He had

deposed that Fard-e-beyan of Bashishta was recorded on 28.09.2007

at Paroo Hospital (Exhibited the same). Then exhibited formal FIR.

On account of entrustment of investigation, he proceeded therewith.

He recorded further statement of the informant. He had also exhibited

injury report/requisitioned prepared by O/C relating to injured

Champa Devi, Urmila Devi, Ram Lal, Saraswati Devi, Jagiya Devi.

Visited place of occurrence which lies in the Sahni Tola of village-

Raghunathpur which happens to be Parti land lying in front of house

of informant as well as village road. He identified the place of

occurrence. North-Sahan Zameen of the informant and then field of

Manoj, South-Field of Pramod, East- soiling road and house of Saryu
Patna High Court CR. APP (SJ) No.208 of 2015 23

Sahni, West-house of Shyam Lal. He had seen drop of blood spread

over. On 29.09.2007, he had arrested some of the accused. He had

received supervision report issued by DSP on 05.10.2007. On

28.09.2007, Chandeshwar was referred to SKMCH. On 30.09.2007,

he received telephonic information relating to death of Chandeshwar

during course of treatment at SKMCH. He had received postmortem

report from Ahiyapur PS. He had received injury report of respective

injured. Then thereafter, keeping the investigation pending against

others submitted charge-sheet against six accused (detailed). During

cross-examination at para-5, he had stated that though he had not

mentioned the fact in the case diary that injured Chandeshwar was

unconscious but he had not recorded his statement on account of

being unconscious. He had further stated that he had got no personal

knowledge regarding criminal antecedent of the informant. He had

further stated who shown the place of occurrence, he had not

mentioned in the case diary. In para-6, he had further stated that he

had not seized blood stained earth from the place of occurrence. In

para-7, there happens to be contradiction relating to witness Jagiya

Devi, in para-8, relating to witness Urmila Devi, in para-9 relating to

Ramlal Sah and in para-10 relating to witness, Mantosh. In para-12,

he had admitted the fact that accused Julum Sahni had also instituted a

case. Then had denied the suggestion that his investigation happens to
Patna High Court CR. APP (SJ) No.208 of 2015 24

be cryptic one.

21. With regard to deceased, Chandeshwar Sahni,

from the evidence of PW-9, the doctor who had conducted

postmortem over dead body of Chandeshwar on 30.09.2007, apart

from ante-mortem injuries over his right hand, on opening of scalp,

the doctor had found fracture of parietal bone as well as injury was

found thereupon. The aforesaid finding is found duly substantiated

with the evidence of PW-10, another doctor who had earlier examined

all the injured including deceased, Chandeshwar Sahni. At that very

time, Chandeshwar Sahni was not responding as well as injuries were

found over his scalp as well as hand showing duly inter-supportive.

22. In likewise manner, injuries as found by PW-10

over person of other injured did support the allegation out of whom

over person of Urmila, one injury was found over temporal region of

scalp though simple in nature. One incised wound over Bashishtha

Sahni, though simple in nature. One injury over forehead of Saraswati

Devi, one incised injury over upper part of left year though simple in

nature over Ramlal Sahni. From the ocular evidence, it is apparent

that they had substantiated the manner of assault as well as place of

occurrence.

23. From the deposition of witnesses, it is evident

that witnesses had admitted regarding presence of counter-case having
Patna High Court CR. APP (SJ) No.208 of 2015 25

at the end of one of the appellants, Julum Sahni coupled with presence

of injury over Julum Sahni but, during course of trial neither any DW

has been examined nor the injury report, FIR of the counter case has

been made an exhibit of the record whereupon the nature of the injury

if any sustained by appellant/accused, Julum Sahni, is not at all found

properly surfaced. There happens to be consistent finding that mere

presence of counter case or injuries over the person of accused, will

not cast any kind of obligation over the prosecution to explain unless

and until the injuries are grievous in nature.

24. In the case of Rajendra Singh v. State of Bihar

as reported in 2000 Cr.L.J. 2199, it has been held by the Hon‟ble

Apex Court as follows:-

3. So far as the question whether non-

explanation of the injuries on accused Rajender ipso
facto can be held to be fatal to the prosecution case, it
is too well settled that ordinarily the prosecution is
not obliged to explain each injury on an accused even
though the injuries might have been caused in course
of the occurrence, if the injuries are minor in nature,
but at the same time if the prosecution fails to explain
a grievous injury on one of the accused person which
is established to have been caused in course of the
same occurrence then certainly the Court looks at the
prosecution case with little suspicion on the ground
that the prosecution has suppressed the true version
of the incident. In the case in hand accused appellant
Rajender had one penetrating wound, three incised
wound and one lacerated wound and of these injuries
the penetrating wound on the left axillary area in the
5th inter costal space ½ x 1/3 x ¾ was grevious in
nature as per the evidence of doctor PW-3 who had
examined him. On the basis of the evidence of PW-3
Patna High Court CR. APP (SJ) No.208 of 2015 26

as well as PW-11 the Courts have come to the
conclusion that there is no room for doubt that the
appellants and their men had injuries on their person
on the date of occurrence. The question, therefore,
remains to be considered is whether non-explanation
of said injuries on accused appellant Rajender can
form the basis of a conclusion that the prosecution
version is untrue. In Mohar Rai and Bharath Rai vs.
State of Bihar (1968) 3 SUPREME COURT
REPORTS – 525, this Court had held that the failure
of the prosecution to offer any explanation regarding
the injuries found on the accused shows that the
evidence of the prosecution witness relating to the
incident is not true or at any rate not wholly true and
further those injuries probabilise plea taken by the
accused persons. But in Lakshmi Singh vs. State of
Bihar (1976) 4 Supreme Court Cases (Crl.) 671, this
Court considered Mohar Rai (Supra) and came to
hold that non-explanation of the injuries on the
accused by the prosecution may affect the
prosecution case and such non-explanation may
assume greater importance where the evidence
consists of interested or inimical witnesses or where
the defence gives a version which competes in
probability with that of the prosecution. The question
was considered by a three Judge Bench of this Court
in the case of Vijayee Singh vs. State of U.P. (1990)
3 Supreme Court Cases 190, and this Court held that
if the prosecution evidence is clear, cogent and
creditworthy and the Court can distinguish the truth
from the falsehood the mere fact that the injuries are
not explained by the prosecution cannot by itself be a
sole basis to reject such evidence and consequently
the whole case and much depends on the facts and
circumstances of each case. In Vijayee Singhs case
(supra) the Court held that non-explanation of injury
on the accused person does not affect the prosecution
case as a whole. This question again came up before
a three Judge Bench recently in case of Ram Sunder
Yadav and Others vs. State of Bihar (1998) 7
Supreme Court Case 365, where this Court re-
affirmed the statement of law made by the earlier
three Judge Bench in Vijayee Singhs case(supra) and
also relied upon another three Judge Bench decision
Patna High Court CR. APP (SJ) No.208 of 2015 27

of the Court in Bhaba Nanda Sarma and Others vs.
State of Assam (1977) 4 Supreme Court Cases 396,
and as such accepted the principle that if the evidence
is clear, cogent and creditworthy then non-
explanation of the injury on the accused ipso facto
cannot be a basis to discard the entire prosecution
case. The High Court in the impugned judgment has
relied upon the aforesaid principle and examined the
evidence of the four eye witnesses and agreeing with
the learned Sessions Judge came to the conclusion
that the prosecution witnesses are trustworthy and,
therefore, non- explanation of injury in question
cannot be held to be fatal, and we see no infirmity
with the said conclusion in view of the law laid down
by this Court, as held earlier. We, therefore, are not
persuaded to accept the first submission of Mr.
Mishra, learned senior counsel appearing for the
accused appellants.

25. The court should not find influence on mere

presence of counter case during course of appreciation of evidence

nor, the presence of counter case will affect the credibility of the

prosecution version rather, the court is under obligation to search out

from the evidence on record whether the materials available on the

record did justify the allegation whatever been alleged by the

prosecution as held by the Apex Court in Nathi Lal v. State of U.P.

reported in (1990) Supp SCC 145. However, though admitted the

defence failed to place the relevant document, and that being so,

would not be taken adverse thereto. They even failed to narrate

whether counter case is surviving or not. During course of argument it

has also been submitted that there happens to be material
Patna High Court CR. APP (SJ) No.208 of 2015 28

contradiction in the evidence of respective PWs as corroborated by the

Investigating Officer, PW-8, paras-7, 8, 9, 10. From perusal of the

same, it is evident that those contradictions are not material going to

root of the case, shaking credibility of the witnesses. Moreover, in

Yogesh Singh v. Mahabeer Singh reported in 2017 CrLJ 291, it has

been held as follows:-

29. It is well settled in law that the minor
discrepancies are not to be given undue emphasis and the
evidence is to be considered from the point of view of
trustworthiness. The test is whether the same inspires
confidence in the mind of the Court. If the evidence is
incredible and cannot be accepted by the test of prudence,
then it may create a dent in the prosecution version. If an
omission or discrepancy goes to the root of the matter and
ushers in incongruities, the defence can take advantage of
such inconsistencies. It needs no special emphasis to state
that every omission cannot take place of a material
omission and, therefore, minor contradictions,
inconsistencies or insignificant embellishments do not
affect the core of the prosecution case and should not be
taken to be a ground to reject the prosecution evidence.
The omission should create a serious doubt about the
truthfulness or creditworthiness of a witness. It is only the
serious contradictions and omissions which materially
affect the case of the prosecution but not every
contradiction or omission. (See Rammi @ Rameshwar Vs.
State of M.P., (1999) 8 SCC 649; Leela Ram (dead)
through Duli Chand Vs. State of Haryana and Another,
(1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar
Singh Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs.
State of Madhya Pradesh, (2010) 8 SCC 191; Sampath
Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC
124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7
SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas
and Anr., (2013) 12 SCC 796).

Patna High Court CR. APP (SJ) No.208 of 2015 29

26. Majority of witnesses are injured witness. How

far their status are recognizable and to what extent their evidences are

subject to reliability. In Mukesh v. State of NCT (Delhi) reported in

2017 (3) PLJR 248 (SC), it has been held

79. The injuries found on the person of PW-1 and the
fact that PW-1 was injured in the same occurrence lends
assurance to his testimony that he was present at the time
of the occurrence along with the prosecutrix. The evidence
of an injured witness is entitled to a greater weight and the
testimony of such a witness is considered to be beyond
reproach and reliable. Firm, cogent and convincing ground
is required to discard the evidence of an injured witness. It
is to be kept in mind that the evidentiary value of an
injured witness carries great weight. In Mano Dutt and
another v. State of Uttar Pradesh[(2012) 4 SCC 79], it was
held as under: “31. We may merely refer to Abdul Sayeed
v. State of M.P.[ [(2010) 10 SCC 259] where this Court
held as under:

“28. The question of the weight to be attached to the
evidence of a witness that was himself injured in the course
of the occurrence has been extensively discussed by this
Court. Where a witness to the occurrence has himself been
injured in the incident, the testimony of such a witness is
generally considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence at the
scene of the crime and is unlikely to spare his actual
assailant(s) in order to falsely implicate someone.
„Convincing evidence is required to discredit an injured
witness.‟ [Vide Ramlagan Singh v. State of Bihar[ (1973)
3 SCC 881], Malkhan Singh v. State of U.P.[ (1975) 3 SCC
311], Machhi Singh v. State of Punjab[ (1983) 3 SCC 770],
Appabhai v. State of Gujarat [1988 (Supp)SCC 241],
Bonkya v. State of Maharashtra[(1995) 6 SCC 447], Bhag
Singh v. State of Punjab[(1997) 7 SCC 712], Mohar v.
State of U.P.[ (2002) 7 SCC 606], Dinesh Kumar v. State
of Rajasthan[(2008) 8 SCC 270], Vishnu v. State of
Rajasthan[(2009) 10 SCC 477], Annareddy Sambasiva
Reddy v. State of A.P[(2009) 12 SCC 546] and Balraje v.
State of Maharashtra[(2010) 6 SCC 673].

Patna High Court CR. APP (SJ) No.208 of 2015 30

29. While deciding this issue, a similar view was
taken in Jarnail Singh v. State of Punjab[(2009) 9 SCC
719] where this Court reiterated the special evidentiary
status accorded to the testimony of an injured accused and
relying on its earlier judgments held as under:

„28. Darshan Singh (PW 4) was an injured witness.
He had been examined by the doctor. His testimony could
not be brushed aside lightly. He had given full details of
the incident as he was present at the time when the
assailants reached the tubewell. In Shivalingappa
Kallayanappa v. State of Karnataka[1994 Supp(3) SCC
235] this Court has held that the deposition of the injured
witness should be relied upon unless there are strong
grounds for rejection of his evidence on the basis of major
contradictions and discrepancies, for the reason that his
presence on the scene stands established in case it is
proved that he suffered the injury during the said incident.

29. In State of U.P. v. Kishan Chand[(2004) 7 SCC
629] a similar view has been reiterated observing that the
testimony of a stamped witness has its own relevance and
efficacy. The fact that the witness sustained injuries at the
time and place of occurrence, lends support to his
testimony that he was present during the occurrence. In
case the injured witness is subjected to lengthy cross-
examination and nothing can be elicited to discard his
testimony, it should be relied upon (vide Krishan v. State
of Haryana[(2006) 12 SCC 459]. Thus, we are of the
considered opinion that evidence of Darshan Singh (PW 4)
has rightly been relied upon by the courts below.‟

30. The law on the point can be summarised to the
effect that the testimony of the injured witness is accorded
a special status in law. This is as a consequence of the fact
that the injury to the witness is an inbuilt guarantee of his
presence at the scene of the crime and because the witness
will not want to let his actual assailant go unpunished
merely to falsely implicate a third party for the commission
of the offence. Thus, the deposition of the injured witness
should be relied upon unless there are strong grounds for
rejection of his evidence on the basis of major
contradictions and discrepancies therein.” To the similar
effect is the judgment of this Court in Balraje (supra).”
Patna High Court CR. APP (SJ) No.208 of 2015 31

27. Culpable homicide is murder by doing the act by

which death is „caused‟ with the intention of causing such bodily

injury is likely to cause death. That means to say, causing of bodily

injury and injury intended to be inflicted is sufficient in the ordinary

course of nature to cause death. All the murder is culpable homicide

but not vice versa. This is a degree of probability of death which

determines whether a culpable homicide is of the grievous medium or

lowest degree. In other words, culpable homicide is murder of act

which causes death is done with the intention of causing death or is

done with an intention of causing bodily injury and injury intended to

be inflicted is sufficient in the ordinary course of nature to cause

death.

28. In Lachman Singh v. State of Haryana as

reported in AIR 2006 SC 2763, it has been held as follows:-

9. The residuary plea relates to the
applicability of Exception 4 of Sec. 300 of the Indian
Penal Code.

10. For bringing in its operation it has to be
established that the act was committed without
premeditation, in a sudden fight in the heat of passion
upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a
cruel or unusual manner.

11. The Fourth Exception of Sec. 300 of the
Indian Penal Code covers acts done in a sudden fight.
The said exception deals with a case of prosecution
not covered by the first exception, after which its
Patna High Court CR. APP (SJ) No.208 of 2015 32

place would have been more appropriate. The
exception is founded upon the same principle, for in
both there is absence of premeditation. But, while in
the case of Exception 1 there is total deprivation of
self-control, in case of Exception 4, there is only that
heat of passion which clouds men’s sober reason and
urges them to deeds which they would not otherwise
do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct
consequence of that provocation. In fact Exception 4
deals with cases in which notwithstanding that a blow
may have been struck, or some provocation given in
the origin of the dispute or in whatever way the
quarrel may have originated, yet the subsequent
conduct of both parties puts them in respect of guilt
upon equal footing. A ‘sudden fight’ implies mutual
provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame
be placed on one side. For if it were so, the Exception
more appropriately applicable would be Exception 1.
There is no previous deliberation or determination to
fight. A fight suddenly takes place, for which both
parties are more or less to be blamed. It may be that
one of them starts it, but if the other had not
aggravated it by his own conduct it would not have
taken the serious turn it did. There is then mutual
provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each
fighter. The help of Exception 4 can be invoked if
death is caused (a) without premeditation, (b) in a
sudden fight; (c) without the offender’s having taken
undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the
person killed. To bring a case within Exception 4 all
the ingredients mentioned in it must be found. It is to
be noted that the ‘fight’ occurring in Exception 4 to
Sec. 300 of the Indian Penal Code is not defined in
the IPC. It takes two to make a fight. Heat of passion
requires that there must be no time for the passions to
cool down and in this case, the parties have worked
themselves into a fury on account of the verbal
altercation in the beginning. A fight is a combat
between two and more persons whether with or
Patna High Court CR. APP (SJ) No.208 of 2015 33

without weapons. It is no possible to enunciate any
general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a
quarrel is sudden or not must necessarily depend
upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show
that there was a sudden quarrel and there was no
premeditation. It must further be shown that the
offender has not taken undue advantage or acted in
cruel or unusual manner. The expression ‘undue
advantage’ as used in the provision means ‘unfair
advantage’.

29. In Kesar Singh v. State of Haryana reported in

(2008) 15 SCC 753, it has been held as follows:-

9. The distinction between the first part and the
second part of Section 304 of the Indian Penal Code,
therefore, must be considered having regard to the
provisions contained in Sections 299 and 300 of the Indian
Penal Code. Clause (a) of Section 299 corresponds to clause
(1) of Section 300, clause (b) of Section 299 corresponds
with clauses (2) and (3) of Section 300 and clause (c) of
Section 299 corresponds with clause (4) of Section 300 of
the Code.

This can best be understood if Sections 299 and 300
of the Code are noticed side by side :

Sections 299 Sections 300
“A person commits Subject to certain exceptions
culpable homicide, if culpable homicide is murder, if
the act by which the the act by which the death is
death is caused is done caused is done

(a) With the intention of (1) With the intention of causing
causing death; or death;or

(b) With the intention of (2) With the intention of causing
causing such bodily such bodily injury as the
injury as is likely to cause offender knows to be likely to
Patna High Court CR. APP (SJ) No.208 of 2015 34

death; or cause the death of the person to
whom the harm is caused; or.

(3) 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
(4) With the knowledge that the

(c) With the knowledge
act is so imminently dangerous
that…. the act is likely to
that it must in all probability
cause death
cause death, or such bodily
injury as is likely to cause death,
and there is no excuse for
incurring the risk.

10. The distinguishing feature is the mens rea.
What is pre-requisite in terms of clause (2) of Section 300 is
the knowledge possessed by the offender in regard to the
particular victim being in such a peculiar condition or state
of health that the intentional harm caused to him is likely to
be fatal. Intention to cause death is not an essential
ingredient of clause (2). When there is an intention of
causing a bodily injury coupled with knowledge of the
offender as regards likelihood of such injury being
sufficient to cause the death of a particular victim would be
sufficient to bring the offence within the ambit of this
clause. For determination of the said question, it would be
convenient if the exceptions contained in Section 300 are
taken into consideration as if the case falls under the said
exceptions, there would not be any question of applicability
of the main provision of Section 300 of the Indian Penal
Code.

11. The distinction between culpable homicide
amounting to murder and not amounting to murder is well
known. Culpable homicide is genus, murder is its specie.
The culpable homicide, excluding the special characteristics
Patna High Court CR. APP (SJ) No.208 of 2015 35

of murder, would amount to culpable homicide not
amounting to murder. The Code recognizes three degrees of
culpable homicide. When a culpable homicide is of the first
degree, it comes within the purview of the definition of
Section 300 and it will amount to murder. The second
degree which becomes punishable in the first part of
Section 304 is culpable homicide of the second degree.
Then there is culpable homicide of third degree which is the
least side of culpable homicide and the punishment
provided for is also the lowest among the punishments for
the three grades. It is punishable under the second part of
Section 304.

30. So far ingredients of Section 307 is concerned

that has been elaborately dealt with in Lachman Singh’s case (supra)

and for better appreciation, the same is quoted below:-

12. Section 307 of the Indian Penal Code
reads:

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

13. It is sufficient to justify a conviction u/s.
307 if there is present an intent coupled with some
overact in execution thereof. It is not essential that
bodily injury capable of causing death should have
been inflicted. Although the nature of injury actually
caused may often give considerable assistance in
coming to a finding as to the intention of the accused,
such intention may also be deduced from other
circumstances, and may even, in some cases, be
ascertained without any reference at all to actual
Patna High Court CR. APP (SJ) No.208 of 2015 36

wounds. The Sections makes a distinction between
the act of the accused and its result, if any. The Court
has to see whether the act, irrespective of its result,
was done with the intention or knowledge and under
circumstances mentioned in the Section. An attempt
in order to be criminal need not be the penultimate
act. It is sufficient in law, if there is present an intent
coupled with some overt act in execution thereof.

14. In Sarju Prasad V/s. State of Bihar, it was
observed that the mere fact that the injury actually
inflicted by the accused did not cut any vital organ of
the victim is not itself sufficient to take the act out of
the purview of Sec. 307 of the Indian Penal Code.

15. The above position was highlighted in
State of Maharashtra V/s. Balram Bama Patil and
Ors., Girija Shankar V/s. State of U.P., Vasant Vithu
Jadhav V/s. State of Maharashtra, and State of M.P.
V/s. Saleem.

31. Giving anxious consideration as well as minute

scrutiny of the evidence available on the record, it is found and held

that prosecution has succeeded in substantiating its case and that

being so, instant appeal lacks merit and is accordingly, dismissed.

32. Appellants are on bail, hence their bail bond are

cancelled directing to surrender before the learned lower court within

fortnigh to serve out the remaining part of sentence failing which the

learned lower court will take proper steps against them as provided

under law.

(Aditya Kumar Trivedi, J)
perwez

AFR/NAFR AFR
CAV DATE 07.02.2018
Patna High Court CR. APP (SJ) No.208 of 2015 37

Uploading Date 21-03-2018
Transmission 21-03-2018
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