Raju Devi vs State Of Jharkhand

Sujit Narayan Prasad, J

At the outset, it needs to refer herein that since the appellant No.2, namely, Jagdeo Yadav s/o Late Bechani Yadav has died during the pendency of the instant appeal and no application has been filed by the legal representative of the deceased, appellant No.2 to pursue the instant appeal on his behalf, hence, the instant criminal appeal, so far as it relates to the appellant No.2, namely Jagdeo Yadav, has been abated vide order dated 06.12.2024 passed by this Court. Therefore, this appeal has been taken into consideration by this Court in order to ascertain the culpability of Raju Devi, wife of Jagdeo Yadav in the alleged commission of crime.

Prayer

The instant appeal filed under Section 374(2) of the Code of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 27.04.2005 passed by the learned Sessions Judge, Chatra in Sessions Trial No.13 of 2004, whereby and whereunder, the appellant has been convicted under Sections 302/34 of the IPC and sentenced them to undergo R.I. for life along with fine of Rs.1000/-.

This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per the fardbeyan of Nageshwar Yadav (informant & father of the deceased), which reads as under:-

The prosecution case in brief on the basis of fardbeyan of Nageshwar Yadav (informant & father of the deceased) is that on 7. 05.2003 his son (Deceased Mahendra Yadav) had come home from Calcutta at 12 p.m. along with the mother Tetari Devi, sister Ram Dulari Devi, 8 years old daughter Pinki and 8 years old  niece  Monti two  days  prior  to  the  incident,  i.e.,  on 05.05.2003 at 11a.m. The informant's brother Jagdeo Yadav had forcibly taken away two wooden cots from his house but he kept mum and on arrival of the son, wife and others on 07.05.2003 and having difficulty in sleeping, the deceased son Mahendra Yadav went to the house of the accused Jagdeo Yadav(since dead) at 6.30 p.m. and demanded the wooden cots. Upon this, Jagdeo Yadav and his wife Raju Devi came out of the house with anger and Jagdeo Yadav having Tangi in hand started assaulting on the son, but the first blow did not hit and the son raised alarm on which all the family members rushed there and witnessed that the female accused Raju Devi had caught hold of the son and Jagdeo Yadav inflicted another Tangi blow on right leg of the son causing profused bleeding and thereupon, he fell down. Thereafter, Jagdeo Yadav threw the Tangi and confined himself inside the house alongwith the wife and children. The informant rushed to call upon the doctor but after reaching the road, the villagers came and informed that the son died and thereafter, he found the son lying dead.

On the basis of the fardbeyan of the informant Nageshwar Yadav, Police registered Bashisthanagar P.S. Case No.24 of 2003 for the offence under sections 302/34 of the IPC.

Police, after completion of investigation, submitted charge-sheet against the accused persons.

Accordingly, cognizance was taken and the case was committed to the Court of Session for trial and disposal.

In order to prove its case, prosecution altogether examined 11 witnesses, i.e., Shanti Kumari (P.W.1), Ram Dulari (P.W.2), Dhauli Devi (P.W.3), Tetari Devi (P.W.4), Ram Bhajan Yadav (P.W.5), Rajendra Yadav (P.W.6), Sabitri Devi (P.W.7), Nageshwar Yadav-the informant and father of deceased (P.W.8), Jaigobind Prasad Gupta-the Investigating Officer (P.W.9), Dr. Praveen Kumar Tiwary-the Doctor (P.W.10) and Md. Kabir-Choukidar (P.W.11).

The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, accused persons had denied the prosecution evidence and claimed to be innocent.

The learned trial court, after perusal of record, found the charge levelled against the accused proved. Accordingly, the accused have been found guilty, as such, convicted under section 302/34 and sentenced vide impugned judgment of conviction and order of sentence dated 27.04.2005, which is the subject matter of instant appeal.

Arguments of the learned counsel for the appellants

Mr. Binod Kumar Dubey, learned counsel for the appellants has taken the following grounds by assailing the impugned judgment of conviction and order of sentence: -

(i) The learned trial Court has not taken into consideration the fact that the prosecution witnesses are not reliable and trust-worthy witnesses.

(ii) The learned trial Court has also not taken note of the fact that the independent witnesses were not examined.

(iii) It is not the case of Section 302 of the IPC, rather, at best, it is the case of Section 304 part II of the IPC as because the oral evidence adduced in this case has not established that the accused was carrying any intention to kill someone.

(iv) There is contradiction regarding the place of occurrence and the manner of assault by taking into consideration the testimony of witnesses, hence, the testimony of the witnesses also cannot be said to be reliable.

(v) The Investigating Officer did not prepare any sketch of place of occurrence and no blood stained earth was seized, therefore, the benefit of doubt will be given in favour of the accused persons.

Learned counsel for the appellants, on the aforesaid grounds, has submitted that the impugned judgment of conviction/sentence suffers from patent illegality and hence, it is not sustainable in the eye of law.

Arguments of the learned counsel for the respondent-State

Per Contra, Mr. Tarun Kumar, learned Addl. Public Prosecutor appearing for the respondent-State has taken the following grounds by defending the impugned judgment of conviction:-

(i) It is incorrect on the part of the appellants that the testimony of the witnesses cannot be said to be reliable.

(ii) The date, time and place of occurrence are well corroborated by all the prosecution witnesses leaving no room of doubt during their cross-examination.

(iii) The manner of occurrence deposed by all the eye witnesses consistently has fully been corroborated by the doctor.

(iv) It is also incorrect to say that the benefit of doubt will be given in favour of the accused persons.

Analysis

We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses along with other exhibits particularly the postmortem report as available in the lower court records.

This Court, before examining the propriety of the impugned judgment based upon the submission made on behalf of the learned counsel for the parties, is of the view that the testimony of prosecution witnesses needs to be referred herein:

Testimony of the witnesses

P.W.1, namely, Shanti Kumari (daughter of accused) has been declared hostile by prosecution. She had deposed in her examination-in-chief that Mahendra Yadav has been murdered who is the son of her elder uncle and the murder took place about 4 to 5 months ago and that time she was at the home. She was declared hostile and her attention was drawn to the Police statement in which, she has deposed that the deceased had come to her house to demand chouki and was assaulted with tangi by the father and he died.

At paragrah-4, during her cross-examination had admitted that the deceased sustained cut injury on the leg and due to profuse bleeding, he died.

P.W.2, Ram Dulari is the sister of the deceased and claimed herself as an eyewitness of the occurrence. She had stated that on 07.05.2003 at about 6.00 p.m., Mahendra Yadav (the deceased) went to the house of the accused Jagdeo Yadav to bring the wooden cots. Upon this, Jagdeo Yadav and his wife Raju Devi came out of the house and Raju Devi caught Mahendra Yadav (the deceased) and Jagdeo Yadav having Tangi in hand had assaulted on right leg of the Mahendra Yadav (the deceased) due to which Mahendra Yadav died on spot.

P.W.3, Dhauli Devi is aunt of the deceased and she also proclaimed herself as an eyewitness of the case. She had testified on the same line as P.W.2. She had stated that deceased had gone to home of the Jagdeo Yadav and demanded wooden cot and quarrel was happened among them, thereafter, Raju Devi caught Mahendra Yadav (the deceased) and Jagdeo Yadav had assaulted on right leg of the Mahendra Yadav (the deceased) by tangi (axe) due to which Mahendra Yadav died on spot.

P.W.4, Tetari Devi is mother of the deceased and eyewitness of the case. She had stated on the same line as stated by the P.W.2 and P.W.3. In her cross-examination she had stated that at the place of occurrence, she was present at the door of her house. She had further stated that on Saturday Jagdeo Yadav(accused/appellant) and his wife Raju Devi had forcibly taken the wooden cot of the informant and her daughter-in-law had informed her about the same.

P.W.5, Ram Bhajan Yadav is the hearsay witness. has deposed that it was Jagdeo Yadav who inflicted cut injury on leg of the deceased due to which deceased died. He had put his signature on fardbayan of the informant and the same has been marked as Exhibit-1.

P.W.6, namely, Rajendra yadav is the seizure list witness, who has deposed on preparation of seizure-list of iron tangi in his presence containing his signature which has been marked as Exhibit 2/1.

P.W.7, Sabitri Devi is the wife of the deceased and eyewitness of the case. She had deposed on the same line as deposed by the P.W.2. She had stated that at about 6.00 p.m., her husband (the deceased) went to the house of the accused Jagdeo Yadav to bring the wooden cots. Upon this, Raju Devi caught her husband (the deceased) and Jagdeo Yadav had assaulted on right leg of his husband (the deceased) due to which his husband died on spot.

In cross-examination she had stated that the accused had taken the said wooden cot forcibly without her consent.

P.W.8 is the informant and father of the deceased. He is also an eyewitness of the instant case. He had stated on same line as he had stated earlier in his fardbayan. He had testified that on 07.05.2003 at about 6.00- 6.30 p.m his son (Deceased Mahendra Yadav) had went to the house of the accused Jagdeo Yadav and demanded the wooden cots. Upon this, Jagdeo Yadav had assaulted by axe on his son, but the first blow did not hit him and thereafter, Jagdeo Yadav inflicted another right Tangi blow on right leg of the son causing profuse bleeding. He had proved his signature and signature of Ram Bhajan Yadav which had been marked as Ext.1 and 1/1. He further deposed on seizure of the Tangi and his signature on the seizure list had been marked as Ext.2/1.

P.W.9 Jaigobind Prasad Gupta was the investigating officer of the instant case and had deposed that at the place of occurrence he found blood lying on the ground. He had recovered blood-stained Tangi from the place near a bush. In para-6 of the examination-in-chief he had stated that he recorded the statement of the witnesses. Further, he proved the formal FIR prepared by him as Ext. 3 and preparation of fardbayan by him followed by his endorsement thereon which had been marked as Ext-3/1. Entire seizure list prepared by him had been marked as Ext-4 which relates to seizure of Tangi. He had testified that Tangi had not been sent for forensic examination.

P.W.10-Dr. Praveen Kumar Tiwary is the doctor who had conducted postmortem examination of the deceased on the very next day of the occurrence i.e., on 08.05.2003 and found the following ante mortem injuries: -

(I) Rigor mortis present all the upper and lower limbs including neck.

(II) Incised wound 5" X 2" X 3" over pauplatia fossa of right knee resulting in complete cut of pauplatial artery and vein.

He further deposed in his opinion that the cause of death was cardiac respiratory arrest due to hemorrhage and shock caused by cut of pauplatial artery and vein and by sharp heavy weapon and it may be Tangi. Time elapsed since death was between 12 to 24 hours. The postmortem report is proved and marked as Ext.5.

During cross-examination it has come that wound No.2 was tied with some Gamchha (towel) and the Gamchha might had been taken away by the relative present. There was blood clotting on the wound but he did not mention.

In paragraph-8, it has come that the depth of wound is sufficient to cut the artery and vein and the abdomen was normal.

On court question, this witness replied that rigor mortis starts after 2 to 3 hours of death and spreads all over body by 12 hours and well maintained till further 24 hours and then starts disappearance.

P.W.11, namely, Md. Kabir (Choukidar 7/3) who had brought one tangi from Bashisthanagar Police Station wrapped in a paper and tagged with a rope. He has identified the material exhibit as Exhibit-I and a letter sent through him by the Bashisthanagar Police as Exhibit 6.

Reference of the Law Point

This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis-à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II of the Indian Penal Code.

In the case of Nankaunoo v. State of Uttar Pradesh reported in [(2016) 3 SCC 317] it has been held that the intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder, for ready reference paragraph 11 is being quoted and referred hereunder as :-

“11. Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering clause Thirdly of Section 300 IPC and reiterating the principles stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] ,para 12, this Court held as under: (SCC p. 41) “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7) ‘

… These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.’ The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas under the second part whether it was sufficient to cause death, is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The ‘intention’ and ‘knowledge’ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words ‘intention’ and ‘knowledge’ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to ‘knowledge’, ‘intention’ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.”

In the case of State of Andhra Pradesh v. Rayavarapu Punnayya, (1976) 4 SCC 382, the Hon’ble Apex Court, while clarifying the distinction between section 299 and 300 of the Indian Penal Code and their consequences, held as under: —

“12. In the scheme of the Penal Code, “culpable homicide” is genus and “murder” is species. All “murder” is “culpable homicide’ but not vice-versa. Speaking generally, “culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is what may be called ‘culpable homicide of the first degree’. This is the greatest form of culpable homicide, which is defined in Section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’. This is punishable under the first part of Section 304. Then, there is ‘culpable homicide of the third degree’. This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304”

Recently the Hon’ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under:

“66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:—

(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. ---

(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.

(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is “guilty intention”, whereas the second part would apply when there is no such intention, but there is “guilty knowledge”.

(4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.

(5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression “sufficient in the ordinary course of nature to cause death” but is of a lower degree of likelihood which is generally spoken of as an injury “likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.

(6) The word “likely” means probably and it is distinguished from more “possibly”. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.

(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.

(8) The court must address itself to the question of mensrea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries.

(10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case.

(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC.”

In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues: -

(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or

(ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? or

(iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? Or

(iv) Whether the appellant is entitled for acquittal in absence of cogent evidences?

Since, all the aforesaid issues are inextricably interlinked, therefore, the same are being discussed and decided hereinbelow together.

As we discussed, Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death, ―intent and ―knowledge as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mensrea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person.

If the offence which is covered by one the clauses enumerated above, would be liable to be convicted under Section 304 IPC. If the offence is such that which is covered by clause (a) or (b) mentioned above i.e. Section 299 IPC, the offender would be liable to be convicted under part I IPC as it uses the expression that death is caused with the intention of causing death or of causing such bodily injury as is likely to cause death, where intention is dominant factor. However, if the offence is such which is covered by clause (c) mentioned above, the offender would be liable to be convicted under Section 304-part II IPC because of the use of the expression ―if the act is done with the knowledge that is likely to cause death but without any intention to cause death or to cause bodily injury as is likely to cause death where knowledge is a dominant factor.

The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jairaj v. State of Tamil Nadu reported in AIR 1976 SC 1519 has been pleased to held at paragraph 32 & 33 which is being quoted hereunder as :-

“32. For this purpose we have to go to Section 299 which defines “culpable homicide”. This offence consists in the doing of an act (a) with the intention of causing death, or (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that the act is likely to cause death.

As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] “intent” and “knowledge” in the ingredients of Section 299 postulate the existence of positive mental attitude and this mental condition is the special mensrea necessary for the offence. The guilty intention in the first two conditions contemplates the intended death of the person harmed or the intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates knowledge of the likelihood of the death of the person.”

Thus, while defining the offence of culpable homicide and murder, the framers of the Indian Penal Code laid down that the requisite intention or knowledge must be imputed to the accused when he committed the act which caused the death in order to hold him guilty for the offence of culpable homicide or murder as the case may be.

The framers of the Indian Penal Code designedly used the two words intention and knowledge, and it must be taken into consideration that the framers intended to draw a distinction between these two expressions. The knowledge of the consequences which may result in the doing of an act is not the same thing as the intention that such consequences should ensue. Except in cases where mens rea is not required in order to prove that a person had certain knowledge, he ―must have been aware that certain specified harmful consequences would or could follow.

In view of Section 299 of the Indian Penal Code, the material relied upon by the prosecution for framing of charge under Section 304 Part-II must be at least prima facie indicate that the accused has done an act which has caused death with at least such a knowledge that such act was likely to cause death.

The Hon'ble Apex Court, in Keshub Mahindra vs. State of M.P. reported in (1996) 6 SCC 129 has pleased to hold as under paragraph 20 which reads hereunder as :-

“20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section.304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.

Consequently, the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death.

Section 300 of Indian Penal Code speaks about murder under which it has been stipulated that Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or, secondly, if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or thirdly, if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

It is, thus, evident that the punishment under Section 302 of the Indian Penal Code shall not apply if any of the conditions mentioned above, are not fulfilled. This means that if the accused has not intentionally killed someone then murder cannot be proved. Apart from this, Section 300 of the Indian Penal Code mentions certain exceptions for offence of murder, which are as follows:-

(a) If a person is suddenly provoked by a third party and loses his self-control, and as a result of which causes the death of another person or the person who provoked him, it won‘t amount to murder subject to proviso as provided.

(b) When a person under the right of private defence causes the death of the person against whom he has exercised this right without any premeditation and intention.

(c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person

(d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender‘ having taken undue advantage or acted in a cruel or unusual manner.

(e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

All these exceptions mentioned above shall come under the purview of Section 304 IPC and will be termed as culpable homicide not amounting to murder.

It is, thus, evident that the parameters which are to be followed while convicting a person of commission of crime of murder will be different if the murder comes under fold of culpable homicide amounting to murder and it will be different if with the intent to commit murder as per the outside purview of exception carved out under Section 300 of the Indian Penal Code.

In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether the culpability in the instant case is under Section 302 or Section 304 Part-I or II of the Indian Penal Code by appreciating the evidences.

In order to reach out the just decision of the case we are again adverting to the testimony of prosecution evidence. It is evident from the record that P.W.8 is the informant and father of the deceased. He is also eyewitness of the instant case. He had fully substantiated his fardbayan in examination-in-chief. He had testified that on 07.05.2003 at about 6.00- 6.30 p.m his son (Deceased Mahendra Yadav) had went to the house of the accused Jagdeo Yadav(since dead) and demanded the wooden cots. Upon this, Jagdeo Yadav had assaulted by axe on his son, but the first blow did not hit him and thereafter, Jagdeo Yadav inflicted another right Tangi blow on right leg of the son causing profuse bleeding.

Further, from the record it is evident that P.W.2, Ram Dulari is the sister of the deceased and claimed herself as an eyewitness of the occurrence. She had stated that on 07.05.2003 at about 6.00 p.m., Mahendra Yadav (the deceased) went to the house of the accused Jagdeo Yadav to bring the wooden cots. Upon this, Jagdeo Yadav and his wife Raju Devi came out of the house and Raju Devi caught Mahendra Yadav (the deceased) and Jagdeo Yadav having Tangi in hand had assaulted on right leg of the Mahendra Yadav (the deceased) due to which Mahendra Yadav died on spot.

It has come on record that P.W.3 Dhauli Devi is aunt of the deceased and she is an eyewitness of the case. She had testified on the same line as P.W.2. She had stated that deceased had gone to home of the Jagdeo Yadav and demanded wooden cot and quarrel was happened among them, thereafter, Raju Devi caught Mahendra Yadav (the deceased) and Jagdeo Yadav had assaulted on right leg of the Mahendra Yadav (the deceased) by tangi (axe) due to which Mahendra Yadav died on spot.

Further, P.W.4, Tetari Devi is mother of the deceased and eyewitness of the case. She had stated on the same line as stated by the P.W.2 and P.W.3. In her cross-examination she had stated that at the of occurrence she was present at the door of her house. She had further stated that on Saturday Jagdeo Yadav(accused/appellant) and his wife Raju Devi had forcibly taken the wooden cot of the informant and her daughter-in-law had informed her about the same.

P.W.7 Sabitri Devi is the wife of the deceased and also eyewitness of the case. She had stated that at about 6.00 p.m., her husband (the deceased) went to the house of the accused Jagdeo Yadav to bring the wooden cots. Upon this, Raju Devi caught her husband (the deceased) and Jagdeo Yadav had assaulted on right leg of his husband (the deceased) due to which his husband died on spot.

In cross-examination, she had stated that the accused had taken the said wooden cot forcibly without her consent.

Thus, from the perusal of the testimony of the prosecution witnesses it is apparent that it is the case of homicidal death and the alleged occurrence was witnessed by the eyewitnesses like P.W.2, P.W.3, P.W.4, P.W.7 and P.W.8. it is further evident from record that the fardbayan has been fully substantiated by the deposition of aforesaid eyewitness and there is no any major contradiction inter-se in their testimonies and all these eyewitness had stated almost on the similar line.

Further the testimonies of the eyewitnesses have fully been substantiated by the deposition of P.W.10-Dr. Praveen Kumar Tiwary, the doctor who had conducted postmortem examination on the dead body of the deceased and found incised wound 5" X 2" X 3" over pauplatia fossa of right knee resulting in complete cut of pauplatial artery and vein.

He had further deposed in his opinion that the cause of death was cardiac respiratory arrest due to hemorrhage and shock caused by cut of pauplatial artery and vein and by sharp heavy weapon and it may be Tangi.

Thus from aforesaid discussion it is evident that the statement of the eyewitnesses that accused had inflicted injury on the right leg of the deceased below the knee has fully been fortified by the finding of the doctor who had opined that he found incised wound 5" X 2" X 3" over pauplatia fossa of right knee resulting in complete cut of pauplatial artery and vein.

Even the P.W.1, namely, Shanti Kumari (daughter of accused persons) who had been declared hostile by prosecution but at paragrah-4, during her cross-examination she had admitted that the deceased sustained cut injury on the leg and due to profuse bleeding, he died. Further, P.W.9 Jaigobind Prasad Gupta the investigating officer of the instant case had deposed that at the place of occurrence he found blood lying on the ground and he had recovered blood-stained Tangi from the place near a bush.

Thus, from appreciation of the evidences, it is evident that the genesis of occurrence has been fully corroborated over wooden cot affair and the manner of occurrence, place, date and time of occurrence could not be cross-examined to this degree that any of these eyewitnesses could be disbelieved. Further, the eye witnesses have remained absolute corroborative to each other and have well proved the time, manner, place and genesis of occurrence at the hands of these accused/appellant persons as per the case in the fardbeyan and they are free from any bias and animosity.

Merely because these witnesses happen to be the parent, brother of the deceased, their testimony cannot be thrown away rather some of the witnesses namely P.W.3 Dhauli Devi is the own inmate of the deceased and above the all the prosecution witnesses as well as the accused persons are undisputedly resident of one and the same house with only difference of their separate exit.

In the aforesaid context it would be relevant to mention that the Hon’ble Apex Court in the catena of decision has observed that where a testimony is duly explained and inspires confidence, the Court is not expected to reject the testimony of an interested or related witness. The Hon'ble Apex Court in Dalip Singh and Ors vs. State of Punjab AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that the relatives were not the independent witness. Relevant paragraph-26 reads as under:-

"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

Again, in Masalti and Ors Vs. State of Uttar Pradesh, AIR 1965 SC 202, the Hon'ble Apex Court has observed that there is no doubt that when a criminal court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not evidence strikes the court as genuine whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account. But it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal courts have to deal with such evidence of a partisan type with great care. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautions in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan, cannot be accepted as correct.

Further, the law is well settled in this regard that what would be the effect if the conviction is solely based upon the testimony of interested witness, as has been held by Hon'ble Apex Court in the case of Mallanna and Ors. vs. State of Karnataka, (2007) 8 SCC 523 wherein it has laid down that the evidence of interested witnesses cannot be thrown out and the only requirement for the Court is to consider their evidence with great care and caution and if such evidence does not satisfy the test of credibility, then the Court can disbelieve the same. Relevant paragraph of the aforesaid judgment reads as under:

"22. Another ground of attack to the evidence of PW 1, PW 2 and PW 3 is that no reliance should be placed upon these witnesses as PW 1 and PW 2 are close relations of the deceased and PW 3 is his bodyguard inasmuch as, undisputedly, there was animosity between the deceased and the accused persons, especially when these witnesses cannot be said to be stamp witnesses as none of them has received any injury. In our view, merely because witnesses are related or interested or not injured, their evidence cannot be discarded if the same is otherwise found to be credible, especially when they have supported the prosecution case in material particulars. All the three eyewitnesses, PW 1, PW 2 and PW 3 are natural witnesses. PW 3 was undisputedly bodyguard of the deceased and PW 1 and PW 3 came with the deceased to the house of PW 2 which was in Gulbarga the previous night for appearance of the deceased in sessions trial, pending against him, in the morning court at Gulbarga and in the morning all of them went to the court where the present occurrence had taken place in the broad daylight. So far as PW 2 is concerned, further submission has been made that his evidence should be discarded also on the ground that he made the statement before the doctor (PW 6) to the effect that A-4 was also the assailant, as would appear from Exhibit P-10, an entry made in the register duly maintained in the hospital, which shows that he had not seen the occurrence."

Similarly, in Kulesh Mondal vs. State of W.B., (2007) 8 SCC 578, the Hon'ble Apex Court has laid down at paragraph- 10 which reads as under:

"10. We may also observe that the ground that the [witnesses being close relatives and consequently being partisan witnesses,] should not be relied upon, has no substance. This theory was repelled by this Court as early as in dalip singh v. state of punjab [AIR 1953 SC 364 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses.”

Thus, it is evident from the aforesaid settled proposition of law that criminal court has to appreciate the evidences given by witnesses who are partisan or interested and it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.

Admittedly in the instant case, the alleged murder weapon which has been recovered by the investigating officer has not been send for forensic examination but the non-sending of weapon of offence does not come in way to disbelieve the testimony of the Investigating Officer of the case reason being that there is concrete and cogent evidence is available on record in the form of the eyewitnesses who had fully substantiated the involvement of the accused/appellant in the said commission of the crime.

Thus, on the basis of the aforesaid discussion it has been established that the appellant/accused namely Raju Devi is responsible for the said offence since she actively participated in getting the occurrence committed at the hands of her husband(since dead) by catching hold the deceased so that he may not escape.

We gathered from the medical evidence as discussed hereinabove that one incised wound injury had been found by the doctor on the right leg of the deceased which was caused to the deceased by an axe. As discussed herein above the prosecution witnesses had deposed that the Jagdeo Yadav had assaulted to the deceased by a single blow of an axe and further the said injury was inflicted on the comparatively non-vital part of body of deceased like right leg below the knee therefore, had the accused has requisite intention to cause the death of the deceased, nothing could have prevented him from using the deadly weapons like axe on the vital part of the body like head or stomach or neck. Further, it has come on the record that the Jagdeo Yadav had not made repeated blow of the axe on the right leg of the deceased rather after causing the said injury he fled away and hiding himself inside the house.

At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence.

In the backdrop of aforesaid discussion and the judicial pronouncement and the testimonies of prosecution witnesses as also taking into consideration the facts and circumstances of the instant case, we are of the view that the appellant Raju Devi and accused Jagdeo Yadav (since dead) did not intend to cause the death of the deceased. The facts proved by the prosecution and the established circumstances on the record go to show that the alleged act of commission of crime does not fall within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC. However, in causing the injuries as have been noticed in the post-mortem report and deposed to by PW 10 (doctor), the appellant Raju Devi must have attributed the knowledge that the said act, may likely to cause the death of the deceased, though without any intention to cause his death or to cause such bodily injury as is likely to cause his death. The offence, in such a case, would, therefore, be only culpable homicide not amounting to murder as per the third clause of Section 299 IPC, punishable under Sections 304 Part II/34 IPC.

Resultantly, we find that the learned trial court while convicting the appellant Raju Devi for commission of offence under Section 302 of the Indian Penal Code, has committed error by ignoring all these facts as recorded in the preceding paragraphs.

Accordingly, we are of the view that the judgment impugned convicting the appellant Raju Devi under Section 302 I.P.C. read with Section 34 IPC needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-II read with Section 34 of the IPC.

Consequently, the judgment passed by the learned trial court is modified and appellant Raju Devi, is hereby held guilty under Section 304 Part II/34 of the Indian Penal Code.

On the question of sentence, we have been informed that the appellant namely, Raju Devi, has already suffered incarceration for over 2 years and presently she is on bail after suspension of sentence.

In the aforesaid circumstances, we are inclined to modify the sentence of imprisonment to the period already undergone. The appellant is hereby discharged from the liabilities of bail bonds.

In view of the discussions made hereinabove, judgment of conviction and order of sentence dated 27.04.2005 passed by the learned Sessions Judge, Chatra in Sessions Case No.13 of 2004, is modified to the aforesaid extent.

Accordingly, the instant appeal stands dismissed with the aforesaid modification in the judgment of conviction and order of sentence.

Let this order/judgment be communicated forthwith to the Court concerned along with the Trial Court Records.