Rajendra Yadav Alias Rajendra Pras Vs State of Bihar

2026:JHHC:14741-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI Criminal Appeal (D.B.) No. 4 of 1998(P)

[Against the Judgment of conviction dated 19.12.1997 and order of sentence dated 22.12.1997 passed by learned 1st Additional District and Sessions Judge, Godda, in Sessions Trial No.216 of 1996 / 146 of 1996]

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Rajendra Yadav alias Rajendra Prasad Yadav, son of Tetru Yadav

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Faneshwar alias Fantush Yadav son of Kalru Yadav All resident of Village-Mal Pakaria, P.S. Godda(T),

District-Godda.

… … Appellants

Versus

The State of Bihar (now Jharkhand) … … Respondent With Criminal Appeal (D.B.) No. 64 of 1998(P)

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Babu Lal Yadav, son of Mahendra Yadav

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Mitti Yadav, son of Tetru Yadav

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All resident of village-Mal Pakaria P.S. Godda (T) District-Godda. … … Appellants

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Versus

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The State of Bihar (now Jharkhand) … … Respondent

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P R E S E N T

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HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD

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For the Appellants : Mr. Ashish Verma, Advocate For the State : Mr. Pankaj Kumar, P.P.

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C.A.V. on 18.04.2026 Pronounced on 12/05/2026

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Per Sujit Narayan Prasad, J.

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1. The instant appeal is directed against the Judgment of conviction dated 19.12.1997 and order of sentence dated 22.12.1997 passed by learned 1^st Additional District and Sessions Judge, Godda, in Sessions Trial No.216 of 1996 / 146 of 1996 by which the appellants have been convicted under section 302/34 of the Indian Penal Code (IPC) and have

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been directed to undergo imprisonment for life.

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2. Before proceeding further, it is pertinent to mention that appellant Deoghari Raut in Criminal Appeal (D.B.) No. 4 of 1998(P) died during the pendency of the instant appeal and, as such, the appeal qua Deoghari Raut was abated by order dated 21.03.2025, passed by the Co-Ordinate Bench of this Court.

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3. Further, on perusal of counter affidavit dated 28.02.2025, filed by the respondent, wherein it has been stated that appellant Tetru Yadav in Criminal Appeal (D.B.) No. 64 of 1998(P) has died during the pendency of his appeal. Hence, the appeal qua Tetru Yadav, stands abated.

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Factual Matrix

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4. The prosecution case was instituted on the fardbayan of the informant Ram Krishna Yadav (P.W.-10) son of Nar Singh Yadav of village Mal Pakariya, P.S Godda(T), DistrictGodda recorded on 11.06.1996 at about 11.15 hrs., at Sadar Hospital, Godda.

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5. The prosecution case, in brief, as per the ferdbeyan of the informant Ram Krishna Yadav (P.W.-10 ) is that on 11.06.1996 at about 5.30 AM, in the morning, informant’s cousin brother (chachera bhai) Ram Prasad Manjhi (deceased) resident of village Ghat Pakariya, P.S Godda(T), had gone for ploughing his field, situated at north of the village Ghat

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Pakariya near Hathha Bandh and at that time informant had also gone to towards Hathha Bandh , to see his farm.

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6. Informant further stated that in the meantime, accused persons Rajendra Yadav, Devo Yadav, Mitti Yadav, Fanishwar Yadav, Babulal Yadav, Mahendra Yadav, Tetru Yadav, Hardev Yadav, Deoghari Raut armed with lathi, bhala etc. came to the place where his cousin brother Ram Prasad Manjhi was ploughing the field and restrained him from ploughing the field.

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7. Informant has further stated that accused Rajendra Yadav and Devo Yadav opened the plough and oxen and said that the land belonged to them and they will not allow him to plough the field to which his cousin brother Ram Prasad Manjhi protested.

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8. Then, accused Deoghari Raut exhorted to assault, then, Babulal Yadav and Mitti Yadav, caught hold Ram Prasad Manjhi and Hardev Yadav, Mahendra Yadav and Tetru Yadav assaulted Ram Prasad Manjhi, with lathi as a result both of his legs were broken and he sustained injuries on his back, left temporal and thereafter, Ram Prasad Manjhi fell down and became unconscious.

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9. Informant raised halla and on his halla , villager Bharda Yadav (P.W.-7), Suren Yadav (P.W.-8), Sharif Yadav (P.W.-9) and others came running there and saw the attack.

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10. Informant further stated that he along with Jai Kishore Yadav (P.W.-4) and Vishnu Yadav (P.W.-2), carried his injured cousin brother Ram Prasad Manjhi, on a handcart to the Sadar Hospital, Godda for treatment, where his cousin brother Ram Prasad Manjhi, died during the treatment.

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11. On the basis of fardbeyan of the informant, Godda (T) P.S. Case No.129 of 1996 dated 11.06.1996 was registered against the accused persons/appellants under Section 302/34 of the IPC. After completion of investigation, the police submitted charge sheet No.50 of 1996 against the accused persons/appellants under section 302/34 of the IPC.

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12. After cognizance of the offence, the case was committed to the Court of Sessions. Charges under Sections 302 of IPC was framed against the accused persons/appellants Tetru Yadav, Hardev Yadav and Mahendra Yadav and under section 302/34 I.P.C. against the remaining accused persons/appellants, to which accused persons pleaded not guilty and claimed to be tried.

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13. The trial Court, after recording the evidence of witnesses, examination-in-chief and cross-examination, recorded the statement of the accused person, has found the charges levelled against the accused persons proved beyond all reasonable doubts.

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14. Accordingly, the accused persons were held guilty and convicted for the offence punishable under Section 302 and

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302/34 of the Indian Penal Code.

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15. The aforesaid order of conviction and sentence is subject matter of instant appeal.

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Submission of the learned counsel for the appellants:

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16. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and order of sentence passed by the Trial Court cannot be sustained in the eyes of law.

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17. The following grounds have been taken by the learned counsel for the appellants in assailing the impugned judgment of conviction: -

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i. The prosecution has miserably failed to establish the charge said to be proved, beyond all reasonable doubt, said to be committed by the present appellants under section 302/34 of the IPC.

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ii. It has been contended that the evidence of the witnesses is highly contradictory, hence, finding of conviction arrived at by the learned Trial Court cannot be sustained in law.

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iii. It has been contended that the alleged eye witnesses P.W-2, P.W-3 and P.W-10 are the son, wife and cousin brother respectively of the deceased and are highly interested witnesses.

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iv. It has been contended that no specific overt act is

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attributed against any of the surviving appellants.

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v. It has been contended that prosecution witnesses P.W.-6, P.W.-7, P.W.-8 and P.W.-9 have not stated any specific allegation regarding the assault on the deceased.

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vi. It has been contended that accused persons/appellants were not armed with any deadly weapons rather they were carrying lathi.

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vii. It has been contended that prior to the incident of alleged assault altercation between the deceased and accused persons/appellants took place over the issue of ploughing of land and the appellants herein were only member of mob and they were not armed with any deadly weapon and there was no any intention on the part of these appellants to kill the deceased.

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viii. The learned counsel appearing for the appellants based upon the aforesaid grounds has submitted that the impugned conviction under section 302/34 IPC is not established against the present appellants and hence, the impugned judgment is fit to be quashed and set aside.

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ix. The learned counsel has further submitted that even otherwise also there was no premeditation to commit murder rather on spur of moment the

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incident took place on the issue of ploughing the field.

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x. The learned counsel, in the alternative, has argued that even accepting the prosecution version to be correct, then also it is not a case said to be made out against these appellants under section 302/34 IPC, rather at best the case under section 304 Part-II will be made out.

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18. Learned counsel for the appellants, in the backdrop of aforesaid grounds, has submitted that the judgment of conviction and order of sentence since is not based upon cogent evidence and as such it cannot be said that the prosecution has been able to prove the charge beyond all reasonable doubt.

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Submission of the learned counsel for the State:

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19. Per contra, Mr. Pankaj Kumar, learned Public Prosecutor, appearing for the State, has submitted by taking the following grounds in defending the impugned judgment:

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(i) The conviction of the present appellants under section 302/34 of the Indian Penal Code does not suffer from an error, since, ample evidence has been produced by the prosecution.

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(ii) The Informant himself had seen that the accused persons had brutally assaulted the deceased with lathi due to which deceased died during treatment

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and, as such, the impugned judgment does not require any interference.

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(iii) P.W-2, P.W-3 and P.W-10 are the eye witnesses of the present case and had seen the assault on the deceased.

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(iv) The argument has also been advanced that the doctor P.W.-11 had found lacerated wound on the leg and multiple bruises over the body of the deceased and, hence, doctor has supported the prosecution version of inflicting assault by these appellants.

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20. Learned counsel for the State respondent, on the basis of the aforesaid grounds, has submitted that the impugned judgment suffers from no infirmity and needs no interference.

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Analysis

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21. We have heard learned counsel for the parties, perused the documents available on record as also the finding recorded by the trial court in the impugned judgment.

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22. We have also gone through the testimonies of the witnesses as available in the trial court records as also the exhibits.

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23. This Court before considering the argument advanced on behalf of the parties is now proceeding to consider the deposition of witnesses, as per the testimony as recorded by learned Trial Court.

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24. In this case the prosecution has examined altogether 12 witnesses out of whom P.W.-10 Ram Krishna Yadav, is the informant of the case, P.W.-1 Shaligram Manjhi, P.W.-2 Vishnu Kumar Yadav, P.W.-3 Nirmala Devi, P.W.-4 Jay Kishore Prasad Yadav, P.W.-5 Makeshwar Ishwar, P.W.-6 Roshan Ishwar, P.M.-7 Bharda Yadav, P.W.-8 Suren Yadav, P.W.-9 Sharif Prasad Yadav, P.W.-11 Dr. Mantu Kumar Tekriwal, who had performed postmortem examination and P.W.-12 Shobhalal Patewa, who is the Investigating Officer of the case.

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25. The extracts of depositions of the prosecution witnesses are being referred herein.

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P.W.-1 Shaligram Manjhi , is hearsay witness and P.W.-

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8 Suren Yadav and P.W.-9 Sharif Prasad Yadav are tendered witnesses.

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P.W.-2 Vishnu Kumar Yadav , is the son of the deceased. He has stated in his evidence that on the day of occurrence at 6.30 a.m., in the morning, he was at Hatha Dam and his father (deceased) was ploughing the field to sow paddy seeds and he had gone there. In the meantime, accused persons Rajendra Yadav, Devo Yadav, Mitti Yadav, Hardev Yadav, Tetru Yadav, Mahendra Yadav, Babulal Yadav, Fhaneshwar alias Fantu Yadav and Deoghari Raut arrived there. Deghri Raut and Devo were armed with spears and the remaining accused persons had sticks. Deoghari Raut said, "If

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don't agree, kill". Devo Yadav and Rajendra Yadav said, "Open the plough." When they didn't, open the plough they opened it. Deoghari Raut threatened to kill them.

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P.W.-2 has further stated that when his father tried to run, Babulal Yadav and Mitti tried to catch his father and after some distance, they caught them. Hardev Yadav hit his father in the cage with his stick, Mahendra Yadav hit on the temple with a stick and Tetru Yadav hit him in the buttocks.

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P.W.-2 has further stated that his father fell down and after falling, Rajendra Yadav hit his father on his left leg, Mitti Yadav hit him on his right leg, Babulal Yadav hit him on his right arm and Fantu Yadav hit him on the back. Devo Yadav hit him on the right thigh with a spear-wielding stick. They raised halla and on hearing the alarm, Bhado Yadav, Sharif Yadav, Surendra Yadav, many people and villager came. Informant further stated that his mother and Ram Krishna Yadav(informant) were there.

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In his cross-examination, P.W.-2 has stated that he had given statement to the police and in his statement, he had stated that Babulal Yadav and Mitti Yadav had caught the deceased. His house is 10 meters away from Deoghari Raut house.

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P.W-3 Nirmala Devi , is wife of the deceased. She has stated in her evidence that on the day of occurrence her husband had gone to the Hatha Bandh to plough the field.

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She took the dung heap and went to throw it in the field. Rajendra and Devo had untied her husband’s plough, then, her husband said that it was his father's property and he had been ploughing it, and would continue ploughing to which Deoghari exhorted that he will not listen like this, beat him, Kill him. Accused Babulal and Mitti started shouting. Accused Hardev, Rajendra and Tetru assaulted her husband on his cage, temple and on the leg respectively with lathi and her husband fell down, then, all the accused persons assaulted him. Her husband was brought to the hospital.

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P.W.-3 has further stated that Devo and Deoghari were armed with spears in their hands and they assaulted her husband with the spear upside down. She started crying and shouting, then, Jaya Kishore, Ramakrishna, Vishnu, Suren, Bhado, and Sharif came there. They brought the injured to the hospital, but he died in the hospital during the treatment.

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P.W.-3 has further stated that the killers were Mahendra, Tetru, Hardev, Rajendra, Babulal, Deoghari, Fantus, Mitti and one Devo.

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In her cross-examination, P.W.-3 has deposed that she had stated before the police that accused Rajendra and Devo had opened the plough and Devo and Deoghari, had spears in their hands. She told the police that Fantu and Deoghari had assaulted her husband. Her husband died in the hospital. Her husband was not dead, but he was left, thinking he was dead

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and the killer ran away. While being beaten she started shouting. She started shouting with the very first blow of the lathi .

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She has further stated that place of occurrence is half a mile away from her village. Many people were ploughing. It would take an hour to reach that field from her house.

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P.W-4 Jay Kishore Prasad Yadav has stated in his evidence that on the day of occurrence Ram Prasad Manjhi had gone to plough the field and he had gone to Hatha Bahiyar to see the land. When he went there, accused persons Mahendra Yadav, Babulal Yadav, Fantu Yadav, Tetaru Yadav, Rajendra Yadav, Mitti Yadav, Hardev Yadav, Devo Yadav and Deoghari Raut were assaulting Ram Prasad (deceased) with lathi . Devo was armed with spear and he assaulted Ram Prasad on his left thigh with it.

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In his cross-examination P.W.-4 has stated that he had told to the police that the deceased Ram Prasad Manjhi, had gone to plough his ancestral land. He can't tell the jamabandi and daag number of the land where the fight took place.

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P.W.-4 has further stated that when he reached there, accused persons were assaulting Ram Prasad and Ram Prasad was standing and all the nine accused persons were assaulting him with a lathi .

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In his cross-examination P.W.-4 has further stated that Ram Prasad (deceased) was foster son. There was a land

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dispute between the accused persons and Ram Prasad.

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P.W.-5 Makeshwar Ishwar , is hearsay witness. He has

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stated in his evidence that on the day of occurrence, he was at his home and when he came out of the house, Ram Prasad's wife was coming crying from the Wootwadia Bahiyar from the north direction. She said save me, save me, then they went to the Hatha Bandh and found the bull, which Ram Prasad used to plough, was fallen and the bull was fallen in another field and he pulled the rope of the bull. Everyone went to search for Ram Prasad and he was found falling over a ridge of a field. He was unconscious and his body was drenched in blood and no one was seen in the plot. By then many people had arrived.

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P.W.-6 Roshan Ishwar has stated in his evidence that

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on the day of occurrence at 6-7 in the morning, he was getting kheera sown in his field. Prasad's (deceased) wife was coming shouting save me, save me. He went to see Ram Prasad Manjhi and found Ram Prasad was lying in a pool of blood in a field south of Veldihajor and north of Hatha Bandh.

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P.W.-7 Bharda Yadav , has stated in his evidence that

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on the day of occurrence he saw Ram Prasad Manjhi beaten and saw him upside down. Both his legs were broken and blood was oozing out. He was brought to Godda, where he died. He did not know, who killed him.

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P.W.-10 Ram Krishna Yadav , is the informant of the

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case. Informant has stated in his evidence that on 11.06.1996

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at 6.00 am, he was on the bank of Hatha Dam, in his farm. Ram Prasad was ploughing the field. Accused persons Rajendra Yadav, Fantu Yadav alias Phuleshwar Yadav, Babulal Yadav, Mitti Yadav, Devo Yadav, Hardev Yadav, Mahendra Yadav, Tetru Yadav, Deoghari Raut, reached the farm. Accused persons said they will not let him plough, untie the plough to which Ram Prasad said the farm is mine, he will plough the farm. Then, Devo Yadav and Rajendra Yadav went to untie the bulls. When they tried to pull the plough, Ram Prasad restrained them pulling the plough. Deoghari Raut, said "He won't listen like this, beat him." Hardev Yadav assaulted Ram Prasad in his thigh with a lathi . Ram Prasad tried to escape and ran away. Then, Tetru Yadav assaulted Ram Prasad on his waist with lathi . Deoghari Raut said, "What are you waiting for? Kill him", then, everyone started assaulting Ram Prasad and beaten him to half dead and fled towards east. There was a commotion and many people came there. The family members and the son of Ram Prasad, started shouting. Bhado Yadav, Suren Yadav, Sharif Raut, Mako Ishar, Roshan Ishar and other came there.

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The informant has further stated that Ram Prasad was taken to hospital and the doctor started treating him and matter was informed at the police station. The sub-inspector came from the police station. Ram Prasad was badly injured. Ram Prasad was not in position to give statement, so he

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(informant) gave statement, which was recorded by the subinspector. Informant has identified his signature and signature of Jayakishore Yadav on the fardbeyan which was marked as Ext-1 and Ext.-1/1 respectively. The informant has further stated that sub-inspector had made the inquest report of the dead body. Ram Prasad died on 11.06.1996 at 7:30 AM in the morning. He and Jayakishore Yadav had signed on the inquest report. Inquest report was marked as Ext.- 2.

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In his cross-examination, the informant has stated that the land which Ram Prasad was tilling bears daag no. 35 and jamabandi -7. The area of the field which was being ploughed was 10 kattha and when about four dhur of land was ploughed, he had reached there.

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The informant has further stated that conversation, quarrel, and scuffle lasted for 7-8 minutes and at that time he was at his farm. When accused persons started walking east, then he started shouting. People gathered there, picked him up and took him directly to the hospital. He was taken to the hospital with the hand cart of Tejan Ram, father of Allo Ram, resident of Ghat Pakriya. Ram prasad was picked up on the hand cart by him, Jaikishore Yadav, Vishnu Yadav, Bhado Yadav, Suren Yadav, Sharif Yadav and Ram Prasad were taken to the hospital by him and Suren Yadav, Vishnu Yadav, Bhado Yadav and Jaikishore Yadav also accompanied.

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The informant in his cross-examination has further

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stated that he had stated in the fardbeyan that Hardev had assaulted the deceased in the thigh with a lathi and Tetru in the waist.

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He had stated in the fardbeyan that Deoghari had exhorted to kill. He had stated to daroga that when Ram Prasad was half dead, then, Deoghari Raut said that the bastard is dead, let's go. Apart from Deoghari, Ram Prasad Manjhi (deceased) had a land dispute with other accused persons. The settlement case is still continuing. Ram Prasad Manjhi (deceased) wanted to take possession of the land from the accused persons and accused persons called Deoghari grandfather (nana) , but he is not in blood relation. Deoghari’s only concern with the land was that the accused persons had said that if Deoghari get them the possession of the land, they will give him five bighas of land.

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The informant has stated that this was not said in his presence, but there was discussion in the village about it. The informant has further stated that after giving his fardbeyan, daroga jee had not taken his statement. Daroga jee had gone to the village, but, he did not know the date when he had gone to the village.

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P.W.-11 Dr. Mantu Kumar Tekriwal , is the doctor who

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had performed the post-mortem. Doctor had stated in his evidence that on 11.06.1996, he was posted as Assistant Civil Surgeon at Sadar Hospital, Godda and on that day at 1:00 PM,

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he had performed the post mortem examination on the dead body of deceased Ram Prasad Yadav, S/o Raghu Manjhi, VillGhat Pakaria, P.S.-Godda Town, District-Godda and found following anti mortem injuries -

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I. Lacerated wound over left lower third of the leg 1" x ½" x 2".

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II. Lacerated wound over right lower third of the leg size 1½" x ½" x 1½"

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III. Compound fracture of both left and right tibia and fabula at the injury No. (1) and (2).

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IV. Multiple bruises at the back of the chest and abdomen size varying 1" x 1" to 6" x 2" red in colour.

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V.Fracture of left radio ulna at the middle.

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The doctor has opined that ante mortem injuries were

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caused by hard and blunt substances and all the injuries were grievous in nature. Time elapsed since death was within 36 hours and cause of death was due to shock and hemorrhage due to above-mentioned anti mortem injuries ultimately leading to cardio respiratory, failure and death. Doctor had proved the postmortem report which was marked as Ext.-3.

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P.W.-12 Shobhalal Patewa , is the investigating officer

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of the case. He has stated in his evidence that on 11.06.1996, he was posted as Sub-Inspector at Godda Town Police Station. Rumors came that an injured person had come to Sadar Hospital, to which sanh a no. 302 dated 11.06.1996 was registered. The Officer-in-Charge ordered to take necessary action, then, he went to Sadar Hospital, Godda where he took the statement of Ramakrishna Yadav, the cousin brother of the deceased.

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The investigating officer has proved the fardbeyan, which was marked as Ext.-4. Investigating officer has proved the signature of Ramakrishna Yadav(informant) and signature of Jaykishore Yadav, on the fardbeyan, which were marked as Ext.-1 and Ext.-1/1respectively. Formal FIR was marked as Ext.-5. Investigating Officer further stated that inquest report for Ram Prasad was prepared in the presence of witnesses Ramakrishna Yadav (informant) and Jayakishore Yadav, which had been previously marked as Ext.-2.

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Investigating Officer has further stated that the incident was of 11.06.1996. He reached the place of occurrence, which is in village Ghat Pakriya at Hatha Bahiyar Dam and inspected the place of occurrence which is a field bearing jamabandi - 7, daag no. 35, whose area is about 2 bigha 16 Katha 6 dhur . 26. Hence, from the testimonies as reproduced above and the fardbeyan and on going through the evidence of the prosecution witnesses, it has come that Ram Prasad Manjhi (deceased) was resident of village-Ghat Pakaria, P.S.-Godda Town, District-Godda and on the day of incident i.e. on 11.06.1996, at about 5.30 AM, in the morning, Ram Prasad Manjhi(deceased) had gone for ploughing his field, situated at north of the village Ghat Pakariya near Hathha Bandh and at that time informant P.W.-10 Ram Krishna Yadav (cousin brother of deceased) had also gone to towards Hathha Bandh, to see his farm and P.W.-2 Vishnu Kumar Yadav and P.W.-3

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Nirmala Devi, who are son and wife of the deceased respectively, were also present at the farm. In the meantime, accused persons/appellants nine in numbers, came at the farm, where Ram Prasad Manjhi (deceased) was ploughing the farm and Ram Prasad Manjhi was restrained from ploughing the field by the accused persons/appellants, due to which altercation took place and accused persons/appellants assaulted Ram Prasad Manjhi (deceased), with spear and lathi , as a result Ram Prasad Manjhi was injured and he was caried to hospital, but, he died.

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27. Hence, in the present case, allegation is that Ram Prasad Manjhi(deceased), who is cousin brother (chachera bhai) of the informant Ram Krishna Yadav (P.W.-10), was killed by the accused persons/appellants. The background of the case is land dispute between the parties.

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28. In the evidence of prosecution witnesses it has come that Ram Prasad Manjhi (deceased) was adopted by one Most. Dorni and except the accused Deoghari Raut, remaining other accused persons/appellants are either son-in-law (damaad) or grandson of Most. Dorni. Hence, there was dispute regarding the possession of the land between Ram Prasad Manjhi (deceased) and the accused persons/appellants.

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29. On the allegation of murder of Ram Prasad Manjhi (deceased), charges were framed against the eight accused persons, out of which, charge under section 302 of IPC was

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framed against the accused persons/appellants Tetru Yadav, Hardev Yadav and Mahendra Yadav and separate charges under section 302/34 IPC was framed against the remaining accused persons including the present appellants herein.

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30. Here, it is pertinent to note that accused persons/appellants Tetru Yadav, Hardev Yadav and Mahendra Yadav were convicted under section 302 of IPC. Remanning other accused including the present appellants were convicted under section 302/34 I.P.C.

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31. Convict Tetru Yadav, who was convicted under section 302 of Indian Penal Code, was appellant in Criminal Appeal (D.B.) No. 64 of 1998(P), but he died during the pendency of the appeal, hence, his appeal was abated.

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32. Further, remaining two other convicts under section 302 of IPC namely Mahendra Yadav and Hardev Yadav, had filed separate appeal being Criminal Appeal (D.B.) No. 81 of 1998(P), but both these appellants died during the pendency of the appeal, hence, their appeal was abated by order dated 21.03.2025, passed by co-ordinate Bench of this Court.

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33. Thus, in the present appeals, the conviction of the present appellants under Section 302/34 of the Indian Penal Code alone survives for consideration and is required to be adjudicated by this Court.

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34. Therefore, this Court, on the basis of documents available on record as exhibited and testimony of the

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witnesses, is to see as to whether there is sufficient material to attract offence under Section 302/34 IPC against the appellants.

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35. This Court, in order to appreciate the submissions advanced on behalf of appellants with respect to the culpability of the appellants for 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.

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36. 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 :-

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“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

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stated in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v. State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC 32] ,para 12, this Court held as under: (SCC p. 41) “12. Referring to these observations, Division Bench of this Court in Jagrup Singh case [Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus: (SCC p. 620, para 7) “7. … These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465], for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.” The Division Bench also further held that the decision in Virsa Singh case [Virsa Singh v. State of Punjab, AIR 1958 SC 465] has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury, that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is 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

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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.”

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37. In the case of State of Andhra Pradesh v. Rayavarapu

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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: —

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“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 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.

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38. 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

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SCC OnLine SC 857 which are being quoted as under:

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

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(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. ---

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(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 falls within 2^nd part of Section 299, while it would be an offence under Part II of Section 304 if the case falls within 3^rd part of Section 299 of the IPC.

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(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”,

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whereas the second part would apply when there is no such intention, but there is “guilty knowledge”.

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(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.

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(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,

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(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,

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(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.

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(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.

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(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

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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.

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(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 causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.

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(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.

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(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.

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(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.

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We once again recapitulate the facts of this case. On the fateful day of the incident, the father and son were working in their agricultural field early in the morning. They wanted to transport the crop, they had harvested and for that purpose they had called for a lorry. The lorry arrived, however, the deceased did not allow the driver of the lorry to use the disputed pathway. This led to a verbal altercation between the appellant and the deceased. After quite some time of the verbal altercation, the appellant hit a blow on the head of the deceased with the weapon of offence (weed axe) resulting in his death in the hospital.

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Looking at the overall evidence on record, we find it difficult to come to the conclusion that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death. The weapon of offence in the present case is a common agriculture tool. If a man is hit with a weed axe on the head with sufficient force, it is bound to cause, as here, death. It is true that the injuries shown in the post mortem report are fracture of the parietal bone as well as the temporal bone. The deceased died on account of the cerebral compression i.e. internal head injuries. However,

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the moot question is - whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. We are of the view that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. It is in such circumstances that we are inclined to take the view that the case on hand does not fall within clause thirdly of Section 300 of the IPC.

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69. In the aforesaid view of the matter and more particularly bearing the principles of law explained aforesaid, the present appeal is partly allowed. The conviction of the appellant under Section 304 Part I of the IPC is altered to one under Section 304 Part II of the IPC. For the altered conviction, the appellant is sentenced to undergo rigorous imprisonment for a period of five years.”

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

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(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302/34 of the Penal Code, 1860? or

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(ii) Whether the case is said to be covered under the exception to Section 300 of the Penal Code, 1860? or (iii) Whether on the basis of factual aspect, the case will come under the purview of Part 2 of Section 304 IPC ? or

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

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40. Since, all the aforesaid issues are inextricably

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interlinked, the same are being discussed and decided hereinbelow together.

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41. It needs to refer herein that 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. Hence, intention and ―knowledge as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mens rea necessary for the offence. The knowledge of 3^rd condition contemplates knowledge or the likelihood of the death of the person.

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42. If the offence which is covered by one of 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 Section 304part I IPC as it uses the expression that death is caused with the intention of causing death or of causing such bodily injury

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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.

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43. 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:

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“ 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.

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As was pointed out by this Court in Anda v. State of Rajasthan [AIR 1966 SC 148 : 1966 Cri LJ 171] x“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.”

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44. 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

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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.

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45. 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.

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46. 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.

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47. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P. reported in (1996) 6 SCC 129 has been pleased to

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hold as under paragraph 20 which reads hereunder as :-

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“ 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

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to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death the charged offences would fall under Section 304 Part II. However before any charge under Section 304 Part II can be framed, the material on record must at least prima facie show that the accused is guilty of culpable homicide and the act allegedly committed by him must amount to culpable homicide. However, if the material relied upon for framing such a charge against the accused concerned falls short of even prima facie indicating that the accused appeared to be guilty of an offence of culpable homicide Section 304 Part I or Part II would get out of the picture. In this connection we have to keep in view Section 299 of the Penal Code, 1860 which defines culpable homicide. It lays down that: “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” Consequently the material relied upon by the prosecution for framing a charge under Section 304 Part II must at least prima facie indicate that the accused had done an act which had caused death with at least such a knowledge that he was by such act likely to cause death. ---"

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48. Further, 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

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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.

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49. 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 :-

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(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.

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

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

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(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. 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.

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50. 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.

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51. 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.

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52. This Court after taking into consideration the law laid down by Hon'ble Apex Court more particularly in the case of Andhra Pradesh v. Rayavarapu Punnayya (supra) and Anbazhagan (Supra) wherein the difference has been carved out in between Section 299 IPC, Section 300 and Section 304 IPC, would like to appreciate the evidence available on record in the present case.

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53. PW-2 Vishnu Kumar Yadav, PW-3 Nirmala Devi and informant PW-10 Ram Krishna Yadav, who are son, wife and cousin brother respectively of the Ram Prasad Manjhi murder of Ram Prasad Manjhi(deceased).

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54. In his evidence P.W.-2 Vishnu Kumar Yadav, has stated that on the day occurrence at 6.30 a.m., in the morning his father(deceased) was ploughing the field to sow paddy seeds, at Hatha Dam, and he had gone there with the paddy. In the

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meantime, accused persons including the appellants Rajendra Yadav, Mitti Yadav, Babulal Yadav and Faneshwar alias Fantu Yadav came there armed with lathi . Appellant Rajendra Yadav said, "Open the plow" and when the plow was not opened, accused persons opened it and chased them away. Deoghari Raut (since dead) threatened to kill. When his father tried to run away, Babulal Yadav and Mitti tried to catch his father and after some distance, they caught him. Hardev Yadav (since dead) hit his father in the cage with his stick, Mahendra Yadav (since dead) hit on the temple with a stick and Tetru Yadav (since dead) hit him in the buttocks. P.W.-2 further stated that his father fell down and after falling, Rajendra Yadav hit his father on his left leg, Mitti Yadav hit him on his right leg, Babulal Yadav hit him on his right arm and Fantu Yadav hit him on the back.

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55. P.W-3 Nirmala Devi, has stated in her evidence that on the day of occurrence her husband had gone to the Hatha Bandh to plough the field and she took the dung heap and went to throw it in the field. Appellant Rajendra untied her husband’s plough, then, her husband said that it was his father's property and he had been ploughing it, and would continue ploughing to which accused Deoghari (since dead) exhorted to Kill. Accused Babulal and Mitti started shouting. Accused Hardev (since dead), appellant Rajendra and Tetru(since dead) assaulted her husband on his cage, temple

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and on the leg respectively with lathi and her husband fell down, then, all the accused persons assaulted him. Her husband was brought to the hospital, but he died in the hospital during the treatment. P.W.-3 stated that Fantu had assaulted her husband.

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56. P.W.-10 Ram Krishna Yadav, is the informant of the case. Informant has stated in his evidence that on 11.06.1996 at 6.00 am, he was on the bank of Hatha Dam, in his farm. Ram Prasad(deceased) was ploughing the field. Accused persons including the appellants Rajendra Yadav, Fantu Yadav alias Faneshwar Yadav, Babulal Yadav and Mitti Yadav reached the farm. Accused persons said they will not let him plough, untie the plough to which Ram Prasad said that farm is mine, he will plough the farm. Then, appellant Rajendra Yadav went to untie the bulls to which Ram Prasad(deceased) restrained them pulling the plough. Deoghari Raut (since dead) said "He won't listen like this, beat him." Hardev Yadav (since dead) assaulted Ram Prasad in his thigh with a lathi . Ram Prasad tried to escape and he ran away. Then, Tetru Yadav (since dead) assaulted Ram Prasad on his waist with lathi . Deoghari Raut exhorted to kill, then, everyone started assaulting Ram Prasad and beaten him to half dead and fled towards east. In his cross-examination, informant further stated that conversation, quarrel, and scuffle lasted for 7-8 minutes and at that time he was at his farm.

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57. Hence, from the deposition of PW-2 Vishnu Kumar Yadav, PW-3 Nirmala Devi and informant PW-10 Ram Krishna Yadav, this Court find that all these witnesses were present at the place of occurrence and had seen appellants Rajendra Yadav, Faneshwar alias Fantu Yadav, Babulal Yadav and Mitti Yadav, came at the place of occurrence armed with lathi . Appellant Rajendra Yadav said to open the plough and when the plough was not opened, accused persons opened it. Deoghari Raut (since dead) exhorted to kill and when Ram Prasad (deceased) tried to run away, appellants Babulal Yadav and Mitti tried to caught the deceased and after some distance, they caught them. Appellant Rajendra Yadav hit the deceased on his left leg, Mitti Yadav hit him on his right leg, Babulal Yadav hit him on his right arm and Fantu Yadav hit him on the back.

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58. Now, coming to the medical evidence of P.W-11 Doctor, who had conducted postmortem examination on the dead body of the deceased Ram Prasad. Doctor apart from bruises and fracture had found two lacerated wounds - lacerated wound over left lower third of the leg 1" x ½" x 2" and lacerated wound over right lower third of the leg size 1½" x ½" x 1½" , on the body of the deceased, which according to the Doctor were caused by hard and blunt substances.

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59. Hence, homicidal death of Ram Prasad caused due to assault, by the other accused persons including the appellants

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Rajendra Yadav, Faneshwar alias Fantu Yadav, Babulal Yadav and Mitti Yadav, which is proved by the ocular evidence of P.W-2, P.W-3 and informant P.W-10, and the same has been substantiated by the medical evidence of P.W-11 Doctor, wherein doctor has opined the cause of death due to shock and hemorrhage due to above-mentioned anti mortem injuries ultimately leading to cardio respiratory failure and death.

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60. In the present case, in the evidence it has come that on the day of occurrence nine accused persons including the appellants herein had come to the place of occurrence and before the incident of assault on the deceased there was altercation between deceased and accused persons regarding the ploughing the farm. Thereafter, deceased was assaulted by the accused persons leading to injury to the deceased, which ultimately resulted in death of the deceased in the hospital. Informant P.W.-10 in his cross-examination had also stated that Ram Prasad(deceased) had land dispute with other accused persons and deceased wanted to take possession of the land.

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61. Further, from the evidence of P.W.-2, who is the son of the deceased and eye witness to the assault on his father, had stated in his evidence that appellants herein had assaulted on leg, arm and back of his father.

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62. Again, in the evidence of P.W.-2, P.W.-3 and informant P.W.-10, it has also come that lathi was used in assaulting the

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deceased, which also finds support from the medical evidence of the doctor, who had found lacerated wound and fracture of leg on the body of the deceased.

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63. This Court is of the considered view that, as per the prosecution case, nine accused persons including the appellants herein had come to the place of occurrence and assaulted the deceased. If there had been any pre-determined intention to cause the death of the deceased, the accused persons, being nine in number, could have killed him at the spot itself. However, that is not the case here, as the deceased succumbed to his injuries later in the hospital.

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64. Further, absence of intention on the part of appellants herein can also be gathered from the evidence that lathi was used in the commission of alleged crime and appellants herein had not assaulted the deceased on any vital part of the body rather appellants herein had assaulted on leg, arm and back of the body of the deceased, which is substantiated by the evidence of P.W.-2, who is the son of the deceased and eye witness to the assault on his deceased father.

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65. From the aforesaid, it appears that there was no premeditation on the part of the appellants herein to cause the alleged act and only when altercation took place between the parties, deceased was assaulted on his leg, arm and back with lathi which resulted in death of the deceased.

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66. Here, it is also pertinent to note that so far as guilt of

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appellants herein is concerned, this court finds that all the appellants herein were separately charged under section 302/34 of IPC and the main assailants were charged under section 302 IPC and the main assailants who were convicted under section 302 IPC have already died, during the pendency of their appeal. But, the appellants herein were convicted under section 302 IPC with the aid of section 34 of IPC only.

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67. Therefore, from the genesis and manner of the offence, it can safely be inferred that there was no intention on the part of the appellants herein to kill the deceased.

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68. 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, this Court is of the view that the assault made by the appellants Rajendra Yadav, Faneshwar alias Fantu Yadav, Babulal Yadav and Mitti Yadav was not a premeditated and intentional.

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69. Therefore, this Court is of the considered view that the present case squarely falls under the Section 304 part-II of the IPC.

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70. Accordingly, all the issues are hereby answered. Conclusion

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71. Accordingly, on the basis of discussion made hereinabove this Court is of the view that the judgment impugned convicting the appellants Rajendra Yadav @

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Rajendra Prasad Yadav, Faneshwar alias Fantu Yadav, Babulal Yadav and Mitti Yadav, under Section 302/34 I.P.C. needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-II of the Indian Penal Code.

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72. Consequently, the judgment passed by the learned trial Court is modified and Rajendra Yadav alias Rajendra Prasad Yadav and Faneshwar alias Fantush Yadav, appellants in Criminal Appeal (DB) No. 4 of 1998(P) and Babu Lal Yadav and Mitti Yadav appellants in Criminal Appeal (DB) No.64 of 1998(P) are held guilty under Section 304 Part II of the Indian Penal Code.

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73. On the question of sentence, this Court finds that occurrence is of year 1996 and about 30 years have passed. At present appellants herein are in their sixties and mid-fifties and they have faced rigor and vigor of trial and appeal. They, were on bail during pendency of their appeal and no complain has been received against them during the period of their suspension of sentence.

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74. In the aforesaid circumstances, this Court is inclined to modify the sentence of imprisonment of appellants herein to the period already undergone by them.

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75. In view of the discussions made hereinabove, impugned conviction dated 19.12.1997 and order of sentence dated 22.12.1997 passed by learned 1^st Additional District and

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Sessions Judge, Godda, in Sessions Trial No.216 of 1996/ 146 of 1996, is modified to the aforesaid extent.

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76. Consequently, appellants Rajendra Yadav alias Rajendra Prasad Yadav and Faneshwar alias Fantush Yadav, appellants in Criminal Appeal (DB) No. 4 of 1998(P) and Babu Lal Yadav and Mitti Yadav appellants in Criminal Appeal (DB) No.64 of 1998(P), are hereby discharged from all criminal liabilities. Since the aforesaid appellants are on bail, they are discharged from the liability of the bail bonds.

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

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78. Let the Lower Court Records be sent back to the Court concerned forthwith, along with the copy of this Judgment.

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(Sujit Narayan Prasad, J.)

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I agree.

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(Sanjay Prasad, J.) (Sanjay Prasad, J.)

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Jharkhand High Court, Ranchi Dated, the 12^th May, 2026. Birendra / A.F.R.