Jharkhand High Court
Bindeshwar Murmu Son Of Late Bhogal … vs The State Of Bihar (Now Jharkhand) on 6 April, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Deepak Roshan
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (D.B) No. 139 of 1998 (R)
(Against the judgment of conviction dated 29.04.1998 and the order of
sentence dated 04.05.1998 passed by the learned Sessions Judge, Dhanbad
in Sessions Trial No. 10 of 1997)
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Bindeshwar Murmu son of Late Bhogal Murmu, resident of Police Station
Barwadda, District-Dhanbad ....... ... Appellant
Versus
The State of Bihar (now Jharkhand) ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellant : Mr. Suraj Singh, Advocate
For the State : Mr. Shiv Shankar Kumar, APP
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C.A.V on 10.03.2026 Pronounced on 06/04/2026
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 374(2) of the Code of Criminal
Procedure is directed against judgment of conviction dated 29.04.1998
and the order of sentence dated 04.05.1998 passed by the learned Sessions
Judge, Dhanbad in Sessions Trial No. 10 of 1997 whereby and whereunder
the appellant, namely, Bindeshwar Murmu has been convicted under
sections 302 of the Indian Penal Code and sentenced to undergo RI for
life.
Factual Matrix
2. The prosecution case was instituted on the fardbayan of the informant
Babni Manjhian (P.W.-6) recorded on 07.10.1996 at 3.00 P.M., at
courtyard of her house, who stated that at 12 Noon, she served meal to her
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father-in-law Chandlal Manjhi (deceased), age 60 years, in the courtyard
and thereafter, she sat on the door (Chaukhat) with her child.
3. Informant further stated that in the meantime, the wife of the accused
Bindeshwar Manjhi (appellant herein), who is also sister-in -law(sarhaj)
of her father-in-law and was living with her family in the informant’s
house for the last three months, came to the courtyard. Then, Chandlal
Manjhi (deceased) told her to sit, then, she sat by the side of Chandlal
Manjhi and started talking.
4. Informant further stated that in the meantime accused Bindeshwar
Murmu, who was lying in the cot in room adjoining to the courtyard, came
towards the courtyard and seeing them sitting together, went inside the
room and came out of the room armed with katra (katta) [ a weapon used
to cut he goat] and in anger, started inflicting repeated katra (katta) blows
on the head of her father-in-law Chandlal Manjhi.
5. The informant ran outside raising halla then villagers came and accused
Bindeshwar Murmu tried to flee away after jumping the boundary wall,
but he was chased and apprehended by the villagers. Informant’s father-
in-law Chandlal Manjhi, died on the place of occurrence itself. Katra
(katta) used in the commission of crime was kept by the villager, which
was handed over to the police.
6. On the basis of the fardbeyan of the informant, FIR being Govindpur
(Barwadda) P.S. Case No. 91/1996 dated 07.10.1996 was registered
against the appellant under section 304 of IPC. After investigation, the
police submitted charge sheet against the appellant for the offences under
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sections 304/302 IPC and, thereafter, the case was committed to the court
of Sessions.
7. Charges were framed against the appellant under section 304 of IPC to
which appellant pleaded not guilty and claimed to be tried.
8. Trial commenced and the statements of the appellant was recorded
under Section 313 of Cr.P.C. At the conclusion of trial the appellant was
convicted and sentenced as aforesaid by the learned trial Court.
9. The aforesaid order of conviction and sentence is under challenge
herein.
Submission of the learned counsel for the appellant:
10. Learned counsel for the appellant has taken the following
grounds for interfering with the findings recorded by the learned trial
Court in the impugned judgment:
(i) The learned Trial Court has decided the case from a wrong
angle of vision and thus, came to an erroneous decision.
(ii) The learned trial Court has failed to take into
consideration that there is virtually no evidence to show the
complicity of the appellant with the alleged occurrence.
(iii) It has been contended that the learned trial Court has
failed to take into consideration that the informant (PW-6) in
her fardbeyan has stated that the weapon katra (katta) was
handed over to the police by the co-villagers but in her
deposition, she has stated that she did not know as to who had
handed over the said weapon to the police.
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(iv) It has been contended that the learned trial Court has
failed to take into consideration that no finger’s print of the
accused/appellant has been taken by the Investigation Officer
to prove that the appellant had only used the said weapon
katra (katta).
(v) It has been contended that the another eye witness of the
said occurrence, namely, Budhni Manjhian, who is the wife
of the accused-appellant, has not been examined by the
prosecution and, as such, the prosecution has miserably failed
to establish the charges said to be proved beyond all
reasonable doubt as the appellant has been made accused in
the case only on the evidence of the informant.
(vi) It has been contended that the learned trial Court has
failed to take into consideration that in the seizure list, it is not
mentioned whether the alleged weapon katra (katta) was
bloodstained or not.
(vii) Learned counsel also submitted that Investigating
Officer had not mentioned the hour of recording of statement
of particular witnesses in the case diary and hence, raises
suspicion in the prosecution case.
(viii) It has been contended that that the deposition of the
other witnesses, except the informant, on the point of
occurrence is doubtful for the reasons that none of the
witnesses had seen the occurrence and they are only the
hearsay witness and most of them have denied that they were
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present at the place of occurrence and, as such, the story being
concocted with a purpose to falsely implicate the appellant
cannot be ruled out.
(ix) It has been contended that the learned trial Court has
failed to take into consideration the fact that the seized
weapon and bloodstained earth were not sent for chemical
examination and, as such, the prosecution has failed to prove
its case.
(x) Learned counsel for the appellant/accused has further
contended that even if entire prosecution story presumed to
be correct, it is not the case of Section 302 of IPC, rather it is
the case of offence punishable under Part I of Section 304 of
IPC, as accused/appellant has committed homicide not
amounting to murder and the offence committed is without
any preparation and premeditation and the alleged offence
has taken place due to sudden provocation on seeing his wife
seating with the deceased.
11. The learned counsel for the appellant, based upon the aforesaid
grounds, has submitted that the impugned judgment of conviction and
order of sentence passed by the learned Trial Court convicting the
appellant under section 302 of the Indian Penal Code, therefore, is fit to
be quashed and set aside.
Submission of the learned A.P.P for the State:
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12. While defending the impugned judgment of conviction and
sentence, the learned Addl. Public Prosecutor appearing for the State has
argued by taking the following grounds:
(i) The conviction of the appellant under section 302 of the
Indian Penal Code does not suffer from an error, since, ample
evidence has been produced by the prosecution.
(ii) The Informant himself had seen that the appellant,
namely, Bindeshwar Murmu who had brutally assaulted
informant’s father-in-law with katra (katta) due to which he
died on the spot and, as such, the impugned judgment does
not require any interference.
(iii) The argument has been advanced that the ample material
has been produced by the prosecuting agency who established
the case under section 302 of the IPC since the fact has come
in course of evidence of the informant (PW-6) and the son
(PW-1) of the deceased that the accused-appellant had
brutally assaulted the deceased with katra (katta) due to
which he died.
(iv) The argument has also been advanced that the doctor
(PW-9) had found incised wound on the head and other parts
of the deceased and, hence, doctor has supported the
prosecution version of inflicting assault by the appellant.
(v) It has further been submitted that prosecution has proved
its case beyond reasonable doubt and appellant/accused has
not made out any ground to modify the punishment to that of
Part I of Section 304 of IPC.
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13. The learned Addl. Public Prosecutor appearing for the
State, based upon the aforesaid premise, has submitted that the
impugned judgment so far as the appellant is concerned, does not
suffer from any error and does not require any interference so far as
the appellant’s conviction under section 302 of the IPC is
concerned, hence, the instant appeal is fit to be dismissed.
Analysis
14. We have heard learned counsel for the parties, perused the
documents available on record as also the finding recorded by the learned
Trial Court in the impugned judgment.
15. We have also gone through the testimonies of the witnesses as
available in the trial Court records as also the exhibits appended therewith.
16. This Court, before considering the argument advanced on behalf
of the parties, is now proceeding to consider the testimonies of witnesses
which have been recorded by the learned trial Court.
17. It is evident from record that in order to substantiate the case, the
prosecution had altogether examined 11 witnesses out of whom P.W.-6
Babni Manjhian, is the informant of the case and daughter-in-law of the
deceased; PW1-Kesto Manjhi @ Jaleshwar Manjhi, is the son of the
deceased; PW-9 is Dr. D.K. Dhiraj, who had conducted post-mortem
examination; PW-10 Krishan Prasad Yadav, is the officer-in-Charge and
PW-11 Janardan Prasad Jha, is the Investigating Officer of the case.
18. PW-2 Dineshwar Murmu, PW-3 Samar Murmu, PW-4 Sona
Ram Marandi, PW-7 Basudeo Goswami- and PW-8 Bipin Murmu, were
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declared hostile by the prosecution. PW-5 Kali Charan Murmu, was
tendered.
19. PW-1 Kesto Manjhi @ Jaleshwar Manjhi, is the son of the
deceased and husband of the informant. He has deposed that at the time of
occurrence he was on duty at Bank More and on receiving information he
came to his house where he saw the dead body of his father lying at
courtyard where katra (katta) was lying, which is used to cut the he goat.
His wife told him that Binedshwar Murmu had killed his father with katra
(katta), by holding his hair, when he was taking meal. He has deposed that
Bindeshwar Murmu (appellant), is his maternal uncle and he used to live
in the house of this witness along with family. He has further deposed that
police had come to his house and his wife gave statement to the police,
and he was present at the time. His wife put her thumb impression on the
statement, and he signed over it which has been marked as Ext.-1.
20. PW-1 further deposed that police had seized blood-stained soil
from the scene of the crime and prepared seizure list on which he had put
his thumb impression over it which has been marked as Ext.-1/1. The
accused, Bindeshwar Murmu, was captured by the villagers and he had
handed over the aforesaid katra (katta) to the police, and the police had
prepared a document of it in front of witnesses.
21. In his cross-examination PW-1 stated that he is a truck driver and
on getting information from the truck owner, he went to his house. The
accused was living in his house for about two and a half months before the
occurrence and he never told the accused to vacate his house.PW-1 further
stated that he is illiterate. He did not read what was written on the paper
(Ext.-1/1) over which he had signed as he was not much educated. He did
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not tell the name of the person who first caught the accused. Villagers had
not caught hold the accused in his presence. He has denied the suggestion
that neither the deceased had committed rape upon the wife of the accused
several times nor any complaint was made by the neighbours to him about
the same. He has deposed that he did not take rent from the accused.
22. PW-2 Dineshwar Murmu, has stated in his examination-in chief
that police had come to the place of occurrence and he had signed on the
seizure list (blood stained soil) prepared by the police which has been
marked as Ext.-1/2. This witness has been declared hostile.
23. PW-3 Samar Murmu is the co-villager and seizure-list witness
and he was declared hostile. In his cross-examination by the prosecution,
PW-3 had identified his signature on the signature list of recovery of katra
(katta) and his signature was marked as Ext.-1/3.
24. In his further cross-examination, PW-3 stated that he had no
personal knowledge of the incident. He did not see anyone killing Chand
Lal Manjhi. He never visited Chand Lal Manjhi’s house and nothing was
seized by the police in his presence. He has stated that he had put his
signature on the seizure list at the village road.
25. PW-4 Sona Ram Marandi is also the co-villager and one of the
witnesses who had put his signature over the inquest report. He had stated
in his examination-in-chief that he had made his signature on the inquest
report. He has been declared hostile.
26. PW-6 Babni Manjhian is the informant of the case and daughter-
in-law of the deceased. She has deposed that the occurrence was before
Durga Puja of last year. She has deposed that at that time, it was about
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11 A.M., and she was at her house and her father-in-law Chand Lal Manjhi
was taking meal in the courtyard. In the meantime, accused Bindeshwar
Murmu came there armed with Katra (katta) and assaulted Chand Lal
Manjhi with Katra(katta) over his head and other parts of the body due to
which Chand Lal Manjhi, who sitting and taking meal, fell down and died.
She raised halla, then people assembled there and accused Bindeshwar
threw Katra (katta) and tried to flee away but the people caught hold him.
She has stated that Bindeshwar Murmu is her maternal father-in-law and
he was living in her house as his house was ruined due to rain.
27. In her cross-examination at paragraph-6, the informant stated
that the accused had murdered the deceased with a Katra(katta) in front
of her and then she had raised alarm. After the assault, she reached near
Chand Lal Manjhi and found him dead. At para-7, informant stated that
the accused threw away the Katra(katta) in the courtyard and started
running towards east. The accused was escaping by scaling the wall. She
cannot say that what was the height of that wall. The said Katra(katta) was
seized by the police but she cannot say that who had handed over
Katra(katta) to the police. At para-8, the informant has stated that her
husband is a truck driver and he came at the place of occurrence at about
2-3 PM. At para-9 the informant has stated that her father-in-law, Chand
Lal was assaulted on his forehead and both shoulders. At para-11, the
informant has denied the suggestion that her father-in-law had bad
character due to which he had enmity in the village. At para-11, the
informant has stated the they never told accused Bindeshwar Murmu to
vacate the house and they never took the rent of the house from him.
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28. PW-8 Vipin Murmu is the seizure list witness who has identified
his signature on the seizure list of recovery of weapon Katra(katta) which
has been marked as Ext.1/4. He has been declared hostile.
29. PW-6 Dr. D.K. Dhiraj, is the doctor who had conducted
postmortem over the dead body of Chand Lal Manjhi on 08.10.1996 at
6.30 A.M., and found the following antemortem injuries on the body of
the deceased-:
(A) Abrasion No.:
(i) ¼” x ¼” on right knee cap.
(ii) ¼” x ¼” on left knee cap.
(B) Incised wound
(i) 1 ½” x ¼” x brain deep placed vertically above inner part
of right eyebrow and forehead.
(ii) 4″ x ¾” x brain deep on right side of forehead along hair
line placed obliquely.
(iii) 6″ x 1″ x brain deep left zygomatic arch to left parietal
area.
(iv) Flap type ¾” x 4″ x skin deep on dorsum of left hand.
On dissection, contusion of right parietal scalp was seen. Multiple
fracture of the left parietal, frontal and left upper jaw bone were seen
with laceration of the brain matter and intra cerebral hemorrhages.
Viscera was pale. Both sides of heart and the urinary blooder were
partially full. Stomach contained approximately 100 CC. partly
digested rice and “sug”.
The death resulted from the shock due to aforementioned homicidal
sharp cutting injuries.
Time elapsed since death 18 ± 6 hours.
All the cut injuries might have been caused by Katra (Katta).
The post-mortem report was marked as Ext.-2. In his cross-
examination, the doctor stated that incised or cut injuries are not possible
by fall on the ground. These injuries are not possible if the injured dashes
against sharp articles.
30. PW-10 Krishna Prasad Yadav, has stated in his evidence that on
07.10.1996, he was posted as officer-in-charge of Barwadda police
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station. On 07.10.1996, he received information that one man was
murdered in the village Asanbani and thereafter, he proceeded there and
saw the dead body of Chand Lal Manjhi. He prepared the inquest report
which is in his own handwriting and signature. This inquest report was
marked as Ext.- 3.
31. PW-10 further stated that Babni Manjhian (Informant) gave her
fardbeyan at the place of occurrence which he recorded in his handwriting
and bears his signature. The fardbeyan was marked as Ext.-4. He has
stated that the weapon used in the murder of the deceased was handed over
to him by Kesto Manjhi (PW -1, the son of the deceased), Sona Ram son
of Nunu Ram Manjhi and Basudeo Goswami son of Jai Lal Goswami, who
are the co-villagers. He prepared the seizure list of the recovered weapon,
which was marked as Ext.-5. He has identified the weapon used in the
murder of deceased by saying that it was katar which was handed over to
him by the villagers and thereafter he seized the same and kept it in
maalkhana of the police station by affixing number as M.R.10/96 and the
said katar was marked as Material Ext.-1. PW-10 further stated that he
had seized blood stained earth from the place of occurrence in presence of
the witnesses and prepared seizure list in his own handwriting and
signature which has been marked as Ext-5/1.
32. In his cross-examination, PW-10 stated that the Katar was about
14″ long with a handle of about 9″. He stated that neither he nor any other
witnesses put his signature on the katar, however, malkhana entry number
was written on katar, and case number was also written on it. He further
stated that Sessions Trial Number was written on the paper pasted on the
Katar but Govindpur Police Station case number was not mentioned
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thereon. He could not see who had written the Sessions Trial Number.
This witness further stated that case no.101/96 was written on the katar.
33. PW-11 Janardan Prasad Jha, is the Investigating Officer of the
case. He has stated in his evidence that on 07.10.1996, while he was posted
as Sub-Inspector of Police at Barwadda Out Post, he along with the
Officer-in-charge (PW-10) went to the place of occurrence situated at
Asanbani village on the basis of information that a person had been killed
and on reaching there, he saw dead body of Chandlal Manjhi. The Officer-
in-charge had recorded the färdbeyan of the daughter-in-law (PW-6) of
the deceased and prepared the inquest report and the seizure list of the
recovered weapon. Villagers had caught hold of the accused and accused
was handed over to the police.
34. Investigating Officer further stated that he had inspected the
place of occurrence, which is courtyard of the informant. The house of the
informant and the house of the accused is about 10 feet east and about 12-
13 feet west respectively from the place of occurrence, which is also the
residence of both the informant and the accused, facing west and the
courtyard was used by both the parties. He has further stated that four feet
south of the incident site, there is a brick wall in the courtyard and 20 feet
north also, there is a brick wall in the shape of a boundary and to the east
there is a mud hut of khaprail. He has stated that at the place of
occurrence, the deceased, Chand Lal Manjhi, was found lying on his
stomach. There were multiple marks of sharp-edged weapons which were
clearly visible on his forehead and his head and neck were pool in blood.
The blood-stained soil and the weapon katra which was used to commit
the murder of the deceased was handed over by the villagers and seizure
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list of it was made in presence of two witnesses. The accused was residing
in the same house where the deceased resided as the house of the accused
was destroyed due to rain. He has described the place of occurrence by
saying that the length of the courtyard is approximately 40 feet from east
to west and approximately 30 feet from north to south.
35. Investigating Officer further stated that he took evidence of other
witnesses and took the accused to the police station and thereafter sent him
to the Court. He received postmortem report on 08.10.1996 and after
supervision by the Dy.SP of the case, he submitted charge sheet against
the accused after completion of investigation. He identified the FIR which
was written in the handwriting of K.P Yadav, the officer-in-charge, which
has been marked as Ext.-6.
36. During cross-examination, PW-11 has stated that in the case
diary, on its left side, the date, time and details of the action were to be
written but he did not write. He has stated that he had not written in the
diary at what time he left the spot and did not write in the seizure list of
weapon that katra was stained with blood. He has stated that he was
assigned the investigation of the case at the place of occurrence and the
dead body of the deceased was immediately sent for post-mortem in his
presence. He has further stated that he did not record the statement of
Bahra Murmu and Panchu Mahto.
37. During cross-examination, PW-11 has stated that he did not
record the statement of any witness under Section 164 of the CrPC. Apart
from the informant and Buddhi Manjhian, no other witness told him to be
an eye witness of the occurrence. He had written the names of Buddhni
Manjhian in the charge sheet column of witnesses. He did not ask the
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witnesses as to who had caught the accused. He has further stated that the
witnesses who were declared hostile did not tell him the date of the
incident. He did not make a sketch map of the place of occurrence and did
not seize the clothes of the deceased. In the case diary he had neither
written the area of the blood-stained soil found at the place of occurrence
nor he had mentioned the number of blood spills and he had not written
down the locations of the blood spills in the courtyard.
38. In his cross-examination, Investigating Officer further stated that
he did not send the blood stained soil and katra to the laboratory for
testing. The challan of the dead body was made by the Officer-in-Charge-
K.P. Yadav. He had identified and proved the carbon copy of challan of
the dead body which was in the handwriting of the Officer-in-Charge-
K.P. Yadav, which was marked as Ext.-A. He has stated that the witnesses
had told him about Chand Lal’s illegal relationship with the wife of the
accused. He has denied the suggestion that the villagers had killed the
deceased and conspired with him and had lodged a false case of
committing murder of the deceased against the accused.
39. Learned trial Court, based upon the testimonies of witnesses and
material available on record, has passed the impugned judgment of
conviction and has convicted the appellant under Section 302 of IPC and
sentenced him to undergo imprisonment for life.
40. This Court, on the basis of aforesaid factual aspect vis-à-vis
argument advanced on behalf of parties, is now proceeding to examine the
legality and propriety of impugned judgment of conviction and order of
sentence by formulating following questions to be answered by this Court:
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i.Whether the seizure list witnesses, turning hostile, their evidence
shall be discarded as a whole?
ii. Whether the informant P.W.-6, who is the sole eye witness of the
case, is trustworthy and reliable, based upon which the judgment of
conviction against the appellant under Section 302 of IPC has been
passed.
iii.Whether there was sufficient and cogent material evidence against
the present petitioner to prove the case beyond reasonable doubt.
Re: Issue No.(i)
41. Regarding the first issue whether the seizure list witnesses,
turning hostile, their evidence shall be discarded as a whole, this Court
finds that PW-8 Bipin Murmu and PW-3 Samar Murmu, who are
witnesses to the seizure of weapon katra (katta) and PW-2 Dineshwar
Murmu, who is witness to the seizure of blood stain earth from the place
of occurrence, were declared hostile by the prosecution.
42. At this juncture, it would be pertinent to refer the judgments
rendered by the Hon’ble Apex Court on the issue of hostile witness. The
law is well settled that merely because the witness is declared as hostile,
whole of his evidence is not liable to be thrown away.
43. In case of Attar Singh v. State of Maharashtra, (2013) 11 SCC
719, the Hon’ble Apex Court held that merely because a witness becomes
hostile it would not result in throwing out the prosecution case, but the
Court must see the relative effect of his testimony. If the evidence of a
hostile witness is corroborated by other evidence, there is no legal bar to
convict the accused. The Hon’ble Apex Court further held that testimony
of a hostile witness is acceptable to the extent it is corroborated by that of
a reliable witness. It is, therefore, open to the Court to consider the
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evidence and there is no objection to a part of that evidence being made
use of in support of the prosecution or in support of the accused. The
relevant paragraphs-14 to 17 of this judgment are quoted herein below-
“14. We have meticulously considered the arguments advanced on
this vital aspect of the matter on which the conviction and sentence
imposed on the appellant is based. This compels us to consider as to
whether the conviction and sentence recorded on the basis of the
testimony of the witness who has been declared hostile could be
relied upon for recording conviction of the appellant-accused. But it
was difficult to overlook the relevance and value of the evidence of
even a hostile witness while considering as to what extent their
evidence could be allowed to be relied upon and used by the
prosecution. It could not be ignored that when a witness is declared
hostile and when his testimony is not shaken on material points in the
cross-examination, there is no ground to reject his testimony in toto
as it is well settled by a catena of decisions that the court is not
precluded from taking into account the statement of a hostile witness
altogether and it is not necessary to discard the same in toto and can
be relied upon partly. If some portion of the statement of the hostile
witness inspires confidence, it can be relied upon. He cannot be
thrown out as wholly unreliable. This was the view expressed by this
Court in Syad Akbar v. State of Karnataka [(1980) 1 SCC 30 : 1980
SCC (Cri) 59] whereby the learned Judges of the Supreme Court
reversed the judgment of the Karnataka High Court which had
discarded the evidence of a hostile witness in its entirety.
15. Similarly, other High Courts in Gulshan Kumar v. State [1993
Cri LJ 1525 (Del)] as also Kunwar v. State of U.P. [1993 Cri LJ
3421 (All)] as also Haneefa v. State [1993 Cri LJ 2125 (Ker)] have
held that it is not necessary to discard the evidence of the hostile
witness in toto and can be relied upon partly. So also, in State of
U.P. v. Chet Ram [(1989) 2 SCC 425 : 1989 SCC (Cri) 388 : AIR
1989 SC 1543 : 1989 Cri LJ 1785] , it was held that if some portion
of the statement of the hostile witness inspires confidence it can be
relied upon and the witness cannot be termed as wholly unreliable.
It was further categorically held in Shatrughan v. State of
M.P. [1993 Cri LJ 120 (MP)] that hostile witness is not necessarily
a false witness. Granting of a permission by the court to cross-
examine his own witness does not amount to adjudication by the17
2026:JHHC:9719-DBcourt as to the veracity of a witness. It only means a declaration that
the witness is adverse or unfriendly to the party calling him and not
that the witness is untruthful. This was the view expressed by this
Court in Sat Paul v. Delhi Admn. [(1976) 1 SCC 727 : 1976 SCC
(Cri) 160 : AIR 1976 SC 294]
16. Thus, merely because a witness becomes hostile it would not
result in throwing out the prosecution case, but the court must see
the relative effect of his testimony. If the evidence of a hostile witness
is corroborated by other evidence, there is no legal bar to convict the
accused. Thus testimony of a hostile witness is acceptable to the
extent it is corroborated by that of a reliable witness. It is, therefore,
open to the court to consider the evidence and there is no objection
to a part of that evidence being made use of in support of the
prosecution or in support of the accused.
17. While examining the instant matter on the anvil of the aforesaid
legal position laid down by this Court in several pronouncements, we
have noticed that the support rendered by the daughter Mangibai
approving the incident should be accepted as reliable part of
evidence in spite of she being a hostile witness. The witness
Mangibai’s evidence pushes the accused with his bag to the wall and
the accused is obliged to explain because her evidence shows that the
accused was the only person in the company of the deceased soon
before the death. The defence of the accused that Nagibai’s injury
was a result of fall is ruled out by medical evidence and the details
available of the location in the panchnama of offence. The courts
below thus have rightly drawn some support from the reports of the
chemical analysis since all the articles of the victims and clothes of
the accused are found having bloodstains of human Blood Group A.
This was in view of the fact that the results of the analysis for
determination of the blood group of the victim and accused were
conclusive when blood sent in phial was analysed. Thus, the evidence
of the daughter of the deceased coupled with other material as also
evidence of other witnesses i.e. Ramesh, Khandu, Bhatu and Makhan,
provided a complete chain and the prosecution successfully proved
that the incident occurred in the manner and the place which was
alleged.”
44. Again, in case of Neeraj Dutta v. State (NCT of Delhi), (2023)
4 SCC 731, the Hon’ble Apex Court held that even if a witness is treated
18
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as “hostile” and is cross-examined, his evidence cannot be written off
altogether but must be considered with due care and circumspection and
that part of the testimony which is creditworthy must be considered and
acted upon. Relevant paragraph of this judgment is quoted herein below-
“87. Therefore, this Court cautioned that even if a witness is treated
as “hostile” and is cross-examined, his evidence cannot be written
off altogether but must be considered with due care and
circumspection and that part of the testimony which is creditworthy
must be considered and acted upon. It is for the Judge as a matter of
prudence to consider the extent of evidence which is creditworthy for
the purpose of proof of the case. In other words, the fact that a
witness has been declared “hostile” does not result in an automatic
rejection of his evidence. Even, the evidence of a “hostile witness” if
it finds corroboration from the facts of the case may be taken into
account while judging the guilt of the accused. Thus, there is no legal
bar to raise a conviction upon a “hostile witness” testimony if
corroborated by other reliable evidence.”
45. Again, Hon’ble Apex Court in the case of C. Muniappan and
Ors v. State of T. N ,(2010) 9 SCC 567, reiterated that the evidence of a
hostile witness cannot be discarded as a whole, and relevant parts thereof
which are admissible in law, can be used by the prosecution or the defence.
Paragraphs- 81 to 83 of this judgment are quoted herein below-
“81. It is settled legal proposition that:
“6. … the evidence of a prosecution witness cannot be rejected in
toto merely because the prosecution chose to treat him as hostile and
cross-examined him. The evidence of such witnesses cannot be
treated as effaced or washed off the record altogether but the same
can be accepted to the extent their version is found to be dependable
on a careful scrutiny thereof.”
(Vide Bhagwan Singh v. State of Haryana, Rabindra Kumar Dey v.
State of Orissa, Syad Akbar v. State of Karnataka and Khujji v. State
of M.P. SCC p. 635, para 6.)
19
2026:JHHC:9719-DB
82. In State of U.P. v. Ramesh Prasad Misra this Court held that (at
SCC p. 363, para 7) evidence of a hostile witness would not be totally
rejected if spoken in favour of the prosecution or the accused but
required to be subjected to close scrutiny and that portion of the
evidence which is consistent with the case of the prosecution or
defence can be relied upon. A similar view has been reiterated by this
Court in Balu Sonba Shinde v. State of Maharashtra, Gagan Kanojia
v. State of Punjab Radha Mohan Singh v. State of U., Sarvesh Narain
Shukla v. Daroga Singh and Subbu Singh v. State.
83. Thus, the law can be summarised to the effect that the evidence
of a hostile witness cannot be discarded as a whole, and relevant
parts thereof which are admissible in law, can be used by the
prosecution or the defence.”
46. Reverting back to the instant issue, ongoing to the
deposition of PW-3 Samar Murmu and PW-8 Bipin Murmu, who are
witnesses to the seizure of weapon katra (katta), this Court finds that
both these witnesses have admitted their signature on the seizure list
of recovery of weapon, which were marked as Ext.-1/3 and Ext.-1/4
respectively,
47. Further, PW-2 Dineshwar Murmu, who is witness to the seizure
of blood stain earth from the place of occurrence, has also deposed that
police had come to the place of occurrence and he had made signature on
seizure list of blood stain earth, which was marked as Ext.-1/2.
48. Hence, as per the ratio laid down by the Hon’ble Apex Court on
the issue of hostile witness, as referred in the preceding paragraph, it is
considered view of this Court that in the present case, testimony of PW-2
Dineshwar Murmu, PW-3 Samar Murmu and PW-8 Bipin Murmu, who
are seizure list witnesses either to the recovery of blood stained earth from
the place of occurrence or seizure of weapon, used in the commission of
20
2026:JHHC:9719-DB
crime, can be taken into account as a evidence, as it supports the
prosecution case to this extent.
49. Accordingly, the Issue No.(i) has been answered.
Re: Issue No.(ii)
50. Regarding the second issue whether the informant P.W.-6, who
is the sole eye witness of the case, is trustworthy and reliable, to convict
the appellant under Section 302 of IPC?
51. This Court finds from the impugned judgment that learned trial
Court had convicted the appellant relying upon the testimony of the
informant P.W.-6 Babni Manjhian, who is the sole eyewitness to the
alleged occurrence because from record as well as testimony of the P.W.6
it is evident that although the wife of the appellant was also present at the
place of occurrence but she had not been examined as witness.
52. Learned trial Court had found that the testimony of the informant
was substantiated by PW-1, PW-10 and PW-11 and further the testimony
of sole eyewitness has also been corroborated by the Medical Evidence,
i.e., Post-Mortem Report.
53. Before we analyse and appreciate the circumstances that have
weighed with the trial Court, this Court think it apposite to refer to certain
authorities pertaining to evidentiary value of the sole eyewitness.
54. It is settled proposition of law that the judgment of conviction
can be passed on the basis of the testimony of sole eyewitness but the
testimony of said witness should be trustworthy and inspire confidence in
the mind of the Court.
55. There is no legal impediment in convicting a person on the sole
testimony of a single witness. That is the logic of Section 134 of the
21
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Evidence Act, 1872. But if there are doubts about the testimony the Courts
will insist on corroboration. In fact, it is not the number, the quantity, but
the quality that is material. The time-honored principle is that evidence
has to be weighed and not counted. The test is whether the evidence has a
ring of truth, is cogent, credible and trustworthy, or otherwise.
56. The law is well settled that the judgment of conviction can be
passed also on the basis of the testimony of sole witness but the testimony
of said witness should be trustworthy as per the judgment rendered by
Hon’ble Apex Court in the case of Bipin Kumar Mondal v. State of W.B.,
(2010) 12 SCC 91, paragraphs-30 to 34 of the said judgment are being
referred hereunder as :-
“30. Shri Bagga has also submitted that there was sole testimony of Sujit
Mondal, PW 1, and the rest i.e. depositions of PW 2 to PW 8, could be
treated merely as hearsay. The same cannot be relied upon for conviction.
31. In Sunil Kumar v. State (Govt. of NCT of Delhi) this Court repelled a
similar submission observing that:
(SCC p. 371, para 9) “9. … as a general rule the court can and may act on
the testimony of a single witness provided he is wholly reliable. There is
no legal impediment in convicting a person on the sole testimony of a single
witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if
there are doubts about the testimony the courts will insist on
corroboration.”
In fact, it is not the number, the quantity, but the quality that is material.
The time-honoured principle is that evidence has to be weighed and not
counted. The test is whether the evidence has a ring of truth, is cogent,
credible and trustworthy, or otherwise.
32. In Namdeo v. State of Maharashtra this Court reiterated the similar
view observing that it is the quality and not the quantity of evidence which
is necessary for proving or disproving a fact. The legal system has laid
emphasis on value, weight and quality of evidence rather than on quantity,
multiplicity or plurality of witnesses. It is, therefore, open to a competent
court to fully and completely rely on a solitary witness and record
22
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conviction. Conversely, it may acquit the accused in spite of testimony of
several witnesses if it is not satisfied about the quality of evidence.
33. In Kunju v. State of T.N., a similar view has been reiterated placing
reliance on various earlier judgments of this Court including Jagdish
Prasad v. State of M.P. and Vadivelu Thevar v. State of Madras.
34. Thus, in view of the above, the bald contention made by Shri Bagga
that no conviction can be recorded in case of a solitary eyewitness has no
force and is negatived accordingly.”
57. Likewise, the Hon’ble Apex Court in the case of Kuriya and
another vs. State of Rajasthan, (2012) 10 SCC 433 has held as under: –
” 33. —The Court has stated the principle that, as a general rule, the Court
can and may act on the testimony of a single eyewitness provided he is
wholly reliable and base the conviction on the testimony of such sole
eyewitness. There is no legal impediment in convicting a person on the sole
testimony of a single witness.”
58. Further, the Hon’ble Apex Court in the case of Kalu @ Amit vs.
State of Haryana, (2012) 8 SCC 34 held as under:
“11. We find no infirmity in the judgment of the High Court which has
rightly affirmed the trial court’s view. It is true that the accused have
managed to win over the complainant PW 4 Karambir Yadav, but the
evidence of PW 5 Ram Chander Yadav bears out the prosecution case. It
is well settled that conviction can be based on the evidence of a sole
eyewitness if his evidence inspires confidence. This witness has
meticulously narrated the incident and supported the prosecution case. We
find him to be a reliable witness.”
59. The Hon’ble Apex Court in case of Sheelam Ramesh v. State of
A.P., (1999) 8 SCC 369 in Para -18 held as follows: –
“18. According to learned counsel for the accused appellants, though PW
3 has deposed that 10-15 persons were in the vicinity at the time of
occurrence, no independent witness was examined by the prosecution.
There is nothing on evidence to show that there was any other eyewitness
to the occurrence. Having examined all the eyewitnesses even if other
persons present nearby were not examined, the evidence of the23
2026:JHHC:9719-DBeyewitnesses cannot be discarded. Courts are concerned with quality and
not with quantity of evidence and in a criminal trial, conviction can be
based on the sole evidence of a witness if it inspires confidence.”
60. Thus, on the basis of the aforesaid discussion it is apparent that
the conviction can be based on the evidence of a sole eyewitness if his
evidence inspires confidence reason being that Courts are concerned with
quality and not with quantity of evidence and in a criminal trial as per the
statute there is no legal impediment on relying upon the testimony of sole
eyewitness.
61. At this juncture, it would be pertinent to examine the testimony
of the alleged sole eyewitness P.W.-6 Babni Manjhian, who is the
informant of the case, in the backdrop of aforesaid legal proposition.
62. Hence, this Court is proceeding to examine the evidence of the
informant P.W.-6 Babni Manjhian vis-à-vis PW-1, PW-10 and PW-11 and
the medical evidence, i.e., the post-mortem report in order to appreciate
the veracity of the prosecution case that due to the alleged assault on
Chand Lal Manjhi (deceased) made by the appellant, namely, Bindeshwar
Manjhi by Katra (Katta), it resulted in death of the deceased on the spot.
63. Informant P.W.-6 Babni Manjhian has stated in her examination
-in-chief that on the day of occurrence it was about 11 A.M., and she was
at her house and her father-in-law Chand Lal Manjhi(deceased) was taking
meal in the courtyard. In the meantime, accused Bindeshwar Murmu came
there armed with Katra(katta)[weapon used to cut he goat] and assaulted
Chand Lal Manjhi (deceased) with katra(katta) over his head and other
parts of the body due to which Chand Lal Manjhi, who was sitting and the
taking meal in the courtyard, fell down and died. She raised halla, then
24
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people assembled there and accused Bindeshwar threw the katra(katta)
and tried to flee away but the villagres caught hold him.
64. In her cross-examination, informant stated that the accused
Bindeshwar had murdered the deceased with a katra (katta) in front of her
and then she had raised alarm. After the assault, she reached near Chand
Lal Manjhi and found him dead. Informant also stated that the accused
Bindeshwar threw away the katra (katta) in the courtyard and started
running towards east. The accused was escaping by scaling the wall and
at that time she was alone in the courtyard. The said katra (katta) was
seized by the police but she cannot say that who had handed over katra
(katta) to the police. Her father-in-law Chand Lal was assaulted on his
forehead and both shoulders.
65. Further, in order to test the veracity of the testimony of the
informant, this Court has gone through to the testimony of P.W.-1, who is
the son of the deceased and PW-10 Krishna Prasad Yadav and PW-11
Janardan Prasad Jha, who are the Officer-in-Charge and Investigating
Officer of the case, respectively.
66. In the present case, in the evidence of the witnesses, it has come
that weapon namely katra(katta)[weapon used to cut he goat], used in the
alleged commission of crime of was thrown by the appellant at the
courtyard of the informant, where the murder of the deceased took place.
67. Informant in her fardbeyan as well as in her deposition had stated
that weapon used in the commission of crime katra(katta) was thrown by
the appellant.
68. In order to test the veracity of the fact that weapon used in the
commission of crime was recovered from the place of occurrence, this
25
2026:JHHC:9719-DB
Court finds that PW-1 Kesto Manjhi @ Jaleshwar Manjhi, the son of the
deceased, has deposed that katra(katta) was thrown in the courtyard and
he had handed over the aforesaid katra(katta) to the police.
69. Further, PW-10 the Officer-in-Charge, has also corroborated the
fact of receiving of weapon used in the commission of crime by deposing
that recovered weapon was handed over to him by Kesto Manjhi (PW -1,
the son of the deceased), Sona Ram (PW -4) and Basudeo Goswami (PW
-7), who are the co-villagers. PW-10 has also deposed that he had prepared
the seizure list of the recovered weapon, which is Ext.-5.
70. The aforesaid weapon katra(katta), used in the commission of
crime was produced before the learned trial Court during the trial and was
identified by the Officer-in-Charge PW-10 and the weapon katra(katta)
was marked as Material Ext.-1.
71. Hence, on the basis of the evidence of the informant PW-6, PW-
1 and PW-10 this Court comes to the conclusion that prosecution has been
able to prove that weapon used in the commission of crime, namely,
katra(katta) was thrown by the appellant at the place of occurrence and
was seized by the police as the said weapon was handed over to police by
the P.W.1 .
72. Further, blood stained soil of the deceased was also collected
from the place of occurrence and seizure list thereof was prepared to which
PW-1 Kesto Manjhi @ Jaleshwar Manjhi is the witnesses. This Court
finds that PW-1 has deposed that police had collected blood stained soil
Form on which, he had put his signature Ext.-1/1. Likewise, PW-2 had
deposed that police had come to the place of occurrence and he had
admitted his signature on the seizure list of blood stained soil.
26
2026:JHHC:9719-DB
73. Thus, from the testimony of PW-1, PW-10 and PW-11, it is
evident that these witnesses have supported the testimony of the sole
eyewitness, i.e., informant (PW-6). Further, it is evident that testimony of
these witnesses remains intact during their cross-examination.
74. Further, ongoing through the post-mortem report Ext.-2, it is
evident that doctor had found following ante-mortem injuries,
particularly, incised wound on the person of the deceased Chand Lal
Manjhi –
Incised wound:
(i) ½” x ¼” x brain deep placed vertically above inner part
of right eyebrow and forehead.
(ii) 4″ x ¾” x brain deep on right side of forehead along
hair line placed obliquely.
(iii) 6″ x 1″ x brain deep left zygomatic arch to left parietal
area.
(iv) Flap type ¾” x 4″ x skin deep on dorsum of left hand.
75. Doctor opined that death resulted from the shock due to
aforementioned homicidal sharp cutting injuries and all the cut injuries
might have been caused by katra (katta) and time elapsed since death 18 ±
6 hours.
76. The Informant has deposed that the appellant had assaulted his
father-in-law with katra (katta) and from the post-mortem report Ext.-2,
this Court finds that there are four incised wounds on the head and hand of
the deceased and all the incised wounds were caused katra (katta) weapon.
Hence, the ocular evidence of sole eyewitness, i.e, informant has been
substantiated by the medical evidence, i.e., post-mortem report Ext.-2.
77. Thus, on the basis of the discussion made hereinabove this Court
is of the view that the testimony of informant P.W.-6, as a sole eye-witness
27
2026:JHHC:9719-DB
of the case is trustworthy and reliable and testimony of the informant is
corroborated by the evidence of PW-1, P.W-10 and PW-11 and ocular
evidence of informant is also corroborated by the post-mortem report Ext.-
2 of the deceased.
78. Accordingly, the Issue No.(ii) has been answered.
79. Learned counsel for the appellant/accused has further contended
that even if entire prosecution story presumed to be correct, it is not the case
of Section 302 of IPC rather it is the case of offence punishable under Part
I of Section 304 of IPC, as accused/appellant has committed homicide not
amounting to murder and the offence committed is without any preparation
and premeditation and the alleged offence has taken place due to sudden
provocation on seeing his wife seating with the deceased.
80. With regard to the contention of the learned counsel for the
appellant that the offence would fall under Part I of Section 304 of IPC and
not under Section 302 of IPC, learned APP for the respondent submits that
case would not fall under Part I of Section 304 of IPC as it is not the case
of sudden provocation rather the alleged act has been committed with
intention and premediation.
81. This Court is now to consider that whether it can be said to be a
case under Section 302 or Section 304 Part-I of the IPC.
82. 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 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
28
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regarding applicability of the offence said to be committed under Section
302 or 304 Part-I of the Indian Penal Code.
83. Section 300 of IPC defines murder with reference to culpable
homicide defined in Section 299 of IPC. If the requirements given in Clause
1 to 4 of Section 300 of IPC are fulfilled, then, culpable homicide will
amount to murder, but the act shall not fall in exceptions given in Section
300 of IPC. If the act falls within anyone of the exceptions given in section
300 of IPC, then, it will be culpable homicide not amounting to murder.
84. 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.
85. In the case of Nankaunoo v. State of Uttar Pradesh reported in
(2016) 3 SCC 317, it has been held that 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:-
29
2026:JHHC:9719-DB
“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)
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 ( 2025:JHHC:38753-DB ) 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
30
2026:JHHC:9719-DB
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.”
86. In the case of Murlidhar Shivram Patekar and Another v. State
of Maharashtra reported in (2015) 1 SCC 694 it has been held by the
Hon’ble Apex Court at paragraph 28 and 29 which read hereunder as :-
“28. The question however still remains as to the nature of the offence
committed by the accused and whether it falls ( 2025:JHHC:38753-DB
) under Exception 4 to Section 300 IPC. In Surinder Kumar [Surinder
Kumar v. UT, Chandigarh, (1989) 2 SCC 217] , this Court has held as
under: (SCC p. 220, para 7) ―
7. To invoke this Exception four requirements must be satisfied, namely,
(i) it was a sudden fight; (ii) there was no premeditation; (iii) the act
was done in a heat of passion; and (iv) the assailant had not taken any
undue advantage or acted in a cruel manner. The cause of the quarrel
is not relevant nor is it relevant who offered the provocation or started
the assault. The number of wounds caused during the occurrence is not
a decisive factor but what is important is that the occurrence must have
been sudden and unpremeditated and the offender must have acted in a
fit of anger. Of course, the offender must not have taken any undue
advantage or acted in a cruel manner. Where, on a sudden quarrel, a
person in the heat of the moment picks up a weapon which is handy and
causes injuries, one of which proves fatal, he would be entitled to the
benefit of this Exception provided he has not acted cruelly.
29. Further, in Arumugam v. State [(2008) 15 SCC 590 at p. 595 :
(2009) 3 SCC (Cri) 1130] , in support of the proposition of law that
under what circumstances Exception 4 to Section 300 IPC can be
invoked if death is caused, it has been explained as under: (SCC p. 596,
para9)31
2026:JHHC:9719-DB
9. … „18. The help of Exception 4 can be invoked if death is caused (a)
without premeditation; (b) in a sudden fight;(c) without the offender’s
having taken undue advantage or acted in a cruel or unusual manner;
and (d) the fight must have been with the person killed. To bring a case
within Exception 4 all the ingredients mentioned in it must be found. It
is to be noted that the “fight” occurring in Exception 4 to Section
300 IPC is not defined in the Penal Code, 1860. It takes two to make a
fight. Heat of passion requires that there must be no time for the
passions to cool down and in this case, the parties had worked
themselves into a fury on account of the verbal altercation in the (
2025:JHHC:38753-DB ) beginning. A fight is a combat between two
and more persons whether with or without weapons. It is not possible
to enunciate any general rule as to what shall be deemed to be a sudden
quarrel. It is a question of fact and whether a quarrel is sudden or not
must necessarily depend upon the proved facts of each case. For the
application of Exception 4, it is not sufficient to show that there was a
sudden quarrel and there was no premeditation. It must further be
shown that the offender has not taken undue advantage or acted in cruel
or unusual manner. The expression “undue advantage” as used in the
provision means “unfair advantage”.”
87. In the case of Surain Singh v. State of Punjab, reported in (2017)
5 SCC 796 at paragraph 13 the Hon’ble Apex Court has held as under: –
“13. Exception 4 to Section 300 IPC applies in the absence of any
premeditation. This is very clear from the wordings of the Exception
itself. The Exception contemplates that the sudden fight shall start upon
the heat of passion on a sudden quarrel. The Fourth Exception
to Section 300 IPC covers acts done in a sudden fight. The said
Exception deals with a case of provocation not covered by the First
Exception, after which its place would have been more appropriate. The
Exception is founded upon the same principle, for in both there is
absence of premeditation. But, while in the case of Exception 1 there is
total deprivation of self- control, in case of Exception 4, there is only
that heat of passion which clouds men’s sober reason and urges them
to deeds which they would not otherwise do. There is provocation in
Exception 4 as in Exception 1, but the injury done is not the direct
consequence of that provocation. In fact, Exception 4 deals with cases
in which notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way the32
2026:JHHC:9719-DBquarrel may have originated, yet the subsequent conduct of both parties
puts them in respect of guilt upon an equal footing. A “sudden fight”
implies mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral provocation, nor
could in such cases the whole blame be placed on one side. For if it
were so, the Exception more appropriately applicable would be
Exception 1. There is no previous deliberation or determination to fight.
A fight suddenly takes place, for which both parties are more or less to
be blamed. It may be that one of them starts it, but if the other had not
aggravated it by his own conduct it would not have taken the serious
turn it did. There is then mutual provocation and aggravation, and it is
difficult to apportion the share of blame which attaches to each fighter.
88. 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
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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 ( 2025:JHHC:38753-DB )
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
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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 unlaw 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 mens rea. 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.
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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.
89. In the backdrop of the aforesaid settled position of law reverting
back to the present case.
90. From the factual aspect it is evident that it is not a case of sudden
provocation and the case would not fall under any of the exception
under Section 300 of IPC. It has come in the testimony of sole eyewitness
that with a motive and intention to cause death, the accused attacked
deceased persons with katta on his head. The nature of injury and blow on
the head of the deceased persons indicates the intention of the accused.
91. It has further come on evidence that on the suspicion that his wife was
having illicit relationship with deceased and on seeing his wife seated
with deceased the accused has gone inside the room and come with katta
and attacked with katta on the head of the deceased, therefore it is a case
of murder and rightly trial Court convicted the accused and sentenced
him for life imprisonment under Section 302 of IPC.
92. Thus, the contention of the accused/appellant that he had caused
death of deceased, but committed homicide not amounting to murder, as
the same is without any intention and without any preparation, at the spur
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of the moment, is untenable and on the other hand, the chain of events
would lead to a definite conclusion that the accused committed offence with
intention, motive and preparation. Culpabale homicide will not amount to
murder if it is committed without premeditation in a sudden fight and
provocation. In the instant case, there is no sudden fight and provocation as
contended. On the other hand, the evidence on record makes it clear that it
was premeditated with an intention to cause death. If there was no intention
the accused would not have kept katta in his hand. Having regard to the
number of injuries inflicted on the deceased person the contention that there
was no intention cannot be accepted.
93. It is settled position of law, as discussed hereinabove, that to fall
within Part I or Part II of Section 304 of IPC, one should satisfy that the
death was under any of the exceptions and circumstances mentioned
under Section 300 of IPC. If death is caused and the case is covered by any
one of the exceptions of Section 300 IPC, then such culpable homicide shall
not amount to murder. The injuries on the deceased person would reveal
that accused caused the death of deceased with intention and attacking and
assaulting with katta on the head discloses a person’s intention knowing
fully well that it would cause death of a person. Motive to assault deceased
was his suspicion that decease was having illicit relationship with his wife.
Sequence of events spoken by eyewitnesses and corroborated by evidence
of PW.1, and, the doctor would lead us to the definite conclusion that the
accused has committed culpable homicide amounting to murder with
motive and intention.
94. Learned counsel for the appellant has further submitted that
prosecution has not been able to prove the case beyond reasonable doubt as
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weapon used in the alleged commission of crime namely katra (katta) and
blood stained earth were not sent for chemical analysis. Learned counsel
also submitted that investigating officer had not mentioned the hour of
recording of statement of particular witnesses in the case diary and hence,
raises suspicion in the prosecution case. Learned counsel for the appellant
further submitted that learned trial Court has failed to take into
consideration that in the seizure list it was not mentioned that the alleged
weapon katra (katta) was blood stained.
95. Admittedly, the aforesaid instances are the indicative of
perfunctory investigation but it is settled position of law that sterling
evidence of the prosecution witness cannot thrown away due to laches in
the investigation.
96. At this juncture it would be pertinent to see the judgments
rendered by the Hon’ble Apex Court on defective investigation. The law is
well settled that in cases of defective investigation; the Court has to be
circumspect in evaluating the evidence but it would not be right in
acquitting an accused person solely on account of the defect.
97. In case of Karnel Singh v. State of M.P., (1995) 5 SCC 518 , the
Hon’ble Apex Court has held that in cases of defective investigation, the
Court has to be circumspect in evaluating the evidence but it would not be
right in acquitting an accused person solely on account of the defect; to do
so would tantamount to playing into the hands of the investigating officer
if the investigation is designedly defective.Paragraph-5 of this judgment is
quoted herein below :
“5. Notwithstanding our unhappiness regarding the nature of
investigation, we have to consider whether the evidence on record, even
on strict scrutiny, establishes the guilt. In cases of defective38
2026:JHHC:9719-DBinvestigation the court has to be circumspect in evaluating the evidence
but it would not be right in acquitting an accused person solely on
account of the defect; to do so would tantamount to playing into the
hands of the investigating officer if the investigation is designedly
defective. Any investigating officer, in fairness to the prosecutrix as well
as the accused, would have recorded the statements of the two witnesses
and would have drawn up a proper seizure-memo in regard to the
‘chaddi’. That is the reason why we have said that the investigation was
slipshod and defective.”
98. Further, in the case of Ram Bihari Yadav v. State of Bihar,
(1998) 4 SCC 517, the Hon’ble Apex Court has laid down that acts or
omissions of the officers of the prosecution should not be taken in favour
of the accused, for that would amount to giving premium for the wrongs
of the prosecution designedly committed to favour the appellant.
Paragraph-13 of this judgment is quoted herein below:
“13. Before parting with this case we consider it appropriate to observe
that though the prosecution has to prove the case against the accused
in the manner stated by it and that any act or omission on the part of
the prosecution giving rise to any reasonable doubt would go in favour
of the accused, yet in a case like the present one where the record shows
that investigating officers created a mess by bringing on record Exh.
5/4 and GD Entry 517 and have exhibited remiss and/or deliberately
omitted to do what they ought to have done to bail out the appellant
who was a member of the police force or for any extraneous reason, the
interest of justice demands that such acts or omissions of the officers of
the prosecution should not be taken in favour of the accused, for that
would amount to giving premium for the wrongs of the prosecution
designedly committed to favour the appellant. In such cases, the story
of the prosecution will have to be examined dehors such omissions and
contaminated conduct of the officials otherwise the mischief which was
deliberately done would be perpetuated and justice would be denied to
the complainant party and this would obviously shake the confidence of
the people not merely in the law-enforcing agency but also in the
administration of justice.”
99. Again, in case of State of Karnataka v. K. Yarappa Reddy,
(1999) 8 SCC 715, the Hon’ble Apex Court laid down that investigation
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is not the solitary area for judicial scrutiny in a criminal trial, the
conclusion of the Court in the case cannot be allowed to depend solely on
the probity of investigation. It is settled that even if the investigation is
illegal or even suspicious the rest of the evidence must be scrutinized
independently of the impact of it. Relevant paragraph of this judgment is
quoted herein below-
“19. But can the above finding (that the station house diary is not
genuine) have any inevitable bearing on the other evidence in this case?
If the other evidence, on scrutiny, is found credible and acceptable,
should the Court be influenced by the machinations demonstrated by
the investigating officer in conducting investigation or in preparing the
records so unscrupulously? It can be a guiding principle that as
investigation is not the solitary area for judicial scrutiny in a criminal
trial, the conclusion of the court in the case cannot be allowed to depend
solely on the probity of investigation. It is well-nigh settled that even if
the investigation is illegal or even suspicious the rest of the evidence
must be scrutinized independently of the impact of it. Otherwise the
criminal trial will plummet to the level of the investigating officers
ruling the roost. The court must have predominance and pre-eminence
in criminal trials over the action taken by investigating officers.
Criminal justice should not be made a casualty for the wrongs
committed by the investigating officers in the case. In other words, if
the court is convinced that the testimony of a witness to the occurrence
is true the court is free to act on it albeit the investigating officer’s
suspicious role in the case.”
100. In the case of C. Muniappan v. State of T.N., (2010) 9 SCC 567,
the Hon’ble Apex Court has laid down that there may be highly defective
investigation in a case. However, it is to be examined as to whether there
is any lapse by the Investigating officer and whether due to such lapse any
benefit should be given to the accused. The law on this issue is well settled
that the defect in the investigation by itself cannot be a ground for
acquittal. Paragraph-55 of this judgment is quoted herein below-
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“55. There may be highly defective investigation in a case. However, it
is to be examined as to whether there is any lapse by the IO and whether
due to such lapse any benefit should be given to the accused. The law
on this issue is well settled that the defect in the investigation by itself
cannot be a ground for acquittal. If primacy is given to such designed
or negligent investigations or to the omissions or lapses by perfunctory
investigation, the faith and confidence of the people in the criminal
justice administration would be eroded. Where there has been
negligence on the part of the investigating agency or omissions, etc.
which resulted in defective investigation, there is a legal obligation on
the part of the court to examine the prosecution evidence dehors such
lapses, carefully, to find out whether the said evidence is reliable or not
and to what extent it is reliable and as to whether such lapses affected
the object of finding out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial. The conclusion of
the trial in the case cannot be allowed to depend solely on the probity
of investigation. (Vide Chandrakant Luxman v. State of
Maharashtra [(1974) 3 SCC 626 : 1974 SCC (Cri) 116 : AIR 1974 SC
220] , Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC
(Cri) 977] , Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 :
1998 SCC (Cri) 1085 : AIR 1998 SC 1850] , Paras Yadav v. State of
Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] , State of
Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri)
61 : AIR 2000 SC 185] , Amar Singh v. Balwinder Singh [(2003) 2 SCC
518 : 2003 SCC (Cri) 641] , Allarakha K. Mansuri v. State of
Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] and Ram Bali v. State
of U.P. [(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] )”
101. Again, in case of Ashok Kumar Singh Chandel v. State of U.P.,
(2022) 20 SCC 114, the Hon’ble Apex Court laid down that this Court has
observed in a number of cases that defective investigation by the
investigating authorities by itself does not vitiate the case of the
prosecution when there are credible eyewitness testimonies as well as
other compelling pieces of evidence. Paragraph-156 and 157 of this
judgment are quoted herein below-
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156. Fax is not part of the investigation. Even assuming that there is
some defect in the investigation on this count, it will have no bearing
on the prosecution case. This Court has observed in a number of cases
that defective investigation by the investigating authorities by itself
does not vitiate the case of the prosecution when there are credible
eyewitness testimonies as well as other compelling pieces of evidence.
In Karnel Singh v. State of M.P. [Karnel Singh v. State of M.P.,
(1995) 5 SCC 518 : 1995 SCC (Cri) 977] this Court held that : (SCC
p. 521, para 5)
“5. … In cases of defective investigation the court has to be
circumspect in evaluating the evidence but it would not be right in
acquitting an accused person solely on account of the defect; to do so
would tantamount to playing into the hands of the investigating officer
if the investigation is designedly defective.”
(emphasis supplied)
157. Similarly in C. Muniappan v. State of T.N. [C. Muniappan v. State
of T.N., (2010) 9 SCC 567 : (2010) 3 SCC (Cri) 1402] this Court held
: (SCC p. 589, para 55)
“55. There may be highly defective investigation in a case. However, it
is to be examined as to whether there is any lapse by the IO and whether
due to such lapse any benefit should be given to the accused. The law
on this issue is well settled that the defect in the investigation by itself
cannot be a ground for acquittal. If primacy is given to such designed
or negligent investigations or to the omissions or lapses by perfunctory
investigation, the faith and confidence of the people in the criminal
justice administration would be eroded. Where there has been
negligence on the part of the investigating agency or omissions, etc.
which resulted in defective investigation, there is a legal obligation on
the part of the court to examine the prosecution evidence dehors such
lapses, carefully, to find out whether the said evidence is reliable or not
and to what extent it is reliable and as to whether such lapses affected
the object of finding out the truth. Therefore, the investigation is not the
solitary area for judicial scrutiny in a criminal trial.”
(emphasis supplied)
102. In the backdrop of the aforesaid settled position of law, this Court
is of the considered view that, since in the instant case there is credible
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evidence in form of sole eyewitness, i.e., P.W.6 is available who was
present at the place of occurrence, i.e., courtyard and had witnessed the
assault committed by the appellant with katra (katta) resulting into death
of Chand Lal Manjhi at the spot itself and the injury caused on the body
of the deceased has also been substantiated by the postmortem report
Ext.-2. Therefore, as per the ratio rendered by the Hon’ble Apex Court in
the case of Ashok Kumar Singh Chandel v. State of U.P.,(supra) the
benefit of perfunctory investigation cannot be extended to the present
appellant.
103. This Court, having discussed the factual aspect and legal position
and considering the finding recorded by the learned trial Court, is of the
view that the prosecution has been able to prove the charge under section
302 of IPC beyond all shadow of doubts against the present appellant,
therefore, order impugned requires no interference by this Court.
104. Accordingly, impugned judgment of conviction dated
29.04.1998 and the order of sentence dated 04.05.1998 passed by the
learned Sessions Judge, Dhanbad in Sessions Trial No. 10 of 1997,
requires no interference by this Court.
105. Hence, the instant appeal stands dismissed.
106. Consequent upon dismissal of the appeal, the appellant, since, is
enjoying the suspension of sentence vide order dated 26.08.1998 passed
by this Court in the present appeal directing to release him during
pendency of the appeal, the bail bond of the appellant is hereby cancelled
and the appellant is directed to surrender before the learned trial Court for
serving out the sentence passed against him.
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107. Needless to say, that if the appellant will not surrender, the
learned trial Court will take endeavors for securing custody of the
appellant to serve out the sentence as inflicted by the learned trial Court.
108. Pending I.As, if any, stands disposed of.
109. Let lower Court records be transmitted to the Court concerned,
forthwith.
(Sujit Narayan Prasad, J.)
I Agree.
(Deepak Roshan, J.)
(Deepak Roshan, J.)
Sudhir
Jharkhand High Court,
Dated:06/04/2026
AFR
Uploaded on 07/04/2026.
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