Jharkhand High Court
Mantu Pandey @ Swetabh Kumar Pandey vs The State Of Jharkhand on 7 July, 2026
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
[2026:JHHC:20001-DB]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
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Cr. Appeal (DB) No. 398 of 2018
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(Against the Judgment of conviction dated 19.01.2018 and order of
sentence dated 24.01.2018 passed by learned Additional Sessions
Judge-VIII, Dhanbad in Sessions Trial No. 379 of 2012)
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Mantu Pandey @ Swetabh Kumar Pandey, aged about 27 years, son of
Rajgir Prasad Pandey, resident of Bhuli, New B Type, Qr. No.21,
Bhuli, P.S.-Bank More, P.O. & District-Dhanbad.
... ... Appellant
Versus
The State of Jharkhand ... ... Respondent
PRESENT
HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
.....
For the Appellant : Mr. Aniket Jaiswal,
AC to Mrs. Jasvinder Mazumdar, Advocate
For the Resp.-State : Mr. Pankaj Kumr Mishra, APP
.....
C.A.V./Reserved on 03.07.2026 Pronounced on:07th July, 2026
Per Sujit Narayan Prasad, J.
1. The instant appeal, under Section 374 (2) of the Code of Criminal
Procedure, has been preferred against the Judgment of conviction dated
19.01.2018 and order of sentence dated 24.01.2018 passed by learned
Additional Sessions Judge-VIII, Dhanbad in Sessions Trial No. 379 of
2012, arising out of Dhanbad (Bhuli) P.S. Case No.185 of 2012
corresponding to G.R. Case No.709 of 2012, whereby and whereunder,
the appellant has been convicted under section 302,323 and 341 of IPC
and sentenced to undergo imprisonment for life along with fine of Rs.
10,000/- u/s 302 IPC and in default of payment of fine, the appellant
has been directed to undergo simple imprisonment for six months.
Since the appellant had been sentenced for the offence u/s 302 IPC, no
separate sentence had been awarded u/s 323 and 341 IPC.
Factual Matrix
2. The prosecution story in brief as per the fardbayan of Rampati Ravidas
(PW-4) recorded by S.I. Sri B.R.Bhagat on 24.02.2012 at about 00:30
hours is that informant was known to Pawan Chauhan s/o Kamla Devi.
Pawan Chauhan had gone to his native village at Bihar about one
month before the occurrence and Pawan Chauhan had asked informant
to take care of his mother Kamla Devi (deceased) and had also
requested him to sleep at his house. Since then, informant used to sleep
outside the house of Kamla Devi.
3. Informant further stated that on 23.02.2012 at about 10:00 O’clock in
the night, accused Mantu Pandey (appellant herein) came to the house
of Kamla Devi and awoke him and asked him to awoke Kamla Devi as
he needed liquor. Kamla Devi used to sell pouch of liquor at her house.
He refused to awoke the old lady, then the accused Mantu Pandey went
away. At about 11:30 pm, in the night, accused Mantu Pandey again
came in drunken state and started assaulting him and asked him to
awoke the old lady Kamla Devi and thereafter, he started knocking the
door of Kamla Devi.
4. It has been alleged that thereafter Kamla Devi came out of her room,
then accused Mantu Pandey started assaulting her with bamboo strip
kept there and demanded daru (liquor) from her. When Kamla Devi
refused to give liquor, then accused assaulted and injured her and
pushed her to the ground. Informant informed the nearby people but
they did not come to save Kamla Devi.
5. Then, he went towards the road and informed Tiger Mobile Force
regarding the occurrence, then they came to the house of Kamla Devi.
When the Tiger Mobile Force came to the house of Kamla Devi,
accused was sitting over Kamla Devi and assaulting her. Police
personnels pulled the accused and made inquiry from him. Injured
Kamla Devi was sent to PMCH, Dhanbad for treatment. Informant
alleged that due to non-supply of liquor, accused Mantu Pandey had
assaulted Kamla Devi and injured her.
6. On the basis of the fardbayan of the informant, Dhanbad (Bhuli) P.S.
Case No. 185/2012 dated 24.02.2012 was registered u/s 448, 341, 323,
324, 325, 307, 504 and 506 IPC against Mantu Pandey @ Swetabh Kr.
Pandey. Subsequently 302 IPC was added vide order dated 01.03.2012
by the learned C.J.M., Dhanbad.
Page | 2
7. After investigation, police submitted charge-sheet against the accused
Mantu Pandey u/s 341, 323, 324, 325, 302, 504 and 506 IPC.
8. Cognizance of the offences were taken and the case being exclusively
triable by the court of sessions was committed to the court of sessions.
Charges were framed against the appellant under section 302,323 and
341of IPC.
9. Accordingly, the trial proceeded and the appellant was found guilty for
the offence under Sections 302,323 and 341 of IPC and sentenced
aforesaid.
10. The aforesaid judgment of conviction and order of sentence is under
challenge in this appeal.
Submission of the learned counsel for the appellant:
11. Learned counsel for the appellant has taken the following grounds for
interfering with the finding recorded by the learned trial court in the
impugned judgment:
(i) It has been submitted that even accepting the prosecution version
to be correct then also the ingredients of Section 300 of IPC to
commit murder with intention is not available.
(ii) It has been submitted that the learned trial court has not taken
into consideration the fact that the informant, P.W.-4 had turned
hostile as also the P.W.-2 and P.W.-3 and no independent
witness has supported the case of the prosecution except the
police witnesses.
(iii) It has also been submitted that even if the case of the prosecution
will be accepted to be true then also it should have been taken
into consideration by the learned trial court that the appellant
assaulted Kamla Devi in the state of intoxication and there was
no intention to cause death. This fact itself clarifies that there
was no pre-meditation of mind in committing murder of the
deceased. Therefore, at best, it can be said to be a case of
exception to Section 300 of IPC and hence, the appellant at the
best can be convicted under Section 304 Part II of IPC.
Page | 3
(iv) Learned counsel for the appellant has submitted that the
appellant since has already remained in custody for almost
twelve years, as such, the judgment of conviction may be
modified by modifying it to that of Section 304 Part (I) or 304
Part (II) of IPC.
Submission of the learned Additional Public Prosecutor for the state:
12. On the other hand, Mr. Pankaj Kumar Mishra, learned Additional
Public Prosecutor has raised the following grounds:
(i) It has been submitted that that the prosecution has successfully
proved the charges levelled against the appellant. P.W.-5 is a
member of the Tiger Mobile who saw the accused assaulting the
deceased, Kamla Devi. Thereafter, Tiger Mobile Force had
informed the patrolling party, then the patrolling party came to
the place of occurrence and took the injured lady to the hospital
for treatment. In the meanwhile, P.W.-5 along with other
members of the Tiger Mobile stayed at the place of occurrence
with the apprehended accused.
(ii) It has also been submitted that the evidence of PW-5 and PW-7
is fully corroborated by the evidence of PW-1 (Doctor).
(iii) The appellant has killed with intention to commit murder of the
deceased, otherwise there was no occasion for the appellant to
assault the deceased with bamboo strip.
13. Learned Additional Public Prosecution, based upon the aforesaid
grounds, has submitted that the impugned judgment of conviction
therefore is based upon the testimony of the witnesses and if on that
consideration, the learned trial court has come to the conclusion that the
present case is of commission of murder with intention to kill, the same
cannot be said to suffer from an error.
Analysis:
14. This Court has heard the learned counsel for the parties, appreciated the
rival submissions of the parties as referred hereinabove and the finding
recorded by the learned trial court in the impugned order.
Page | 4
15. Learned trial Court, based upon the testimonies of witnesses, has
passed the judgment of conviction and has convicted the appellant
under Sections 302,323 and 341 of IPC and sentenced him as referred
hereinabove.
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 the record that in order to substantiate the case, the
prosecution has altogether examined 7 witnesses out of whom PW-4
Rampati Ravidas, is the informant of the case; PW-1 is Dr. Swapan
Kumar Sarak; PW-2 Md. Kalam and PW-3 Raju Chauhan, both are
seizure list witness; PW-5 is Constable Abinash Kumar Singh; PW-6
Shanta Prasad, is the Investigating Officer of the case and PW-7 is
Baburam Bhagat.
18. P.W.-1 is the doctor who has stated that on 26.02.2012, he was posted
as Tutor in the department of FMT, PMCH, Dhanbad and at 1:45 p.m.,
he conducted postmortem examination on the dead body of the
deceased Kamla Devi aged about 48 years, female W/o late Ramadhin
Yadav. Doctor found following antemortem injuries on the person of
the deceased:
“1. Stitched wound: –
i) 6″ long with 20 stitches of over frontal region of head to right eye
brow. C shaped.
ii) 5″ long with 8 stitches over right lateral part of eye brow to Zygoma.
On cutting the above stitches the margins of the wound found irregular
but clean cut and contused.
iii) 1/2″ long with 5 stitches with over left auricle, margin of the wound
found clean cut but contused.
2. Abrasion: –
i) 4″ X 2″ over right forehead and zygoma.
ii) 1-1/2″ X 1″ over back of left middle fore arm. Both found healing in
type. Both eyes swollen and black.
3. On dissection: – Ecchymosis with blood clots found beneath scalp all
over the head. Skull bone and Meninges intact and subdural
hemorrhage found over both sides of brain. Ribs No. 2 to 6 on right and
2 to 3 on left found fractured on front. Both lungs pale. Right ventricle
of heart found full and left empty. Stomach contains 150 CC of partially
digested pasty fluid with no particular smell. Bladder and Uterus
normal and empty and all other internal organs found pale.
4. Time elapsed since death: – 18 hours to 24 hours.
Page | 5
5. Cause of death: – Death was caused due to coma hemorrhage and
shock as a result of injuries mentioned above. External Injury No.-1
caused by hard and sharp cutting substance.
The postmortem report has been marked Ext. 1.
In cross-examination Doctor stated that the injuries mentioned
in the postmortem report must have been earlier examined and
treated.”
19. P.W.-2 Md. Kalam, is seizure list witness. PW-2 has stated in his
evidence that in the evening of 24.02.2012, police had seized bamboo
strip which was stained with blood. He has identified his signature on
the seizure list which was marked Ext.-2. Kamla Devi was being taken
to hospital in injured condition by his son, but she died on the way.
PW-2 was declared hostile by the prosecution.
20. P.W.-3 Raju Chauhan, is another seizure list witness. He has identified
his signature on the seizure list which was marked Ext.-2/1. He has
stated that he does not know what was seized by the police.PW-3 was
declared hostile by the prosecution.
21. P.W.-4 Rampati Ravidas, is the informant of the case. Informant had
stated in his evidence that about two years ago, he saw Kamla Devi in
injured condition at her residence, at Budhni Hatia More. Kamla Devi
died while she was being taken to the hospital. He has further stated
that he does not know who had assaulted Kamla Devi. Informant was
declared hostile by the prosecution.
In his cross-examination by the prosecution, informant stated
that he had seen the body of Kamla Devi. Police had not taken his
statement and police only took his signature on a blank paper.
22. P.W.-5 is Constable Abinash Kumar Singh. He has stated in his
evidence that on 23.02.2012, he was posted in Tiger Mobile of Bhuli
O.P. On that day in the night, four persons were on patrolling duty on
two vehicles and they were going from Shakti market towards Budhni
Hatia. In the meantime, one person came running on the road and
informed them that one person is assaulting a lady. They went there and
saw that accused Mantu was assaulting a lady and he was leaning on
the lady. They apprehended the accused and informed the patrolling
team on a mobile, then patrolling vehicle came there and injured was
Page | 6
sent to hospital for treatment. PW-5 further stated that there was blood
on the hands of the accused and the accused was in intoxicated
condition. The injured lady used to sale pouch (type of liquor) and they
came to know that name of the lady is Kamla. He has identified the
accused in the court.
In cross-examination, PW-5 stated that he had informed the
police that the name of the apprehended person is Mantu. He knew
Mantu prior to the occurrence. There was blood on the hand of Mantu.
He had earlier seen accused Mantu roaming on road in drunken
condition.
23. P.W.-6 Shanta Prasad, is the Investigating Officer of the case.
Investigating Officer has stated in his evidence that on 24.02.2012, he
was posted as Officer-in-charge of Bhuli police station. On that day, in
the night at 3:00 O’clock, Baburam Bhagat, SI gave him fardbayan of
Rampati Ravidas outside the emergency ward of PMCH, Dhanbad.
After going through the fardbayan, he himself took up the investigation
of the case and started investigation. He has proved the endorsement of
forwarding on the fardbayan which is marked Ext.-4. He has also
proved the endorsement of registration which is in the writing of Shashi
Bhushan Rajak and the same is marked Ext.-5. He has proved the
seizure list which is marked Ext.-6. Thereafter, he took the re-statement
of the informant Rampati Ravidas and visited the place of occurrence.
On the place of occurrence, constables of the Tiger Mobile were found
with the accused Mantu Pandey. He took the statement of the accused
at the place of occurrence and arrested the accused. The memo of arrest
is marked Ext.-7. The bamboo strip used in the occurrence was seized
in the presence of witnesses Md. Kalam and Raju Chauhan and seizure
list was prepared by S.I. Baburam Bhagat.
24. Investigating Officer has described the place of occurrence in detail
which is tiled house of Kamla Devi. On 26.02.2012 at about 7:00
O’clock, informant Rampati Ravidas informed that he was taking the
injured Kamla Devi to RIMS, Ranchi from PMCH, Dhanbad for better
treatment, but Kamla Devi died on the way. Thereafter, Rampati
Ravidas brought the dead body of Kamla Devi to Bhuli O.P. Inquest
Page | 7
report of deceased Kamla Devi was prepared at the police station which
is marked Ext.-8. The dead body challan has been marked Ext.-9. The
dead body of the deceased was sent to PMCH, Dhanbad for
postmortem. Thereafter, he made request to the C.J.M. Dhanbad, to add
section 302 IPC. He completed investigation and submitted charge-
sheet vide chargesheet no. 339/2012 dated 25.4.2012 u/s 341, 323, 324,
325, 448, 302, 504 & 506 IPC. Formal FIR was been marked Ext.-10.
He has further stated that PW-2, PW3 & PW-4 had fully supported the
prosecution case before him in their statement u/s 161 Cr.P.C. He has
identified the accused Mantu Pandey in the court.
25. P.W.-7 is Baburam Bhagat, who has stated that on 24.02.2012, he was
posted as ASI in Bhuli Police Station and on that day in the night, they
were on patrolling duty. In the meantime, he received information that
one lady had been assaulted and injured near Budhni Hatia. On receipt
of the said information, he reached Budhni Hatia and saw the lady in
injured condition whose name was Kamla Devi. Tiger Mobile person
had also reached there. He immediately took the lady to PMCH,
Dhanbad for treatment and thereafter, he came on the place of
occurrence. He recorded the fardbayan of the informant Rampati
Ravidas. The said fardbayan is in his writing and signature which bears
the signature of the informant Rampati Ravidas, the same is marked
Ext.-11. Tiger Mobile personnels had apprehended the accused Mantu
Pandey and he was arrested. He has identified the accused Mantu
Pandey in the court.
In his cross-examination, PW-7 stated it took 45 minutes for
admission of the injured at PMCH, Dhanbad and during this period he
did not record the statement of the injured. When he returned to the
place of occurrence after admitting the injured in PMCH, the Tiger
Mobile personnels were present there and they had apprehended the
accused and, on their information, accused was arrested.
26. This Court, in order to appreciate the submissions advanced on behalf
of appellant with respect to the culpability of the appellant for
commission of offence under Section 302 or under Section 304 Part-I
or Part-II of the Indian Penal Code vis-Ã -vis the evidences adduced on
Page | 8
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.
27. In the case of Nankaunoo v. State of Uttar Pradesh reported in (2016)
3 SCC 317 it has been held that the intention is different from motive.
It is the intention with which the act is done that makes a difference in
arriving at a conclusion whether the offence is culpable homicide or
murder, for ready reference paragraph 11 is being quoted and referred
hereunder as :-
“11. Intention is different from motive. It is the intention with which the
act is done that makes a difference in arriving at a conclusion whether
the offence is culpable homicide or murder. The third clause of Section
300 IPC consists of two parts. Under the first part it must be proved that
there was an intention to inflict the injury that is present and under the
second part it must be proved that the injury was sufficient in the
ordinary course of nature to cause death. Considering clause Thirdly of
Section 300 IPC and reiterating the principles stated in Virsa Singh case
[Virsa Singh v. State of Punjab, AIR 1958 SC 465], in Jai Prakash v.
State (Delhi Admn.) [Jai Prakash v. State (Delhi Admn.), (1991) 2 SCC
32] ,para 12, this Court held as under: (SCC p. 41) “12. Referring to
these observations, Division Bench of this Court in Jagrup Singh case
[Jagrup Singh v. State of Haryana, (1981) 3 SCC 616], observed thus:
(SCC p. 620, para 7) „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‟ andPage | 9
„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.”
28. In the case of State of Andhra Pradesh v. Rayavarapu Punnayya,
(1976) 4 SCC 382, the Hon’ble Apex Court, while clarifying the
distinction between section 299 and 300 of the Indian Penal Code and
their consequences, held as under: —
“12. In the scheme of the Penal Code, “culpable homicide” is genus and
“murder‟ is species. All “murder” is “culpable homicide‟ but not vice-
versa. Speaking generally, “culpable homicide not amounting to murder.
For the purpose of fixing punishment, proportionate to the gravity of this
generic offence, the Code practically recognises three degrees of
culpable homicide. The first is what may be called ‘culpable homicide of
the first degree’. This is the greatest form of culpable homicide, which is
defined in Section 300 as ‘murder’. The second may be termed as
‘culpable homicide of the second degree’. This is punishable under the
first part of Section 304. Then, there is ‘culpable homicide of the third
degree’. This is the lowest type of culpable homicide and the punishment
provided for it is, also, the lowest among “12. In the scheme of the Penal
Code, „culpable homicide‟ is genus and „murder‟ is species. All
„murder‟ is „culpable homicide‟ but not vice-versa. Speaking
generally, „culpable homicide not amounting to murder‟.For the
purpose of fixing punishment, proportionate to the gravity of this generic
offence, the Code practically recognises three degrees of culpable
homicide. The first is what may be called ‘culpable homicide of the first
degree’. This is the greatest form of culpable homicide, which is defined
in Section 300 as ‘murder’. The second may be termed as ‘culpable
homicide of the second degree’. This is punishable under the first part of
Section 304. Then, there is ‘culpable homicide of the third degree’. This
is the lowest type of culpable homicide and the punishment provided for
it is, also, the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the second
part of Section 304.
29. 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 300Page | 10
of the IPC, the act will be murder even though only a single injury was
caused. —
(2) Even when the intention or knowledge of the accused may fall within
Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which
would otherwise be murder, will be taken out of the purview of murder, if
the accused’s case attracts any one of the five exceptions enumerated in
that section. In the event of the case falling within any of those
exceptions, the offence would be culpable homicide not amounting to
murder, falling within Part 1 of Section 304 of the IPC, if the case of the
accused is such as to fall within Clauses (1) to (3) of Section 300 of the
IPC. It would be offence under Part II of Section 304 if the case is such
as to fall within Clause (4) of Section 300 of the IPC. Again, the intention
or knowledge of the accused may be such that only 2nd or 3rd part of
Section 299 of the IPC, may be attracted but not any of the clauses of
Section 300 of the IPC. In that situation also, the offence would be
culpable homicide not amounting to murder under Section 304 of the
IPC. It would be an offence under Part I of that section, if the case fall
within 2nd part of Section 299, while it would be an offence under Part II
of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within
the first two clauses of cases of culpable homicide as described in
Section 299 of the IPC it is punishable under the first part of Section 304.
If, however, it falls within the third clause, it is punishable under the
second part of Section 304. In effect, therefore, the first part of this
section would apply when there is “guilty intention,‟ whereas the second
part would apply when there is no such intention, but there is “guilty
knowledge‟.
(4) Even if single injury is inflicted, if that particular injury was intended,
and objectively that injury was sufficient in the ordinary course of nature
to cause death, the requirements of Clause 3rdly to Section 300 of the
IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases : (i)
when the case falls under one or the other of the clauses of Section 300,
but it is covered by one of the exceptions to that Section,
(ii) when the injury caused is not of the higher degree of likelihood
which is covered by the expression “sufficient in the ordinary course of
nature to cause death‟ but is of a lower degree of likelihood which is
generally spoken of as an injury “likely to cause death‟ and the case
does not fall under Clause (2) of Section 300 of the IPC,
(iii) when the act is done with the knowledge that death is likely to ensue
but without intention to cause death or an injury likely to cause death. To
put it more succinctly, the difference between the two parts of Section
304 of the IPC is that under the first part, the crime of murder is first
established and the accused is then given the benefit of one of the
exceptions to Section 300 of the IPC, while under the second part, the
crime of murder is never established at all. Therefore, for the purpose of
holding an accused guilty of the offence punishable under the second
part of Section 304 of the IPC, the accused need not bring his case within
one of the exceptions to Section 300 of the IPC.
(6) The word “likely‟ means probably and it is distinguished from more
“possibly‟. When chances of happening are even or greater than its not
happening, we may say that the thing will „probably happen‟. In
reaching the conclusion, the court has to place itself in the situation of
Page | 11
the accused and then judge whether the accused had the knowledge that
by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC)
and murder (Section 300 of the IPC) has always to be carefully borne in
mind while dealing with a charge under Section 302 of the IPC. Under
the category of unlawful homicides, both, the cases of culpable homicide
amounting to murder and those not amounting to murder would fall.
Culpable homicide is not murder when the case is brought within the five
exceptions to Section 300 of the IPC. But, even though none of the said
five exceptions are pleaded or prima facie established on the evidence on
record, the prosecution must still be required under the law to bring the
case under any of the four clauses of Section 300 of the IPC to sustain
the charge of murder. If the prosecution fails to discharge this onus in
establishing any one of the four clauses of Section 300 of the IPC,
namely, 1stly to 4thly, the charge of murder would not be made out and
the case may be one of culpable homicide not amounting to murder as
described under Section 299 of the IPC.
(8) The court must address itself to the question of mensrea. If Clause
thirdly of Section 300 is to be applied, the assailant must intend the
particular injury inflicted on the deceased. This ingredient could rarely
be proved by direct evidence. Inevitably, it is a matter of inference to be
drawn from the proved circumstances of the case. The court must
necessarily have regard to the nature of the weapon used, part of the
body injured, extent of the injury, degree of force used causing the injury,
the manner of attack, the circumstances preceding and attendant on the
attack.
(9) Intention to kill is not the only intention that makes a culpable
homicide a murder. The intention to cause injury or injuries sufficient in
the ordinary cause of nature to cause death also makes a culpable
homicide a murder if death has actually been caused and intention to
cause such injury or injuries is to be inferred from the act or acts
resulting in the injury or injuries.
(10) When single injury inflicted by the accused results in the death of
the victim, no inference, as a general principle, can be drawn that the
accused did not have the intention to cause the death or that particular
injury which resulted in the death of the victim. Whether an accused had
the required guilty intention or not, is a question of fact which has to be
determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to
cause death of any person or to cause bodily injury to him and the
intended injury is sufficient in the ordinary course of nature to cause
death, then, even if he inflicts a single injury which results in the death of
the victim, the offence squarely falls under Clause thirdly of Section 300
of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention
or guilty knowledge in a case where only a single injury is inflicted by
him and that injury is sufficient in the ordinary course of nature to cause
death, the fact that the act is done without premeditation in a sudden
fight or quarrel, or that the circumstances justify that the injury was
accidental or unintentional, or that he only intended a simple injury,
would lead to the inference of guilty knowledge, and the offence would be
one under Section 304 Part II of the IPC.
67. 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
Page | 12
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.
68. 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, 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.
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.”
30. In the backdrop of the aforesaid discussion of proposition of law as
well as factual aspects of the instant case, this Court is to consider
following issues:
(i) Whether the prosecution case been adversely affected by the
informant (PW-4) and the seizure list witnesses (PW-2 and
PW-3) turning hostile?
(ii) Whether the material as has come in course of trial is
sufficient to attract the ingredients of offence committed
under Section 302 of the Penal Code, 1860? Or
(iii) Whether the case is said to be covered under the exception to
Section 300 of the Penal Code, 1860? Or
(iv) Whether on the basis of factual aspect, the case will come
under the purview of Part 2 of Section 304 IPC ?or
(v) Whether the appellant is entitled for acquittal in absence of
cogent evidences?
Re: Issue No.(i)
31. In the present case since the informant (P.W.-4) and the seizure list
witnesses P.W.-2 and P.W.-3 have turned hostile, hence, it would be
Page | 13
pertinent to see 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.
32. In case of Attar Singh v. State of Maharashtra, (2013) 11 SCC 719,
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 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. Paragraph-14 to 17 of this judgment is 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
Page | 14
to cross-examine his own witness does not amount to adjudication by the
court 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.”
33. Again, in case of Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC
731 Hon’ble Apex Court held 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. 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.
Page | 15
Thus, there is no legal bar to raise a conviction upon a “hostile witness”
testimony if corroborated by other reliable evidence.”
34. 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. Paragraph 81 to 83 of this judgment is 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 Haryana43, Rabindra Kumar Dey v.
State of Orissa44, Syad Akbar v. State of Karnataka45 and Khujji v. State
of M.P.46, SCC p. 635, para 6.)
82 In State of U.P. v. Ramesh Prasad Misra47 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 Maharashtra48, Gagan Kanojia v. State of
Punjab49, Radha Mohan Singh v. State of U.P.50, Sarvesh Narain
Shukla v. Daroga Singh51 and Subbu Singh v. State52.
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.”
35. Thus, from the aforesaid discussion it is evident that 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 defense.
36. In the present case, although the Informant, Rampati Ravidas (P.W.-4),
and the two seizure-list witnesses, P.W.2 and P.W.3, were declared
hostile by the prosecution, their testimony cannot be discarded in its
entirety. The portions of their evidence which are admissible in law
may still be relied upon either by the prosecution or the defence.
Consequently, the prosecution case cannot be said to have been
adversely affected merely by reason of the informant (P.W.-4) and the
seizure-list witnesses (P.W.2 and P.W.3) turning hostile.
Page | 16
37. Further the P.W.5 has claimed that he saw the alleged occurrence and
has specifically deposed that he saw that Mantu was assaulting the lady.
Accused Mantu was leaning on the lady. He apprehended the accused
and informed the patrolling team on a mobile, then patrolling vehicle
came there from which the injured was sent to PMCH for treatment.
38. Therefore, in the circumstances of the present case, even though the
informant (P.W.-4) has been declared hostile, such hostility does not
erode the foundation of the prosecution case.
39. Accordingly, issue no.(i) has been answered.
Re : Issue No.(ii) to (v)
40. Since, all these issue issues are inextricably interlinked, the same are
being discussed and decided hereinbelow together.
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 3rd condition contemplates knowledge
or the likelihood of the death of the person.
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 304-part I IPC as it uses the expression that death is
caused with the intention of causing death or of causing such bodily
injury as is likely to cause death, where intention is dominant factor.
Page | 17
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.
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:
“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.
33. 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.”
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 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.
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.
Page | 18
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.
47. The Hon’ble Apex Court, in Keshub Mahindra v. State of M.P.
reported in (1996) 6 SCC 129 has been pleased to hold as under
paragraph 20 which reads hereunder as :-
“20. — We shall first deal with the charges framed against the accused
concerned under the main provisions of Section 304 Part II IPC. A look
at Section 304 Part II shows that the accused concerned can be charged
under that provision for an offence of culpable homicide not amounting
to murder and when being so charged if it is alleged that the act of the
accused concerned is done with the knowledge that it is likely to cause
death but without any intention to cause death or to cause such bodily
injury as is likely to cause death the charged offences would fall under
Section 304 Part II. However before any charge under Section 304 Part
II can be framed, the material on record must at least prima facie show
that the accused is guilty of culpable homicide and the act allegedly
committed by him must amount to culpable homicide. However, if the
material relied upon for framing such a charge against the accused
concerned falls short of even prima facie indicating that the accused
appeared to be guilty of an offence of culpable homicide Section 304
Part I or Part II would get out of the picture. In this connection we have
to keep in view Section 299 of the Penal Code, 1860 which defines
culpable homicide. It lays down that: “Whoever causes death by doing
an act with the intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the
offence of culpable homicide.” Consequently the material relied upon by
the prosecution for framing a charge under Section 304 Part II must at
least prima facie indicate that the accused had done an act which had
caused death with at least such a knowledge that he was by such act
likely to cause death. —”
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
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
Page | 19
likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.
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 :-
“(a) If a person is suddenly provoked by a third party and loses his self-
control, and as a result of which causes the death of another person or
the person who provoked him, it won’t amount to murder subject to
proviso as provided.
(b) When a person under the right of private defence causes the death of
the person against whom he has exercised this right without any
premeditation and intention.
(c) If a public servant, while discharging his duty and having lawful
intention, causes the death of a person.
(d) If it is committed without premeditation in a sudden fight in the heat
of passion upon a sudden quarrel and without the offender having taken
undue advantage or acted in a cruel or unusual manner. 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.”
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.
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.
52. This Court, upon due consideration of the principles enunciated by the
Hon’ble Supreme Court, particularly in State of Andhra Pradesh v.
Rayavarapu Punnayya (supra) and Anbazhagan (supra), wherein the
distinction between Section 299 IPC, Section 300 IPC and Section 304
IPC has been clearly delineated, now proceeds to appreciate the
evidence available on record in the present case.
Page | 20
53. Reverting to the facts of the present case. In present case homicidal
death of Kamala Devi is admitted and found corroborated from the
post-mortem report of the Doctor (P.W.-1).
54. It is pertinent to reiterate that out of the seven witnesses examined, the
Informant, Rampati Ravidas (P.W.-4), was declared hostile by the
prosecution. Furthermore, the seizure-list witnesses, P.W.2 and P.W.3,
were also declared hostile.
55. But it is evident from record that the case of the prosecution has fully
been corroborated by the P.W.-5 who has stated in his evidence that on
23.02.2012, he was posted in Tiger Mobile of Bhuli O.P. They were
going from Shakti market towards Budhni Hatia. One person came
running on the road and informed them that one person is assaulting a
lady. He went there and saw that Mantu was assaulting the lady.
Accused Mantu was leaning on the lady (deceased).
56. The question arises herein that whether the testimony of police
personnel is be fit for reliance in order to prove the charges against the
appellant.
57. The question that arises for consideration is whether the testimony of
the police personnel can be regarded as reliable and sufficient to
establish the charges against the appellant.
58. It is settled position of law that there is no absolute rule of law that a
conviction cannot be based on police testimony. Police officers are
competent witnesses, and their statements must be treated with the
same weight as civilian witnesses and the testimony of a police officer
cannot be discarded simply because they belong to the police
department.
59. However, police officers are often considered “interested witnesses”
(since they are invested in the success of the prosecution), the courts
apply a “rule of prudence”. This means the court will subject their
testimony to a higher level of scrutiny.
60. In the case of Tahir v. State (Delhi), (1996) 3 SCC 338, the Hon’ble
Apex Court has categorically observed that there is no rule of law or
evidence which lays down that conviction cannot be recorded on the
Page | 21
evidence of the police officials, if found reliable, unless corroborated
by some independent evidence. For ready reference the relevant
paragraph of the aforesaid judgment is being quoted as under:
“6. Mr D.D. Thakur, the learned Senior Counsel appearing for the
appellant, submitted that PW 4 to PW 7 on whose evidence the conviction
has been recorded were all police officials and in the absence of any
independent witness to corroborate them, it was not safe to rely upon
their testimony to sustain the conviction of the appellant. We cannot
agree. In our opinion no infirmity attaches to the testimony of police
officials, merely because they belong to the police force and there is no
rule of law or evidence which lays down that conviction cannot be
recorded on the evidence of the police officials, if found reliable, unless
corroborated by some independent evidence. The Rule of Prudence,
however, only requires a more careful scrutiny of their evidence, since
they can be said to be interested in the result of the case projected by
them. Where the evidence of the police officials, after careful scrutiny,
inspires confidence and is found to be trustworthy and reliable, it can
form the basis of conviction and the absence of some independent
witness of the locality to lend corroboration to their evidence, does not
in any way affect the creditworthiness of the prosecution case.”
61. The Hon’ble Apex Court has reiterated the same view in the case of
Karamjit Singh v. State (Delhi Admn.), (2003) 5 SCC 291 wherein it
has been observed that the testimony of police personnel should be
treated in the same manner as testimony of any other witness and there
is no principle of law that without corroboration by independent
witnesses their testimony cannot be relied upon. The relevant paragraph
of the aforesaid judgment is being quoted as under:
“8. Shri Sinha, learned Senior Counsel for the appellant, has vehemently
urged that all the witnesses of recovery examined by the prosecution are
police personnel and in the absence of any public witness, their testimony
alone should not be held sufficient for sustaining the conviction of the
appellant. In our opinion the contention raised is too broadly stated and
cannot be accepted. The testimony of police personnel should be treated
in the same manner as testimony of any other witness and there is no
principle of law that without corroboration by independent witnesses
their testimony cannot be relied upon. The presumption that a person
acts honestly applies as much in favour of a police personnel as of other
persons and it is not a proper judicial approach to distrust and suspect
them without good grounds. It will all depend upon the facts and
circumstances of each case and no principle of general application can
be laid down. PW 11 Pratap Singh has clearly stated in the opening part
of his examination-in-chief that ACP Shakti Singh asked some public
witnesses to accompany them but they showed their unwillingness. PW
10 Rajinder Prasad, SI has given similar statement and has deposed that
despite their best efforts, no one from the public was willing to join the
raiding party due to the fear of the terrorists. Exactly similar statement
has been given by PW 9 R.D. Pandey. We should not forget that the
incident took place in November 1990, when terrorism was at its peak in
Punjab and neighbouring areas. The ground realities cannot be lost sight
of that even in normal circumstances members of the public are very
reluctant to accompany a police party which is going to arrest a criminalPage | 22
or is embarking upon search of some premises. At the time when
terrorism was at its peak, it is quite natural for members of the public to
have avoided getting involved in a police operation for search or arrest
of a person having links with terrorists. It is noteworthy that during the
course of the cross-examination of the witness the defence did not even
give any suggestion as to why they were falsely deposing against the
appellant. There is absolutely no material or evidence on record to show
that the prosecution witnesses had any reason to falsely implicate the
appellant who was none else but a colleague of theirs being a member of
the same police force. Therefore, the contention raised by Shri Sinha that
on account of non-examination of a public witness, the testimony of the
prosecution witnesses who are police personnel should not be relied
upon, has hardly any substance and cannot be accepted.”
62. Herein in the instant case P.W.5 has specifically stated that he saw that
the accused/appellant was assaulting the lady and was leaning on the
lady. He further testified that he apprehended the accused and informed
the patrolling team on a mobile, then patrolling vehicle came there from
which the injured was sent to PMCH for treatment.
63. Further, the informant in his examination-in-chief, however has been
declared hostile had stated that he had seen Kamala Devi(deceased) in
the injured condition.
64. Further, the Doctor (P.W.-1) who had conducted post-mortem
examination, had found 20 stiches over frontal region of head to right
eye brow and 8 stitches over right lateral part of eye brow of the
deceased.
65. In cross-examination also Doctor (P.W.-1) had stated that the injuries
mentioned in the postmortem report must have been earlier examined
and treated.
66. Thus, from the evidence of P.W.5, duly supported by P.W.1 and P.W.4,
it is apparent that the present appellant/accused did assault the deceased
lady. The question, however, that arises for determination is whether, at
the time of such assault, the accused was acting with premeditation or
possessed the requisite intention to cause the death of the deceased.
67. It has come in the FIR that the accused/appellant, being in a state of
intoxication, assaulted the victim lady with a bamboo strip. Further,
from the contents of the FIR, it is evident that when the deceased lady
declined to serve liquor, the accused/appellant inflicted the assault. It is,
therefore, apparent from the factual matrix that the alleged offence was
committed on a trivial issue arising out of the non-supply of liquor.
Page | 23
68. Further from the evidence of both informant (P.W.-4) and the Doctor
(P.W.-1), it is evident that deceased had not died immediately at the
place of occurrence and deceased died during the treatment at hospital
after two days of the occurrence.
69. Further, as per the prosecution case, deceased was assaulted by bamboo
strip, which, finds support from the seizure list witness Md. Kalam
(P.W.-2), who had stated in his examination-in-chief that in the evening
of 24.02.2012, police had seized bamboo strip which was stained with
blood.
70. Hence, from the seizure list Ext.-6 and testimony of seizure list witness
Md. Kalam (P.W.-2), this Court comes to the conclusion that bamboo
strip was used by the appellant in assaulting the deceased.
71. So, from the forgoing discussion, this Court is of the considered view
that the appellant had assaulted the deceased with bamboo strip. If there
had been any meditation or having requisite intention to cause the death
of the deceased, the appellant, could have killed the deceased at the
spot itself, however, that is not the case here, as the deceased
succumbed to injuries later in the hospital during her treatment, which
finds support from the evidence of the Doctor (P.W.-1), wherein Doctor
had found stiches on the person of the deceased, during the post-
mortem examination.
72. This Court is of the view that the bamboo strip, which has been used to
assault the deceased, was lying at the door of the deceased which also
clarifies that the accused came with no premeditation or was having
any intention to kill the deceased otherwise he would have come with
arm(s) or any hard blunt substance(s) to assault the deceased.
73. From the aforesaid, it appears that there was no premeditation on the
part of the appellant herein to cause the alleged act and only when
deceased did not give liquor to the appellant, deceased was assaulted
with bamboo strip which resulted in death of the deceased at the
hospital.
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74. Therefore, from the genesis and manner of the offence, it can be
inferred that there was no intention on the part of the appellant herein to
kill the deceased.
75. In the backdrop of the aforesaid discussion, the judicial
pronouncements, and the testimonies of the prosecution witnesses, and
upon due consideration of the facts and circumstances of the present
case, this Court is of the considered view that the assault committed by
the appellant, Mantu Pandey @ Swetabh Kumar Pandey, was neither
premeditated nor intentional.
76. Therefore, this Court is of the considered view that the present case
squarely falls under Section 304 part-II of the IPC.
77. Accordingly, issue no.(ii) to (v) have been answered.
Conclusion
78. Accordingly, on the basis of discussion made hereinabove this Court is
of the view that the judgment impugned convicting the appellant Mantu
Pandey @ Swetabh Kumar Pandey under Section 302 IPC needs to be
interfered with by modifying it to that of conviction of the appellant
under Section 304 Part-II of the Indian Penal Code.
79. Consequently, the impugned judgment of conviction passed by the
learned Trial Court stands modified, and the appellant herein is held
guilty under Section 304 Part II of the Indian Penal Code.
80. Insofar as the conviction recorded under Sections 323 and 341 of the
Indian Penal Code is concerned, the same calls for no interference and
is hereby sustained and upheld.
81. On the question of sentence, it is to be noted that the conviction of the
appellant has been modified to Section 304 Part II of the Indian Penal
Code, which prescribes punishment for a term of ten years. From the
record, however, it is evident that the appellant has already undergone
custody for a period of approximately twelve years.
82. Consequently, the appellant, Mantu Pandey @ Swetabh Kumar Pandey,
who is presently in custody, is directed to be released forthwith from
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jail custody, provided he is not required to be detained in connection
with any other case.
83. Accordingly, the instant appeal stands dismissed with the aforesaid
modification in conviction and sentence.
84. Let the Lower Court Records be sent back to the Court concerned
forthwith, along with the copy of this Judgment.
85. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
I agree,
(Pradeep Kumar Srivastava, J.) (Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi
Dated: 07/07/2026
Saurabh / A.F.R.
Uploaded on 08.07.2026
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