Patna High Court

Arjun Yadav @ Arjun Rai vs The State Of Bihar on 5 May, 2025

Author:
Rajeev Ranjan Prasad

Bench:
Rajeev Ranjan Prasad
,
Ashok Kumar Pandey

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.203 of 2023
Arising Out of PS. Case No.-54 Year-2009 Thana- TARAIYA District- Saran
======================================================
Arjun Yadav @ Arjun Rai, s/o late Kameshwar Ray r/o village- Sitalpatti,
P.S.- Taraiya, Distt- Saran at Chapra.
... ... Appellant
Versus
1. The State of Bihar
2. Baijnath Singh, S/o Late Ram Chandra Singh, R/o village- Dumari, P.S.-
Taraiya, Distt- Saran at Chapra.
... ... Respondents
======================================================
with
CRIMINAL APPEAL (SJ) No. 119 of 2023
Arising Out of PS. Case No.-54 Year-2009 Thana- TARAIYA District- Saran
======================================================
Baijnath Singh, S/O Late Ramchandra Singh, Resident of village- Dumari,
P.O.- Dumari, P.S.- Taraiya, District- Saran.
... ... Appellant
Versus
The State of Bihar
... ... Respondent
======================================================
Appearance :
(In CRIMINAL APPEAL (DB) No. 203 of 2023)
For the Appellant/s : Ms. Nikita Mittal, Advocate
For the State : Mr. Mukeshwar Dayal, APP
For the Respondent No.2: Mr. Ansul, Sr. Advocate
(In CRIMINAL APPEAL (SJ) No. 119 of 2023)
For the Appellant/s : Mr. Ansul, Sr. Advocate
For the State : Mr. Mukeshwar Dayal, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
CAV JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)

Date : 05-05-2025

These two appeals have been filed against the

judgment dated 22.11.2022 and the order dated 24.11.2022

passed in Sessions Trial No. 675 of 2009, arising out of Taraiya

P.S. Case No. 54 of 2009 (hereinafter referred to as the
Patna High Court CR. APP (DB) No.203 of 2023 dt.05-05-2025
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'impugned judgment and order' respectively) by learned

Additional District and Sessions Judge-IXth, Saran at Chapra

(hereinafter referred to as the 'learned trial court').

2. By the impugned judgment, the learned trial court

held respondent no. 2 (Cr. Appeal (DB) No. 203 of 2023) guilty

of the offence punishable under Section 304 Part II of the
Indian

Penal Code
(in short '
IPC
'). The respondent no. 2 has been

sentenced to undergo five years rigorous imprisonment for the

offence under
Section 304
Part II of the
IPC
with a fine of Rs.

20,000/- . In default of payment of fine, he has been ordered to

undergo three months simple imprisonment. All sentences shall

run concurrently. The learned trial court has, however, acquitted

the respondent no. 2 of the charge under
Section 302
IPC.

3. The appellant in Cr. Appeal (DB) No. 203 of 2023

is the informant of the case who is aggrieved by the impugned

judgment whereby the Respondent No. 2 has been acquitted of

the charge under
Section 302
IPC and has been convicted for a

lesser offence i.e. culpable homicide not amounting to murder.

4. Cr. Appeal (SJ) No. 119 of 2023 has been

preferred by the respondent no. 2 of Cr. Appeal (DB) No. 203 of

2023 for setting aside the impugned judgment of conviction and

sentence.
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5. With the consent of the parties, both the appeals

have been heard together and are being disposed of by this

common judgment.

Prosecution case

6. The informant, namely, Kameshwar Rai (since

deceased/victim) in his fardbeyan recorded on 04.06.2009 at

about 08:00 PM at Referral Hospital, Taraiya in emergency

ward alleged that on the same day at about 06:30 PM, he was

returning his house along with his son Arjun Rai from village

Andharwari after grinding flour. When he reached near the

house of one Rajendra Rai, in the meantime, a motorcycle came

from the side of Taraiya and stopped near the house of Rajendra

Rai and one Baijnath Singh got down from the motorcycle and

with an intention to kill the informant assaulted him by dagger

twice in his ribcage and shoulder due to which he became

unconscious and fell down. Thereafter, he tried to assault the

son of the informant who fled away to save his life. It is further

alleged that the said Baijnath Singh fled away after leaving the

motorcycle. It is further alleged that with the help of the

villagers the informant was taken to Taraiya Hospital where his

treatment is going on. The reason of the alleged incident is the

previous enmity.
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7. On the basis of the aforesaid fardbeyan of the

informant, a First Information Report being Taraiya P.S. Case

No. 54/2009 dated 04.06.2009 has been registered under

Sections 341
,
and
IPC against the sole accused Baijnath

Singh. After completion of investigation, police submitted a

charge-sheet bearing number 77/2009 dated 25.09.2009 under

Sections 341
,
,
and
IPC against Baijnath Singh.

Upon submission of charge-sheet, the learned Magistrate took

cognizance vide order dated 02.10.2009/05.10.2009. The case

was committed to the court of Sessions on 05.12.2009 where

Sessions Trial No. 675 of 2009 was registered. Vide order dated

21.12.2009
charges were framed under
Section 302
IPC.

8. During trial, the prosecution produced as many as

ten witnesses and proved some documentary evidences. The full

description of the witnesses and the documents proved on behalf

of the prosecution are being provided hereunder for a ready

reference:-

List of Prosecution Witnesses

PW-1 Binda Raut
PW-2 Baharan Rai
PW-3 Arjun Rai (son of the informant)
PW-4 Surendra Rai
PW-5 Sabha Rai
PW-6 Sachidanand Singh
PW-7 Dr. Muneshwar Prasad Singh
PW-8 Shri Bhagwan Rai
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PW-9 Dr. Surendra Prasad Singh
PW-10 Nali Narayan Choudhary

List of Prosecution Exhibits

Exhibit '1' Signature of Arjun Rai on the
fardbeyan
Exhibit '1/1' Signature of Kameshwar Rai on
Fardbeyan
Exhibit '2' Entire fardbeyan
Exhibit '3' Signature of Dr. M.P. Singh on
Postmortem report
Exhibit '4' Injury report of Kameshwar Rai
Exhibit '5' Inquest report of Kameshwar
Rai

9. After the prosecution evidence was closed, the

statement of the accused was recorded under
Section 313

Cr.P.C.

10. In defence, no oral evidence has been led but

some documentary evidences have been brought on record as

defence evidence.

List of Exhibits on behalf of Defence

Exhibit-A Letter No.7778 sent by Superintendent,
PMCH to the court
Exhibit-B Letter No.6143 dated 17.04.2015 sent by
Superintendent, PMCH to the court
Exhibit-C Bed head ticket of the deceased
Exhibit-D Protest Petition dated 29.11.2010 in Taraiya

P.S. Case No.17 of 2010

Exhibit-E Report of A.C.M.O., Sadar Hospital, Chapra
regarding the treatment of deceased
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Findings of the Learned Trial Court

11. Learned trial court after analyzing the evidences on

the record found that the accused-respondent no.2 was charged

for the offence under
Section 302
IPC and the informant

-appellant in his fardbeyan alleged that the accused had

inflicted two knife blows which finds support from the injury

report (Exhibit-4) issued by the doctor of Primary Health

Centre. The prosecution witnesses have deposed that there was

argument between the informant and the accused on the point of

money for tree of Gullar whereafter the accused caused injury

to the informant and thereafter he was treated at Taraiya

hospital from where he was referred to Sadar hospital, Chapra

where x-ray of injured was done but he was not admitted there.

From the Exhibit-E brought by the defence learned trial court

found that injured was treated at Ishwar Dayal Hospital, Patna

and he returned home after getting cured. Thereafter, after 40

days of the occurrence, on 14.07.2009 the injured was admitted

in PMCH.

12. Learned trial court has held that the informant died

after 50 days of the occurrence. The Medical Officer has in his

report given different reasons which are self-contradictory.

According to the learned court, the act committed by the
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accused does not satisfy the essential ingredients of
Section 300

IPC. In these circumstances, the learned court acquitted the

accused of the offence under
Section 302
IPC.

13. Having taken the aforementioned views, the learned

trial court held that the accused had assaulted the informant

(since deceased) by a dagger as a result whereof the informant

died after 50 days. The learned trial court held that this act of

the accused would come in the category of culpable homicide

as defined under
Section 299
IPC. The learned trial court

clearly held that the act of assault by dagger clearly indicates

that the accused had within his knowledge that the act which he

was committing can cause death of the informant. The learned

trial court has recorded that from the post mortem report

(Exhibit '3') issued by the PMCH, it appears that the death of

the informant has occurred because of the infection and

formation of pus in the wound of the stomach.

14. The learned trial court, however, went to add that

from the oral and documentary evidences of the prosecution, it

is evident that the informant (deceased) had not got his

treatment properly done. Referring to Explanation 2 of
Section
of the IPC, the learned trial court held that if appropriate

and skilled treatment would have been provided to the
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informant (deceased), the death could have been avoided. The

learned trial court has clearly recorded that the informant (the

deceased) died due to the injury caused by the accused. For

these reasons, the learned trial court has held the accused

(respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023) guilty of

the offence under
Section 304
Part II of the
IPC
. The learned

trial court has awarded a sentence of five years rigorous

imprisonment to the accused with a fine of Rs.20,000/-. In case

of non-payment of fine, the convict shall undergo an additional

imprisonment of three months. The learned trial court has given

benefit of adjustments of the period already spent in

incarceration in terms of
Section 428
CrPC (now
Section 468
of

the Bhartiya Nagrik Suraksha Sanhita (BNSS)).

15. On the point of compensation to the victim under

Section 357
A(3), the learned trial court has recommended the

case of the victim to the District Legal Service Authority, Saran,

Chapra under the Bihar Victim Compensation Scheme, 2014 for

providing appropriate compensation.

Submissions on behalf of the Appellant
in Cr. Appeal (DB) No. 203 of 2023

16. Learned counsel for the appellant in Cr. Appeal

(DB) No. 203 of 2023 has submitted that despite there being

clinching evidence on the record that the respondent no. 2
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intentionally caused the injuries which ultimately led to the

death of the informant, the learned trial court has acquitted

respondent no. 2 on a completely irrelevant and extraneous

consideration by taking a view that if proper and skilled

treatment would have been provided to the informant then his

life could have been saved.

17. Learned counsel submits that the learned trial court

has found in paragraph '21' of the impugned judgment that the

accused had assaulted the informant by dagger and caused

injury. The learned trial court has referred the cause of death

shown in the PMCH report wherein it is said to be caused due

to heart attack. The learned trial court has noticed the post

mortem report of Sadar Hospital, Chapra and the opinion of the

Doctor saying that the death of deceased was caused due to

infection and pus formation. The learned trial court has got

influenced only because the death has taken place due to

infection and pus formation in the wound caused in the stomach

of the deceased.

18. It is submitted that the learned trial court

misconstrued
Section 299
IPC and thereby took a view that

from the evidence led by the prosecution, it appears that the

deceased had not received proper treatment and had he been
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properly treated then his death could have been avoided. It is

submitted that such observations of the learned trial court is

completely irrelevant and contrary to Explanation 2 to
Section
IPC.

19. It is further submitted that in this case the date,

time, place and manner of occurrence have been duly proved by

the prosecution. The trial court has accepted the prosecution

story but instead of convicting the accused under
Section 302

IPC, convicted him under Part II of
Section 304
IPC and

awarded a meagre sentence of only five years rigorous

imprisonment with a fine of Rs.20,000/-.

20. It is submitted that the learned trial court has

grossly erred in appreciation of evidence. There is a complete

misunderstanding of Explanation 2 of
Section 299
IPC on the

part of the learned trial court and the Exceptions to
Section 300

IPC. The learned trial court has not recorded any finding that

the accused had no intention to cause death of the informant.

21. It is submitted that the act of the accused is covered

under the definition of
Section 300
and there was no reason for

the learned trial court to put it within the category of culpable

homicide not amounting to murder and then convict the accused

under Part II of
Section 304
IPC.

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Submissions on behalf of Respondent No. 2

in Cr. Appeal (DB) No. 203 of 2023

22. Mr. Ansul, learned Senior Counsel representing

respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023 and

simultaneously arguing the appeal of respondent no. 2 being Cr.

Appeal (SJ) No. 119 of 2023, though initially took a plea that in

this case the place of occurrence has not been duly proved by

the prosecution and the presence of the son of the informant,

namely, Arjun Yadav at the place of occurrence and as an eye

witness cannot be believed but in course of his submissions

when he was confronted with the averments made in the protest

petition (Exhibit 'D') filed by the accused in the court of

learned Chief Judicial Magistrate, Chapra, Saran vide C 3689 of

2010 (Exhibit 'D') in which the accused has himself stated

about the occurrence which took place on 04.06.2009 at 04:00

PM in Village Andharwari and has shown the presence of Sabha

Rai, Pintu, Baharan Rai, Sunil Kumar Rai out of whom Baharan

Rai (PW-2) and Sabha Rai (PW-5) have deposed as prosecution

witnesses and then the fardbeyan of Kameshwar Rai which is

the basis of the FIR in which he has clearly stated about the

presence of his son Arun Rai with him at the time of

occurrence, learned Senior Counsel for the respondent no. 2 has
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not pressed this plea.

23. Learned Senior Counsel submits that he would

confine his submissions to the extent that in this case the

alleged injury caused by the respondent no. 2 is not the

proximate cause of death. Learned Senior Counsel has relied

upon a Division Bench judgment of the Hon'ble Madhya

Pradesh High Court in
Imran Khan versus State of Madhya

Pradesh
reported in 1994 MPLJ 862 to submit that an act is

said to be a cause of death when the death result from the act

itself and from some consequences necessarily or naturally

flowing from the act and reasonably contemplated as its result.

It is his submission in this case the chain of consequences stood

broken as the informant (deceased) was admitted in PMCH

after 40 days of the occurrence and he ultimately died as a

result of the infection suffered and the pus formed in the

wound.

24. It is his submission that there was an unexpected

complication which would be in the nature of a new mischief

and the relation of cause and effect or the causal connection is

too remote. It is his submission that the proximate cause of

death being the infection and formation of pus in the wound,

the respondent no. 2 would not be liable to be convicted under
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Section 302
IPC. It is his submission that in this case the report

of PMCH as enclosed with the Letter No. 6143 dated

17.04.2015 (Exhibit 'B') shows that the Doctor noticed on

admission of the informant that it was an old case of stab injury

for which exploratory laprotomy was done in Ishwar Dayal

Hospital where colostomy was done. The Doctor noticed loose

watery stool coming out from colostomy wound and wound

dehiscence. The informant (deceased) remained admitted in

PMCH for about 10 days. He was declared dead clinically on

the basis of the findings: pulse-absent; BP- not recordable; heart

S./breath S.- not audible; pupil- B/L dilated and fixed; mode of

death- cardio pulm. Arrest.

Submissions of the State
in Cr. Appeal (SJ) No. 119 of 2023

25. Learned Additional Public Prosecutor for the State

has opposed Cr. Appeal (SJ) No. 119 of 2023. It is submitted

that the challenge to the impugned judgment of conviction has

no plausible basis and it is liable to fail. The learned trial court

has rightly appreciated the entire evidence on the record and

having found that the date, time, place and manner of

occurrence have been duly proved by the prosecution,

convicted the accused for the offence of culpable homicide not

amounting to murder and sentenced him to undergo a rigorous
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imprisonment of five years with a fine of Rs.20,000/-.

Consideration

26. We have heard learned counsel for the appellant in

both the appeals simultaneously and learned Additional Public

Prosecutor for the State.

27. As recorded hereinabove, in course of hearing of

the appeals, learned Senior Counsel for the convict-appellant in

Cr. Appeal (SJ) No. 119 of 2023 has given up his submissions

with regard to the place of occurrence and the credibility of the

eye witness as also finding of the learned trial court that the

cause of death in this case is the injury caused by the accused

but the sole contention of learned Senior Counsel for the said

appellant while arguing on his behalf as respondent no. 2 in Cr.

Appeal (DB) No. 203 of 2023 is that the death of the informant

(deceased) has resulted due to the new mischief in form of

infection and pus in the wound, therefore, the learned trial court

has not committed any error in convicting the respondent no. 2

only for the culpable homicide not amounting to murder and

punished him under Part II of
Section 304
of the IPC.

28. Notwithstanding the fact that learned Senior

Counsel for the appellant in Cr. Appeal (SJ) No. 119 of 2023

and respondent no. 2 in Cr. Appeal (DB) No. 203 of 2023 has
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confined his submissions, this Court takes it as its' duty to go

through the entire evidences on the record, re-appreciate it and

satisfy itself that the prosecution has duly proved its' case

beyond all reasonable doubt.

29. We have examined the evidences available on the

record. Binda Raut (PW-1) is an eye witness of the occurrence.

He is a resident of village Andharwari. He has stated that he

was in his house when Kameshwar Rai (the deceased) was

coming after grinding flour and Baijnath Singh also reached

there. His son was also with him. This witness has not stated

any quarrel having taken place in front of his house. He has

stated that Baijnath Singh inflicted dagger in right side on to the

stomach of Kameshwar Rai. Intenstine had come out and

profused bleeding took place. Kameshwar Rai was taken to

hospital at Chapra and from Chapra he was taken to Patna. In

his cross-examination, this witness has stated that the

occurrence had taken place in front of house of Ram Pravesh

Rai. He knows Rajendra Rai and Ram Pravesh Rai who are full

brothers and their houses are within a distance of one meter. He

has stated that Kameshwar Rai came home after one and half/

two months of treatment from hospital but after some

complications occurred in the wound, he again went to the
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hospital. This witness has not been suggested by defence that

there was any sudden quarrel between the informant and the

respondent no. 2.

30. Baharan Rai (PW-2) is another villager of village

Andharwari. He has stated that he heard hulla and when he

reached there then he saw that some altercation was taking

place between Kameshwar Rai and Baijnath Singh, on that,

Baijnath Singh took out a dagger and assaulted Kameshwar Rai

which caused injury at three places. People assembled then they

took Kameshwar Rai to hospital. In his cross-examination, he

has stated that the occurrence has taken place in front of the

house of Ram Pravesh Rai. His house is situated at a distance of

ten laggis from the house of Ram Pravesh Rai. He has

explained that one laggi is equal to ten hands and his house is

situated at a distance of hundred hands. Again, from the

evidence of this witness, it appears that the Respondent No. 2

was armed with dagger and while having some altercation in

form of oral shoutings, he took out the dagger and assaulted the

informant. This witness has seen the occurrence.

31. Arjun Rai (PW-3) is the son of the deceased. He is

an eye witness to the occurrence. In the fardbeyan, the

informant has stated about the presence of his son Arjun Rai
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(PW-3) with him at the time of occurrence. PW-3 has stated that

he was coming with his father by foot after grinding flour from

the flour mill which was kept on a bicycle and when they

reached near the house of Ram Pravesh Rai then from Taraiya

side, Baijnath Singh came on a motorcycle. There was an oral

exchange of words over the Gullar Tree on which Baijnath

Singh took out a dagger and assaulted on the right shoulder of

his father and then he penetrated the dagger in the left side on to

the stomach. This witness tied the wound by his gamchha and

tried to catch hold of Baijnath Singh but Baijnath Singh chased

him to assault. PW-3 has stated that he fled whereafter the

villagers assembled. Baijnath Singh had left his motorcycle

there. The father of this witness was taken to Taraiya Hospital

from where he was referred to Chapra Sadar Hospital and then

from Chapra, he was referred to PMCH but he was taken to

Ishwar Dayal Hospital where he was operated upon. PW-3 has

stated that in course of the treatment, his father died. In Taraiya

Hospital, the statement of his father was recorded, his father

had put his signature on his statement. This witness had also put

his signature on the fardbeyan. He has identified the signature

of his father on the fardbeyan as Exhibit '1' and his own

signature as Exhibit '1/1'.

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32. In his cross-examination, this witness has stated that

his home is village-Sitalpatti. Occurrence took place in the

village 'Andharwari'. There are 10/12 houses in village

Andharwari and the houses are situated at a distance of 2-4

steps. He has stated that his father was assaulted for about 10/5

minutes. He was not assaulted and he had not tried to save him.

He had seen the assault by dagger. The pointed part was

penetrated. He has made it clear in his cross-examination that

the house of Rajendra Rai and Ram Pravesh Rai are situated at

a distance of one laggi meaning thereby at a distance of seven

hands. This is important to note because in the fardbeyan the

informant has stated that the occurrence had taken place in front

of the house of Rajendra Rai but in course of evidence it has

transpired that Rajendra Rai and Ram Pravesh Rai are both

brothers and their houses are situated at a distance of one laggi

only.

33. This Court has, therefore, found that the statement

of the informant that the occurrence had taken place in front of

the house of Rajendra Rai cannot be taken to establish any

dispute with respect to the place of occurrence. It is to be

remembered that the occurrence had taken place in another

village where the deceased had gone with his son for grinding
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flour and he was assaulted by Respondent No. 2 on his way in

front of the house of Ram Pravesh Rai. The I.O. has also

established the place of occurrence being in front of the house

of Ram Pravesh Rai. Considering the distance between the

houses of the two brothers being only a distance of seven hands

which is equivalent to one laggi, it cannot be said to be a

material discrepancy.

34. It is found that in course of cross-examination of

PW-3, he was suggested that Baijnath Singh had also lodged a

case. This witness said that he was not aware of it. Thereafter,

the defence did not prove any documentary evidence to show

that Baijnath Singh had lodged a case. All that has been proved

by defence is a protest petition which has been marked Exhibit

'D'.

35. The defence further suggested PW-3 that Baijnath

Singh (accused) had suffered injury but in course of trial, the

defence has not brought on record any injury report of Baijnath

Singh (Respondent No. 2). No oral evidence has been adduced

in this regard even though in protest petition, Baijnath Singh

claimed that he had gone to Chapra Hospital for his treatment.

Thus, the defence has not proved by leading any cogent

evidence that Baijnath Singh had suffered any injury in the said
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occurrence. On perusal of the evidence of PW-3 coupled with

the fardbeyan of the informant (Exhibit '2'), it is evident that he

is an eye witness to the occurrence. He is the son of the

deceased. PW-1 has also said about the presence of PW-3 with

his father. PW-3 has withstood the test of cross-examination

and no material contradictions have been shown to this Court in

his evidence. The defence suggested PW-3 that occurrence is

said to have taken place in front of the house of Rajendra Rai

and no occurrence had taken place in front of the house of Ram

Pravesh Rai. PW-3 denied the suggestion.

36. Surendra Rai (PW-4) is an independent witness of

village Andharwari. He had seen Kameshwar at the place of

occurrence immediately after the occurrence. He has stated that

when he heard hulla at his bathan and went ahead to that place,

he found that Kameshwar Rai had suffered dagger injury in the

left and right side of his stomach. Baijnath Singh had assaulted.

Arjun son of Kameshwar Rai had fled away. Kameshwar Rai

was taken to hospital. This witness is, however, not an eye

witness to the occurrence and he has stated that he had not seen

the assault by dagger.

37. Sabha Rai (PW-5) is another eye witness to the

occurrence who has stated that there was a talk with regard to
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money on account of Gullar Tree, on this Baijnath Singh took

out a dagger and penetrated the same in the left side of the

panjara of Kameshwar Rai and second time assaulted on his

shoulder. He had chased this witness and Arjun (PW-3). This

witness stated that he fled away raising hulla whereafter

villagers assembled. He identified the accused. This witness has

stated in his cross-examination that he is the brother in Gotiya

of Kameshwar Rai. He has given the description of the place of

occurrence. He has stated that in South there is house of Ram

Pravesh and Rajendra. In East, atta-chakki. PW-4 has stated that

he is doing chowkidari. Thus, this witness corroborates the

statement of PW-3 with regard to place of occurrence. He has

stated that blood had fallen on the earth. He has stated that

before he could have reached, Baijnath Singh had already

reached there. When this witness reached there, he saw

Kameshwar Rai was bleeding whereafter he ran and raised

hulla.

38. Sachidanand Singh (PW-6) is the I.O. of the case.

He has proved the fardbeyan recorded by Asim Khan. It has

been marked Exhibit '2'. He had taken the charge of

investigation and proceeded to the place of occurrence on

05.06.2009. He was shown the place of occurrence by Baharan
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Rai (PW-2). The I.O. has proved the place of occurrence as the

pucci road North to the house of Ram Pravesh Rai. Road is

East-West. He has given the description of the place of

occurrence. He has stated that he did not find any noticeable

thing. The road is a very busy road. He recorded the statement

of witness. Later on, he came to know that the injured died

during his treatment. He had received the post-mortem report

and had filed the chargesheet.

In his cross-examination, he has stated to have recorded the

re-statement of Kameshwar Rai at Sitalpatti. When he had

recorded the re-statement of Kameshwar at that time, he had

wounds, when there was some healing he had come back but

thereafter his condition worsened and he again went to Patna.

He has stated that there is no counter case of this case. Case No.

17/10 Taraiya P.S. was registered after this case. This Court has

noticed from the protest petition (Exhibit 'D') that the

informant has mentioned about the case registered on

15.03.2010 in Taraiya P.S. on the basis of a Complaint Case No.

1919/09 dated 12.06.2009.

39. This Court finds that in this case, the date of

occurrence is 04.06.2009. This private complaint was filed after

8 days of the occurrence. In this case, the respondent no. 2 has
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not brought any evidence showing any injury to him. Thus, the

I.O. has stated that there was no counter case of the present

case.

40. Dr. Muneshwar Prasad Singh (PW-7) was the

Medical Officer in the Sadar Hospital, Chapra who has

conducted autopsy on the dead body of the deceased. He had

found the following injuries:-

"(i) one partially healed infected wound about 3/4" x
1/4" on the left side of upper part of abdomen with
surrounding excoriation of skin.

(ii) One infected wound about 1"x1" with
surrounding 5 stitches with granulation and
excoriation around the wound.

(iii) The abdomen was open in the mid line upper part
6"x3" with marks of stitches on the wound margins -

rectus muscle being visible through the gaping wound
with granulation and infection material over it, bluish
discolouration in the lower part."

41. PW-7 deposed on the injuries suffered by

Kameshwar Rai which he noticed in course of postmortem. He

has recorded that "shock and exhaustion due to infection of the

wounds, gaping of the abdominal wound and injury to intestine

were the cause of death". He has further opined that all the

injuries may be possible by chura. He has proved the post

mortem report which has been marked Exhibit '3'. In his cross-

examination, PW-7 has stated that "there are many causes of
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infection. Carelessness of patient may be one of the causes of

infection. If proper treatment was held, there was least chance

of infection. The pus formation was held in the intestine. The

death of the deceased was caused due to infection and pus

formation".

42. It is evident from the deposition of Doctor (PW-7)

that the wound caused to the deceased had developed infection

and pus formation had taken place which proved fatal and the

informant died. Explanation 2 to
Section 299
IPC takes care of

this aspect of the matter. It is evident that the death had taken

place because of the injury caused to the deceased.

43. We have further noticed the evidence of another Dr.

Surendra Prasad Singh (PW-9) who had examined the

informant in the Referral Hospital, Taraiya on 04.06.2009. He

had found the following injuries on his body:-

"(1) incised wound 2" x 1" deep to chest cavity on
the lower part of the back of chest on the left side.
(2) Incised wound on the right shoulder joint about
1" x ½" x skin deep.

Opinion of the both injury reserved and Patient is
referred to Sadar Hospital Chapra for further and
proper treatment.

Mark of Identification - a mole on left upper arm."

44. PW-9 has proved the injury report (Exhibit '4'). It

clearly shows that he had found incised wound deep to chest
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cavity on the lower part of the back of the chest and incised

wound on the right shoulder joint. Thus, the prosecution story

of two repeated dagger blow inflicted by the accused

(respondent no. 2) has been duly proved.

45. One of the witnesses, namely, Shri Bhagwan Rai

(PW-8) has been declared hostile. He was cross-examined by

the prosecution and his attention was drawn towards his

previous statement made before police. He has stated in his

cross-examination that he knew Baijnath Singh because he is

Dak Munshi but he did not know about the occurrence.

46. We have noticed that the prosecution has duly

proved the inquest report (Exhibit '5) and the post mortem

report as also report of the PMCH to show that two repeated

dagger blow were given to the deceased one of which

ultimately proved fatal to the life of the informant

47. This Court finds that in this case, the prosecution

has proved the date, time, place and manner of occurrence.

Prosecution witnesses are reliable, they have withstood the test

of cross-examination. The defence has, though questioned the

place of occurrence but it is well proved that Ram Pravesh and

Rajendra are brothers, they have their houses besides each other

which is hardly situated at a distance of one 'laggi' only. I.O.
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has given the description of the place of occurrence. The

witnesses are consistent that the informant was attacked by

respondent no. 2 (Cr. Appeal (DB) No. 203 of 2023) and he

penetrated dagger into the left side on to the stomach of the

informant.

48. We have been left with the sole argument of

respondent no. 2 that the proximate cause of death of the

informant in this case is not relatable to the actual death. We

will examine this submission of learned Senior Counsel for the

respondent no. 2 hereinafter.

49.
Section 299
IPC on which the learned trial court has

placed reliance reads as under:-

"299. Culpable homicide.--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.

Illustrations

(a) A lays sticks and turf over a pit, with the intention
of thereby causing death, or with the knowledge that
death is likely to be thereby caused. Z, believing the
ground to be firm, treads on it, falls in and is killed. A
has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know
it. A, intending to cause, or knowing it to be likely to
cause Z's death induces B to fire at the bush. B fires
and kills Z. Here B may be guilty of no offence; but A
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has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and
steal it; kills B, who is behind a bush, A not knowing
that he was there. Here, although A was doing an
unlawful act, he was not guilty of culpable homicide,
as he did not intend to kill B or cause death by doing
an act that he knew was likely to cause death.

Explanation 1.--A person who causes bodily injury
to another who is labouring under a disorder, disease
or bodily infirmity, and thereby accelerates the death
of that other, shall be deemed to have caused his
death.

Explanation 2.--Where death is caused by bodily
injury, the person who causes such bodily injury shall
be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the
death might have been prevented.

Explanation 3.--The causing of the death of a child in
the mother's womb is not homicide. But it may
amount to culpable homicide to cause the death of a
living child, if any part of that child has been brought
forth, though the child may not have breathed or been
completely born."

50.
Section 300
IPC is the charging Section which

defines 'murder'.
Section 300
with its five explanations are

being reproduced hereunder for a ready reference:-

"300. Murder.--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--

2ndly.--If it is done with the intention of causing
such bodily injury as the offender knows to be likely
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to cause the death of the person to whom the harm is
caused, or--

3rdly.--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--
4thly.--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.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies
in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a
disease that a blow is likely to cause his death, strikes
him with the intention of causing bodily injury. Z dies
in consequence of the blow. A is guilty of murder,
although the blow might not have been sufficient in
the ordinary course of nature to cause the death of a
person in a sound state of health. But if A, not
knowing that Z is labouring under any disease, gives
him such a blow as would not in the ordinary course
of nature kill a person in a sound state of health, here
A, although he may intend to cause bodily injury, is
not guilty of murder, if he did not intend to cause
death, or such bodily injury as in the ordinary course
of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound
sufficient to cause the death of a man in the ordinary
course of nature. Z dies in consequence. Here A is
guilty of murder, although he may not have intended
to cause Z's death.

(d) A without any excuse fires a loaded cannon into a
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crowd of persons and kills one of them. A is guilty of
murder, although he may not have had a premeditated
design to kill any particular individual.

Exception 1.--When culpable homicide is not
murder.--Culpable homicide is not murder if the
offender, whilst deprived of the power of self-control
by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the
death of any other person by mistake or accident.
The above exception is subject to the following
provisos:--

First.--That the provocation is not sought or
voluntarily provoked by the offender as an excuse for
killing or doing harm to any person.
Secondly.--That the provocation is not given by
anything done in obedience to the law, or by a public
servant in the lawful exercise of the powers of such
public servant.

Thirdly.--That the provocation is not given by
anything done in the lawful exercise of the right of
private defence.

Explanation.--Whether the provocation was grave
and sudden enough to prevent the offence from
amounting to murder is a question of fact.
Illustrations

(a) A, under the influence of passion excited by a
provocation given by Z, intentionally kills Y, Z's child.

This is murder, inasmuch as the provocation was not
given by the child, and the death of the child was not
caused by accident or misfortune in doing an act
caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on
this provocation, fires a pistol at Y, neither intending
nor knowing himself to be likely to kill Z, who is near
him, but out of sight. A kills Z. Here A has not
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committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to
sudden and violent passion by the arrest, and kills Z.
This is murder, inasmuch as the provocation was
given by a thing done by a public servant in the
exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z
says that he does not believe a word of A's deposition,
and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose. Z, in the exercise of the
right of private defence, lays hold of A to prevent him
from doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is murder,
inasmuch as the provocation was giving by a thing
done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to
violent rage. A, a bystander, intending to take
advantage of B's rage, and to cause him to kill Z, puts
a knife into B's hand for that purpose. B kills Z with
the knife. Here B may have committed only culpable
homicide, but A is guilty of murder.

Exception 2.--Culpable homicide is not murder if the
offender in the exercise in good faith of the right of
private defence of person or property, exceeds the
power given to him by law and causes the death of the
person against whom he is exercising such right of
defence without premeditation, and without any
intention of doing more harm than is necessary for the
purpose of such defence.

Illustration
Z attempts to horsewhip A, not in such a manner as to
cause grievous hurt to A. A draws out a pistol. Z
persists in the assault. A believing in good faith that he
can by no other means prevent himself from being
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horsewhipped, shoots Z dead. A has not committed
murder, but only culpable homicide.

Exception 3.--Culpable homicide is not murder if the
offender, being a public servant or aiding a public
servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes
death by doing an act which he, in good faith, believes
to be lawful and necessary for the due discharge of his
duty as such public servant and without ill-will
towards the person whose death is caused.

Exception 4.--Culpable homicide is not murder if it is
committed without premeditation in a sudden fight in
the heat of passion upon a sudden quarrel and without
the offender's having taken undue advantage or acted
in a cruel or unusual manner.

Explanation.--It is immaterial in such cases which
party offers the provocation or commits the first
assault.

Exception 5.--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.

Illustration
A, by instigation, voluntarily causes Z, a person under
eighteen years of age to commit suicide. Here, on
account of Z's youth, he was incapable of giving
consent to his own death; A has therefore abetted
murder."

51. On a bare perusal of Explanation 2 to
Section 299

IPC, it would appear that where death is caused by bodily

injury, the person who causes such bodily injury shall be

deemed to have caused death, although by resorting to proper
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remedies and skillful treatment, the death might have been

prevented. The learned trial court has understood otherwise. It

has taken a view that with proper and skillful treatment of the

informant, the death could have been avoided and the infection

as well as formation of pus in the wound is the cause of death.

This seems to have prevailed upon the learned trial court.

52. Further, we find that the learned trial court has held

that it is a culpable homicide. The learned trial court, however,

erred in taking a view that it is a case of culpable homicide not

amounting to murder. In this case, respondent no. 2 has inflicted

two dagger blows upon the informant. One of the dagger blows

could hit on the shoulder but it is nearer to the neck, luckily the

informant suffered only a skin deep injury on his shoulder but

the another blow was fatal, it hit on a vital part of the body and

there is no iota of doubt that the dagger blows were inflicted

with intention of causing such bodily injury which the

respondent no. 2 knew to be likely to cause death of the person

to whom such an injury is caused and the injuries is sufficient in

an ordinary cause of nature to cause death. The intention of the

appellant to kill the informant is found in the fact that he twice

attacked the informant aiming vital part of the body. The blow

suffered by the informant on his shoulder could have hit any
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other vital part of the body but he survived it, still the appellant

did not stop and gave second hit on to his stomach.

53. The finding of the learned trial court in the

following paragraphs may be seen:-

"IkzLrqr okn esa vfHk;qDr }kjk xqyj ds isM+ ds iSlk dks ysdj
ckrk&ckrh gksuk vkSj blh nkSjku pkdw ekjuk ;g ladsr nsrk
gS fd vfHk;qDr dks Kku gS fd tks d`R; og dj jgk gS ml
d`R; ls e`R;q dkfjr dj ldrk gSA"

54. The learned trial court has further held in the last

part of its' judgment as under:-

"vfHk;kstu dh vksj ls ijhf{kr lkf{k;ks ds lk{; ls Li'V gS
fd vfHk;qDr ;g Kku j[krs gq, lwpd¼e`rd½ ds {kfr dkfjr
fd ml {kfr ls mldh e`R;q gks ldrh FkhA vfHk;qDr ds {kfr
ds dkj.k lwpd ¼e`rd½ ds t[e esa laØe.k gqvk vkSj laØe.k
rFkk isV esa eokn cuusa ds dkj.k lwpd ¼e`rd½ dh e`R;q gks
x;hA"

55. The observations of the learned trial court that had

there been a proper and skilled treatment, the death could have

been avoided, cannot come to the rescue of the accused

(respondent no. 2).

56. The act of respondent no. 2 is apparently covered

under
Section 300
IPC.

57. We have taken note of the five Exceptions

hereinabove. It is not the case of defence that the dagger blow

was inflicted upon the informant due to any sudden and grave

provocation. The case would not fall in either of the Exceptions
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1, 2, 3, 4 and 5. Some of the prosecution witnesses have stated

that there were exchange of words between the informant and

the respondent no. 2 when respondent no. 2 took out a dagger

and assaulted the informant twice. It is not a case of grave and

sudden provocation. The fact that the respondent no. 2 was

carrying a dangerous weapon such as a dagger with him and he

intercepted the informant in another village 'Andharwari',

stabbed him and gave repeated dagger blow only proves that

the accused-respondent no. 2 had intercepted the informant with

a pre-meditation of mind, armed with a weapon in his

possession, he stopped, indulged in exchange of words, took

out his dagger, stabbed the informant and fled away.

58. Learned Senior Counsel for the respondent no. 2

has relied upon the judgment of Hon'ble High Court of Madhya

Pradesh in the case of
Imran Khan
(supra) but we find that

what has been held by the Hon'ble High Court in paragraph

'11' of the judgment would go against respondent no. 2.

Paragraph '11' of the judgment in the case of
Imran Khan

(supra) reads as under:-

"11. An act is said to cause death when death
results from the act itself or from some
consequences necessarily or naturally flowing
from the act, and reasonably contemplated as its
result. Where without the intervention of any
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considerable change of circumstances death is
connected with the act of violence by a chain of
causes and effects death must be regarded as the
proximate and not too remote a consequence of
the act. The cause must not only be the cause a
sine qua non, but it must also be a cause
reasonably proximate, but the doctrine of
criminal creation has reasonable limits. An injury
may lead to death. Death may be instantaneous
or may be delayed. The injury may lead to shock,
excessive bleeding, coma, syncope etc. and cause
death; in such a case, injury and death have a
clearly perceptible and direct nexus and there
will be no difficulty in finding that death is the
direct result of injury. The decision may not be
so easy in a case where death is caused not
directly by the injury itself, but due to a
complication or development or in a case where
death is delayed or due to a later complication or
development, court has to consider the nature of
the injury, complication or development and
attendant circumstances. If the complication or
development is the natural or probable or
necessary consequence of the injury and if it is
reasonably contemplated as its result, the injury
can be said to have caused death. If, on the other
hand, the chain of consequences is broken or if
there is unexpected complication causing new
mischief, the relation of cause and effect is not
established or the causal connection is too
remote and the injury cannot be said to have
cause death. If the original injury itself is of a
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fatal nature, it makes no difference that death is
actually caused by a complication naturally
flowing from the injury and not the injury itself
since causal connection is proximate."

(underline is mine)

59. In the kind of materials present on the record, we

find that the prosecution has been able to prove a case of

'murder' as defined under
Section 300
IPC. The learned trial

court has erred in acquitting the accused-respondent no. 2 of the

charge under
Section 302
IPC. This Court reaches to an

irresistible conclusion that the respondent no. 2 assaulted the

informant with a pre-meditation of mind, intentionally caused

two injuries, one of which hit on the vital part of the body

which was sufficient in ordinary course of nature to cause

death.

60. This Court would, therefore, allow the Cr. Appeal

(DB) No. 203 of 2023. The respondent no. 2 is held guilty of

commission of offence punishable under
Section 302
IPC. The

conviction of respondent no. 2 is altered from
Section 304
Part

II to
Section 302
IPC.

61. For the reasons discussed hereinabove, we find no

merit in Cr. Appeal (SJ) No. 119 of 2023. Hence, Cr. Appeal

(SJ) No. 119 of 2023 is dismissed.

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62. The respondent no. 2 is on bail. His bail bond is

cancelled and he is taken into custody. He will be sent to Beur

Jail for the present.

63. As prayed by learned Senior Counsel for

respondent no.2, the records are kept for hearing on sentence

day after tomorrow i.e. 07.05.2025. Respondent No.2 shall be

produced before this Court on 07.05.2025 at the time of hearing

on sentence.

(Rajeev Ranjan Prasad, J)

( Ashok Kumar Pandey, J)
arvind/sushma2-

AFR/NAFR AFR
CAV DATE 01.05.2025
Uploading Date 05.05.2025
Transmission Date 05.05.2025