1. Ishwar Marandi (since dead) 2. Munshi Marandi (since dead) Both sons of Late v. …. …. ------ P R E S E N T
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI ----- Cr. Appeal (DB) No.384 of 2005 ------ [Against the judgment of conviction and order of sentence dated 17.02.2005 passed by the learned Sessions Judge, Dumka in Sessions Case No.226/1999] ------ 1. Ishwar Marandi (since dead) 2. Munshi Marandi (since dead) Both sons of Late Jhangal Marandi 3. Dhabu Marandi 4. Bhagan Marandi (since dead) 5. Shibrat Marandi All three sons of Munshi Marandi All residents of village Baratalli, P.S. Dumka, (M) District- Dumka …. …. Appellants The State of Jharkhand Versus …. …. ------ P R E S E N T Respondent HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE NAVNEET KUMAR ….. For the Appellants For the State : Mr. Durga Charan Mishra, Advocate : Mr. Pankaj Kumar, P.P. : Ms. Sharda Kumari, AC to P.P. ….. C.A.V. on 29/11/2024 Pronounced on 18/12/2024 Per Sujit Narayan Prasad, J. Prayer 1. The instant appeal filed under Section 374 of the Code of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 17.02.2005 passed by the learned Sessions Judge, Dumka in Sessions Case No.226/1999, whereby and whereunder, the appellants have been convicted and sentenced to undergo R.I. for life along with fine of Rs.1000/- each under Sections 302 and 149 of the IPC and further, R.I. for two years for the offence under Section 148 of the IPC along with fine of Rs.500/- each. In case of default of payment of fine, the appellants have to undergo R.I. for 1 year and S.I. for one month respectively. Both the sentences will run concurrently. Prosecution case 2. This Court, before proceeding to examine the legality and propriety of the judgment of conviction and order of sentence, deems it fit and proper to refer the background of prosecution case, as per the written report of Jagan Hembram (informant), which reads as under:- 3. The prosecution case in brief on the basis of written report of Informant Jagan Hembram given to officer-in-charge, Dumka (M) P.S. is that the brother of informant namely Baijun Hembram, son of Late Bariyar Hembram was returning from Gando Hatia to his house. In the way Goshwar Marandi, Munshi Marandi, Gopal Marandi, all sons of late Jhangal Marandi, and Dhabu Marandi, Bhagan Marandi, Shibrat Marandi, all three sons of Munshi Marandi, resident of village Bartolli, pursued the brother of informant Baijan Marandi and when Baijan Marandi reached in front of his house at 7 p.m., the said Ishwar Marandi with an axe in his hand, Munshi Marandi with sword, Dhabu Marandi with 2 Cr. Appeal (DB) No.384/2005 bow and arrow, Shibrat Marandi with lathi, Bhagan Marandi with lathi, Gopal Marandi with lathi assaulted the brother of the informant and caused grievous injury consequent upon which he became unconscious. He further stated that the case of alleged occurrence was prolonged land dispute. His further statement was that he had come to police station with his unconscious brother and had giving report in writing. 4. On the basis of the written report of the informant Jagan Hembram, Police registered Dumka (M) P.S. Case No.03/99 dated 06/01/1999 under sections 147/ 148/149 307/324 of the I.P.C. and later on, Section 302 of the IPC was added. 5. Police, after completion of investigation, submitted charge- sheet under Sections 147, 148, 149, 341, 323, 325, 307 and 302 of the I.P.C. against the accused Ishwar Marandi, Munshi Marandi and Dhabu Marandi and Supplementary charge-sheet under Sections 147, 148, 149, 341, 323, 325, 307 and 302 was submitted against accused Shibrat Marandi and Bhagan Marandi and Gopal Marandi whereas Gopal Marandi was shown as an absconder. 6. Accordingly, cognizance was taken and the case was committed to the Court of Session by the learned A.C.J.M., Dumka on 25.10.1999, charges were framed against the abovementioned five accused persons under Section 148 and 3 Cr. Appeal (DB) No.384/2005 302 read with Section 149 IPC but they pleaded not guilty and faced the trial. 7. In order to prove its case, prosecution examined altogether 10 witnesses, i.e., Dr. Ranjan Kumar Pandey, (P.W.1), Jetha Marandi, (P.W.2), Maneshwar Hembram, (P.W.3), Jagan Hembram, (P.W.4), Muru Hembram (P.W.5), Sheolal Marandi, (P.W.6), Masicharan Marandi, (P.W.7), Shailendra Kumar (P.W.8), Sido Marandi, (P.W.9), and Dr. Ajay Kumar Singh (P.W.10). 8. The trial Court, after concluding the evidence of prosecution, recorded the statement of the accused persons under Section 313 of the Criminal Procedure Code, in which, accused persons had denied the prosecution evidence and claimed to be innocent. 9. The learned trial court, after perusal of record, found the charge levelled against the accused/appellants proved. Accordingly, the accused/appellants have been found guilty, as such, convicted and sentenced vide impugned judgment of conviction and order of sentence dated 17.02.2005, which is the subject matter of instant appeal. Arguments of the appellants
Legal Reasoning
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 19 Cr. Appeal (DB) No.384/2005 objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The „intention‟ and „knowledge‟ of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words „intention‟ and „knowledge‟ and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to „knowledge‟, „intention‟ requires something more than the mere foresight of the consequences, namely, the purposeful doing of a thing to achieve a particular end.” 27. 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 20 Cr. Appeal (DB) No.384/2005 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” [Emphasis supplied] 28. Recently the Hon’ble Apex Court while considering the various decisions on the aforesaid issue has laid down the guidelines in the case of Anbazhagan Vs. State Represented by the Inspector of Police reported in 2023 SCC OnLine SC 857 which are being quoted as under: “66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:— (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. --- (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence 21 Cr. Appeal (DB) No.384/2005 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 22 Cr. Appeal (DB) No.384/2005 act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word “likely” means probably and it is distinguished from more “possibly”. When chances of happening are even or greater than its not happening, we may say that the thing will „probably happen‟. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. 23 Cr. Appeal (DB) No.384/2005 (8) The court must address itself to the question of mensrea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple 24 Cr. Appeal (DB) No.384/2005 injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC. 29. In the backdrop of the aforesaid discussion of proposition of law, this Court in the instant case is to consider following issues: - “(i) Whether the material as has come in course of trial is sufficient to attract the ingredients of offence committed under Section 302 of the Indian Penal Code? or (ii) Whether the case is said to be covered under the exception to Section 300 of the Indian Penal Code? or (iii) Whether on the basis of factual aspect, the case will come under the purview of Part-I of Section 304 or Part-II thereof? or (iv) Whether the appellants are entitled for acquittal in absence of cogent evidences?” 30. Since, all the aforesaid issues are inextricably interlinked, the same are being discussed and decided hereinbelow together. 31. As we discussed, Section 299 I.P.C. speaks about culpable homicide wherein it has been stipulated that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to 25 Cr. Appeal (DB) No.384/2005 cause death, commits the offence of culpable homicide. Thus, Section 299 defines the offence of culpable homicide which consists in the doing of an act (a) with the intention of causing death; (b) with the intention of causing such bodily injury as is likely to cause death; (c) with the knowledge that the act is likely to cause death,―intent and―knowledge as the ingredients of Section 299 postulates existence of the positive mental attitude and this mental condition is the special mensrea necessary for the offence. The knowledge of 3rd condition contemplates knowledge or the likelihood of the death of the person. 32. If the offence which is covered by one the clauses enumerated above, would be liable to be convicted under Section 304 IPC. If the offence is such that which is covered by clause (a) or (b) mentioned above i.e. Section 299 IPC, the offender would be liable to be convicted under part I IPC as it uses the expression that death is caused with the intention of causing death or of causing such bodily injury as is likely to cause death, where intention is dominant factor. However, if the offence is such which is covered by clause (c) mentioned above, the offender would be liable to be convicted under Section 304-part II IPC because of the use of the expression ―if the act is done with the knowledge that is likely to caused death but without any intention 26 Cr. Appeal (DB) No.384/2005 to cause death or to cause bodily injury as is likely to cause death where knowledge is a dominant factor. 33. The Hon'ble Apex Court while considering the aforesaid fact, in the case of Jayaraj vs. 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] “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.” 34. 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. 27 Cr. Appeal (DB) No.384/2005 35. 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. 36. 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. 37. The Hon'ble Apex Court, in Keshub Mahindra v. State of M.P., reported in (1996) 6 SCC 129 has pleased to hold as under paragraph 20 which reads hereunder as :- “20. --- We shall first deal with the charges framed against the accused concerned under the main provisions of Section 304 Part II IPC. A look at Section 304 Part II shows that the accused concerned can be charged under that provision for an offence of culpable homicide not amounting to murder and when being so charged if it is alleged that the act of the accused concerned is done with the knowledge that it is likely to cause death but 28 Cr. Appeal (DB) No.384/2005 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. 38. 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 29 Cr. Appeal (DB) No.384/2005 injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. 39. 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. 30 Cr. Appeal (DB) No.384/2005 (c) If a public servant, while discharging his duty and having lawful intention, causes the death of a person (d) If it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender‘ having taken undue advantage or acted in a cruel or unusual manner. (e) Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. 40. 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. 41. 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. 42. In the aforesaid backdrop, this Court is now proceeding to examine the evidence adduced by the prosecution in course of trial in order to answer the issue as to whether the culpability in 31 Cr. Appeal (DB) No.384/2005 the instant case is under Section 302 or Section 304 Part-I or II of the Indian Penal Code by appreciating the evidences. 43. In order to reach out the just decision of the case we are again adverting to the testimony of prosecution evidence. It is evident from the record that P.W.4, Jagan Hembrom, is the informant and brother of the deceased. As per the testimony he is also eyewitness of the case and has stated that when he along with his brother Baijan Hembrom(deceased) reached near the house of Ishwar Marandi then Ishwar Marandi, Munshi Marandi, Dhabu Marandi, Shibrat Marandi, Gopal Marandi and Bhagan Marandi surrounded Baijan Hembrom. 44. P.W.4 has further deposed that Ishwar Marandi assaulted Baijan Hembrom on right side of the head by means of blunt portion of the tangi. Dhabu Marandi assaulted with arrow which did not hit Baijan Hembrom whereupon he had assaulted with lathi. This witness has further deposed that Shibrat and Bhagan assaulted with lathi whereupon Baijan fell down. It has further been alleged that accused persons dragged the injured in the Courtyard of Ishwar Marandi and thereafter, accused persons fled away. P.W.4 had further deposed that Baijan Hembron remained unconscious in the hospital and when, he gained consciousness, his behaviour was abnormal. 32 Cr. Appeal (DB) No.384/2005 45. P.W.2, Jetha Marandi claimed to be the eyewitness of the case and had stated that Ishwar Marandi and Munshi Marandi armed with lathi and they were assaulting Baijan near the "Kulhi" (Rasta) and thereafter they, dragged Baijan inside the house of Ishwar Marandi where upon Baijan became unconscious.P.W.2 had further stated that Ishwar Marandi assaulted Baijan Hembrom by tangi and gave 2 or 3 tangi blows. 46. P.W.3, Maneshwar Hembrom also claimed himself as an eyewitness and had deposed that on the date and time of occurrence, he was also coming from Gando Hatia and was behind of Baijan. PW.3 has stated that when they reached near the door of Ishwar in the gali, all of sudden Ishwar, Munshi, Gopal, Dhabu Bhagan started assaulting Baijan. Ishwar assaulted Bajjan with Kulhadi (axe), Munshi by talwar and remaining persons by bow and arrow. 47. P.W.6, Shivlal Marandi in his examination-in-chief has deposed that on the date of occurrence, it was evening and he was sitting in front of his house.P.W.6 has noticed that quarrel is going on between Baijan and Munshi, Bhagan, Ishwar, Dhabu, Shibrat. P.W.6 has stated that Munshi was carrying a sword in his hand and was also carrying a Tangi in another hand. Dhabu was armed with bow and arrow. Bhagan, Shibrat were carrying lathi. 33 Cr. Appeal (DB) No.384/2005 48. P.W.7, Mashi Charan Marandi, in his examination in chief, has deposed that at the time of occurrence he was sitting at his Darwaja situated in the lane and in the meanwhile Munshi, Ishwar, Gopal, Bhagan, Shibrat assaulted Baijan. 49. P.W.10, Dr. Ajay Kumar Singh, on the day of occurrence, he examined Baijan Hembrom(deceased) and found the lacerated injuries on the scalp of the Baijan Hembrom and he further found the swelling in the leg, left forearm and right knee. He further testified that according to X-ray report, the X-ray report shows fracture of temporal parietal bone. He opined that all injuries were caused by hard and blunt substance. 50. P.W.1, Dr.Ranjan Kr. Pandey had conducted the Postmortem examination over the dead body of Baijan Hembrom. In the opinion of P.W.1, the death was due to shock C.R. (cardio respiratory) failure as a result of head injury i.e., injury no.1, 2 and 3. He further opined that all the injuries were caused by hard and blunt substance as the scar of the wound was irregular. 51. P.W.8, Sahilendra Kumar (Investigating Officer) has deposed that first place of occurrence is situated in village Bartalli in front of the house of Ishwar Marandi. According to P.W.8, the second place of occurrence of this case is situated in the court yard of Ishwar Marandi.P.W.8 during inspection of courtyard in the 34 Cr. Appeal (DB) No.384/2005 eastern side on the mud, found the blood stains which cannot be collected. 52. It needs to refer herein that since the appellant No.1 Ishwar Marandi, s/o Late Ingal Marandi, appellant No.2 Munshi Marandi s/o Ingal Marandi and appellant No.4 Bhagan Marandi s/o Munshi Marandi have died and their family members have provided the death certificate issued by Mukhiya and no application has been filed by the legal representative of the deceased appellants No.1, 2 & 4 to pursue the instant appeal on their behalf, hence, the instant criminal appeal, so far as it relates to the three appellants namely appellant No.1 Ishwar Marandi, appellant No.2 Munshi Marandi and appellant No.4 Bhagan Marandi, has been abated vide order dated 29.11.2024 passed by this Court. Therefore, this appeal has been taken into consideration by this Court in order to ascertain the culpability of Dhabu Marandi and Shibrat Marandi in the alleged commission of crime. 53. In the instant case, from the testimonies of the doctor and the postmortem report, it is admitted fact that the deceased died homicidal death and death of deceased occurred after 14 days of his stay in the Hospital. As per the postmortem report, the deceased had died as a result of injuries which were suffered by a blunt object, such as, lathi and not a single injury could be associated with any sharp cutting weapon like axe. The record 35 Cr. Appeal (DB) No.384/2005 indicates that the place of occurrence was near the house of one of the accused namely Ishwar Marandi (since dead). Further it is established that the entire occurrence has been witnessed by the prosecution witnesses as such it the case of direct evidence. 54. It is evident from record that P.W.4 informant, has categorically stated that deceased was surrounded by the Ishwar Marandi, Munshi Marandi, Dhabu Marandi, Shibrat Marandi, Gopal Marandi and Bhagan Marandi. Therafter, Ishwar Marandi assaulted Baijan Hembrom on right side of the head by means of blunt portion of the tangi. Dhabu Marandi assaulted with arrow which did not hit Baijan Hembrom whereupon he had assaulted with lathi. This witness has further deposed that Shibrat (appellant herein) and Bhagan assaulted with lathi whereupon Baijan fell down. His testimony has been substantiated by the other eyewitness. 55. P.W.2 had further stated that Ishwar Marandi assaulted Baijan Hembrom by tangi and gave 2 or 3 tangi blows but the said statement has not been substantiated by both the doctors i.e,. P.W.10, Dr. Ajay Kumar Singh and P.W.1, Dr.Ranjan Kr. Pandey. P.W.10, Dr. Ajay Kumar Singh is the doctor who had examined the Baijan Hembrom on the day of occurrence and he had opined that all injuries were caused by hard and blunt substance. The said aspect of the testimony of P.W.10 has been substantiated by 36 Cr. Appeal (DB) No.384/2005 the testimony of P.W. 1 who has conducted the postmortem on the dead body of deceased as he stated in his testimony that all the injuries were caused by hard and blunt substance as the scar of the wound was irregular. 56. Thus from the aforesaid discussion it is evident that in the alleged commission of crime axe has not been used as weapon for assault, it means that deceased was assaulted by the appellants by Lathi and this fact has been fully substantiated by the version of prosecution witnesses. 57. Further, it needs to refer herein that admittedly deceased was died in hospital after 14 days of the alleged occurrence, and even during stay in hospital deceased has gained his conscious and this fact has been substantiated by the statement of informant i.e. P.W.4 who had deposed in his examination-in-chief that Baijan Hembron remained unconscious in the hospital and when, he gained consciousness, his behaviour was abnormal. 58. Thus, at this juncture question arises that whether the appellants have requisite intention to kill the deceased or they have only knowledge that such a blow even by a Lathi upon the deceased would result into the injury likely to cause death of the deceased. 59. We find from the medical evidence that no injury whatsoever had been caused to the deceased by an axe. As discussed herein 37 Cr. Appeal (DB) No.384/2005 above the prosecution witnesses had deposed that one of the appellants was armed with the axe. Therefore, had the appellants shared the common intention to cause the death of the deceased, nothing could have prevented them from using the deadly weapons like axe. 60. At this stage, it is necessary to reiterate the well settled principle that guilt of the accused is to be judged on the basis of the facts and circumstances of the particular case. The injuries found on the person of the accused assume importance in respect of genesis and manner of occurrence. Conclusion 61. In the backdrop of aforesaid discussion and the judicial pronouncement and the testimonies of prosecution witnesses as also taking into consideration the facts and circumstances of the instant case, we are of the view that the appellants did not intend to cause the death of the deceased. The facts proved by the prosecution and the established circumstances on the record go to show that the case of the appellants does not fall within the ambit of any of the four clauses of the definition of murder contained in Section 300 IPC. However, in causing the injuries as have been noticed in the post-mortem report and deposed to by PW 1(doctor), the appellants must be attributed the knowledge that by their acts, they were likely to cause the death of the 38 Cr. Appeal (DB) No.384/2005 deceased, though without any intention to cause his death or to cause such bodily injury as is likely to cause his death. The offence, in such a case, would, therefore, be only culpable homicide not amounting to murder as per the third clause of Section 299 IPC, punishable under Sections 304 Part II/149 IPC. 62. Resultantly, we find that the learned trial court while convicting the appellants for commission of offence under Section 302 of the Indian Penal Code, has committed error by ignoring all these facts as recorded in the preceding paragraphs. 63. Accordingly, we are of the view that the judgment impugned convicting the appellants under Section 302 I.P.C. needs to be interfered with by modifying it to that of conviction of the appellants under Section 304 Part-II of the IPC. 64. Consequently, the judgment passed by the learned trial court is modified and appellants are held guilty under Section 304 Part II read with Section 149 of the Indian Penal Code. 65. On the question of sentence, we have been informed that the appellants have already suffered incarceration for over 7 and 10 years and presently they are on bail after suspension of sentence. 66. In the aforesaid circumstances, we are inclined to modify the sentence of imprisonment to the period already undergone. The appellant nos.3 & 5 are hereby thus discharged from the liabilities of bail bonds. 39 Cr. Appeal (DB) No.384/2005 67. In view of the discussions made hereinabove, judgment of conviction and order of sentence dated 17.02.2005 passed by the learned Sessions Judge, Dumka in Sessions Case No.226/1999, is modified to the aforesaid extent. 68. Accordingly, the instant appeal stands dismissed with the aforesaid modification in the judgment of conviction and order of sentence. 69. Let this order/judgment be communicated forthwith to the Court concerned along with the Trial Court Records. I Agree (Sujit Narayan Prasad, J) (Navneet Kumar, J.) (Navneet Kumar, J.) High Court of Jharkhand, Ranchi Dated: 18th December, 2024. Rohit/-A.F.R. 40 Cr. Appeal (DB) No.384/2005
Arguments
10. Mr. Durga Charan Mishra, learned counsel for the appellants has taken the following grounds by assailing the impugned judgment of conviction and order of sentence: - 4 Cr. Appeal (DB) No.384/2005 (i) The case is said to be of Section 304 part-II taking into consideration the fact that the death is after 14 days from the date of occurrence. If the intention to kill would have been there, then, at the spot itself, the deceased would have been killed since as per the prosecution version, all the accused persons, the convicts were armed with deadly weapons like Talwar, Tangi, bow, arrow and Lathi. (ii) P.W.3, Maneshwar Hembrom in his deposition has stated that occurrence took place in Gali whereas P.W.2 Jetha Marandi in his testimony has stated that occurrence took place at Kulhi (Rasta), as such, the prosecution has failed to establish the case and proved the charge beyond all reasonable doubts. (iii) P.W.3, Maneshwar Hembrom who is said to be an eye witness has stated in his deposition that Munshi assaulted Baijan (deceased) with sword but the doctor who has examined the deceased, did not find any injury of sword as such there is major contradiction in the ocular evidence with the medical evidence. (iv) There is contradiction regarding the place of occurrence and the manner of assault by taking into consideration the testimony of witnesses, hence, the testimony of the witnesses cannot be said to be reliable. 5 Cr. Appeal (DB) No.384/2005 11. Learned counsel for the appellants, on the aforesaid grounds, has submitted that the impugned judgment of conviction/sentence suffers from patent illegality and hence, it is not sustainable in the eye of law. Arguments of the respondent-State 12. Per Contra, Mr. Pankaj Kumar, learned Public Prosecutor appearing for the respondent-State has taken the following grounds by defending the impugned judgment of conviction: - (i) It is incorrect on the part of the appellants that the testimony of the witnesses cannot be said to be reliable. (ii) The presence of the accused persons is there and since it has come in the testimony of prosecution witnesses, that they have also assaulted to deceased but it was not fatal blow, rather, the fatal blow was given by the appellant no.1, namely, Ishwar Marandi (now deceased) and as such, the ingredients of Section 149 is there. (iii) All the accused persons are named in the FIR and there is allegation of assault and the specific overt act has been attributed. (iv) It is also incorrect to say that the ocular evidence is contradiction with the medical evidence. 13. Learned counsel for the state respondent, on the aforesaid premise, has submitted that the impugned judgment of conviction/sentence requires no interference by this Court. 6 Cr. Appeal (DB) No.384/2005 Analysis 14. We have heard the learned counsel for the parties, considered the finding recorded by the learned trial court in the impugned judgment, gone across the testimony of the prosecution witnesses along with other exhibits particularly the postmortem report as available in the lower court records. 15. This Court, before examining the propriety of the impugned judgment based upon the submission made on behalf of the learned counsel for the parties, is of the view that the testimony of prosecution witnesses needs to be referred herein. Testimony of the witnesses 16. P.W.4, Jagan Hembrom, is the informant of this case. P.W.4 in his deposition has stated that the deceased Baijan Hembrom was his brother and on the date of occurrence, his brother was coming from Gando Hatia to his house and P.W.4 was at 41 to 50 hands of distance from his brother and when they reached near the house of Ishwar Marandi then Ishwar Marandi, Munshi Marandi, Dhabu Marandi, Shibrat Marandi, Gopal Marandi and Bhagan Marandi surrounded Baijan Hembrom. 7 Cr. Appeal (DB) No.384/2005 P.W.4 has further deposed that Ishwar Marandi assaulted Baijan Hembrom on right side of the head by means of blunt portion of the tangi. Dhabu Marandi assaulted with arrow which did not hit Baijan Hembrom whereupon he had assaulted with lathi. P.W.4 had deposed that Shibrat and Bhagan assaulted with lathi whereupon Baijan fell down. It has further been alleged that accused persons dragged the injured in the Courtyard of Ishwar Marandi and thereafter, accused persons fled away. P.W.4 had further alleged that on hulla, villagers assembled and P.W.4 brought Baijan Hembrom to the Police station and gave written report which is marked as Ext.3. P.W.4 has further stated that Baijan Hembrom was shifted to Sadar Hospital, Dumka where he died during the treatment. P.W.4 had stated that motive of occurrence was that the land dispute was going on between the parties and in civil litigation a judgement was delivered in favour of P.W.4. P.W.4 in his cross examination had testified that Ishwar Marandi assaulted Baijan Hembrom with tangi and Munshi Marandi assaulted Baijan with lathi.P.W.4 has further deposed that Baijan was assaulted by Ishwar. P.W.4 had deposed that villagers Shivlal Marandi, his wife and wife of Jamin have also witnessed the occurrence. P.W.4 in his cross examination has further stated that villagers Kanu 8 Cr. Appeal (DB) No.384/2005 Marandi, Shivlal Marandi, (P.W.6), Shiv Charan Marandi, wife of Mashi Charan, wife of Shivlal and Chawkidar helped him to take out Baijan from the courtyard of Ishwar Marandi. P.W.4 had further deposed that Baijan Hembron remained unconscious in the hospital and when, he gained consciousness, his behaviour was abnormal. P.W.4 has denied the suggestion of the defence that Baijan Hembrom after taking liquor from the Hatia, was returning to his house and fell down in the ditch and received injury, and no occurrence took place as stated by P.W.4. 17. P.W.2, Jetha Marandi had stated that at the time of the occurrence he was at his home and wife of Jagan came and disclosed that Baijan Hembrom was assaulted by Ishwar Marandi, Munshi Marandi, shibrat Marandi, Bhagan Marandi, Dhabu Marandi and Gopal Marandi. P.W.2 on hearing this fact went to the place of occurrence and noticed that Ishwar Marandi and Munshi Marandi armed with lathi and they were assaulting Baijan near the "Kulhi" (Rasta) and thereafter they, dragged Baijan inside the house of Ishwar Marandi where upon Baijan became unconscious. P.W.2 in his cross examination has deposed that at the place of occurrence 50-60 villagers including Shivial, Mashi Charan, Berka Marandi, have assembled. P.W.2 had further 9 Cr. Appeal (DB) No.384/2005 stated that Ishwar Marandi assaulted Baijan Hembrom by tangi and gave 2 or 3 tangi blows. P.W.2 has denied the suggestion of the defence that he has not seen the occurrence due to enmity has given false evidence. 18. P.W.3, Maneshwar Hembrom has deposed that on the date and time of occurrence, he was also coming from Gando Hatia and was behind of Baijan. PW.3 has stated that when they reached near the door of Ishwar in the gali, all of sudden Ishwar, Munshi, Gopal, Dhabu Bhagan started assaulting Baijan. Ishwar assaulted Bajjan with Kulhadi(axe), Munshi by talwar and remaining persons by bow and arrow. P.W.3 has deposed that accused persons also dragged Baijan inside the court-yard of Ishwar. P.W.3 has further deposed that they brought the injured Baijan to Police Station and from where Baijan was brought to the Hospital where he died. P.W.3 has further stated that Police has prepared the inquest report which bears the signature of P.W.3 which has been marked Ext.2 and Ext.2/1 also the signature of Santosh Marandi. P.W.3 has stated that due to land dispute the accused persons have assaulted the deceased Baijan Hembrom. 10 Cr. Appeal (DB) No.384/2005 P.W.3 in his cross-examination had deposed that the village Bartalli is situated 1/2 K.M. from Gando. P.W.3 had further stated that Baijan and Jagan are his uncle. P.W.3 has stated that the occurrence took place in the Gali and the accused persons were standing in the Gali. P.W.3 has further stated that the accused persons were standing five hands from the deceased and accused persons also tried to assault P.W.3 whereupon he fled away. P.W.3 has further stated that he had gone to the hospital where he noticed Baijan’s (deceased) leg was having plaster. P.W.3 in his cross examination has stated that he has stated before the Police that he was coming behind Baijan from Gando Hatia when they reached near the house of Ishwar Marandi near the Gali Ishwar Marandi, Munshi Marandi, Gopal, Dhabu, Bhagan assaulted Baijan and thereafter, dragged him in the court yard of Ishwar. 19. P.W.6, Shivlal Marandi in his examination-in-chief has deposed that on the date of occurrence, it was evening and he was sitting in front of his house. P.W.6 has noticed that quarrel is going on between Baijan and Munshi, Bhagan, Ishwar, Dhabu, Shibrat. P.W.6 has stated that Munshi was carrying a sword in his hand and was also carrying a Tangi in his another hand. Dhabu was armed with bow and arrow. Bhagan, Shibrat were carrying 11 Cr. Appeal (DB) No.384/2005 lathi. P.W.6 has stated that the accused persons assaulted Baijan having injury on his head. P.W.6 in his cross examination has deposed that deceased Baijan is related with him. P.W.6 in his cross examination has further stated that Baijan after receiving injury and fell down in the lane and thereafter the accused persons fled away. P.W.6 had stated that the Police has taken his statement but denied that he has stated before the Police that Baijan was returning from Gando Hatia along with Maneshwar and Ishwar Marandi, Munshi Marandi assaulted Baijan from behind. P.W.6 in his cross examination has deposed that they took injured Baijan to the Police Station on a car. 20. P.W.7, Mashi Charan Marandi, in his examination in chief, has deposed that at the time of occurrence he was sitting at his Darwaja situated in the lane and in the meanwhile Munshi, Ishwar, Gopal, Bhagan, Shibrat assaulted Baijan. P.W.7 in his cross-examination has stated that he did not inform the Police. P.W.7 has further stated that he raised hulla and he also noticed that Jetha Tudu was also standing at the place of the occurrence. P.W.7 has stated that he has informed the Police and took injured to the Police Station. P.W.7 has also admitted that Baijan was related with him. This witness had 12 Cr. Appeal (DB) No.384/2005 denied the suggestion of the defence that he has falsely deposed in this case. 21. P.W.9, Sido Marandi is the hearsay witness. 22. P.W.10, Dr. Ajay Kumar Singh who was posted as Medical Officer in Sadar Hospital, Dumka and on that day he examined Baijan Hembrom aged 49 years, Hindu male, son of Bariyar Hembrom was the resident of Bartalli, P.S. Dumka, Muffasil, District Dumka at 10.45 p.m. found the following injuries:- (1) Lacerated wound 2"X 2"X bone deep over left side of mid line over scalp. (2) Lacerated wound 3"X 1/2"X Scalp deep over left temporal region. (3) Lacerated wound 1/2"X 1/8"X Scalp deep over back of the scalp left side. (4) Abrasion 1"x 1" over right molor bone. (5) Diffused swelling over left side of lower part of the back of the chest. (6) Diffused swelling of lateral aspect of lower 1/3rd of left leg. (7) Diffused swelling over middle of the left forearm. (8) Diffused swelling of right knee. Injury no.4 and 5 are simple in character rest injury No.1, 2, 3, 6, 7, 8 opinion of which kept reserved for want of X-ray 13 Cr. Appeal (DB) No.384/2005 report. All injuries caused by hard and blunt substance. Age of injury within six hours. Mark of identification future scar of the wound. The injury report was prepared by P.W.10 and bears his signature which has been marked as Ext.6. P.W.10 further stated that on 10.01.99, a supplementary injury report of Baijan Hembrom was prepared by him after production of X-ray report and plate dated 09.01.99 which was taken by Dr. D.N. Pandey. According to X-ray report, the X-ray report shows fracture of temporal parietal bone. X-ray right thigh and knee show fracture to lower end of femur. Opinion- injury no.2 and 8 are grievous in nature. The supplementary injury report which has been marked as Ext.6/1. P.W.10 in his cross examination has stated that X-ray plate of the injured is not before me. All the injuries can be caused by multiple falls from height on hard substance. Injury report examined by P.W.10 has been handed over to the Dr. Ranjan Kumar Pandey, Medical Officer, Sadar Hospital, Dumka who has conducted the post-mortem examination on the body of Baijan Hembrom. 23. P.W.1, Dr. Ranjan Kr. Pandey, in his examination-in-chief, has stated that on 20.01.99, he was posted at Sadar Hospital, Dumka as Medical Officer, Sadar Hospital, Dumka. On that day 14 Cr. Appeal (DB) No.384/2005 at 11.30.a.m., he conducted the Postmortem examination over the dead body of Baijan Hembrom. The dead body was brought by the constable no.492, Madan Upadhya and Santosh Marandi and found the following external appearance average built body rigor mortis present in lower extremities eyes half open, mouth partially open and Pupils dilated. (11) Following antemortem injuries were found on the body of the deceased:- (1) One healed scar 3" long on the left temporal parietal region of the skull. (ii) one healed scar mark 2" long on posterior part of left parietal region of the skull. (iii) One healed scar mark 1/2" long on left occipital region of the scalp. On dissection of the skull muscles subenteneous tissue of the left tempono parietal, right froto parietal and the occipital region ecchymosed with fracture of the parietal occipital and the occipital region of the skull bone. On further dissection, subdural hematoma was found present on left temporal parietal occipital region. (iv) Healed abrasion 1"X 1" on right mallar prominence. (v) Healed scar mark 1/2"x 1/4" with scab on mid of left forearm. (vi) Healed scar 1/4" X 1/4" scab on the lower part of left leg with fracture of the lower part of left fibula. 15 Cr. Appeal (DB) No.384/2005 (vii) Right lower limb strapped with leucoplast and bandaged and the leucoplast a healed abrasion 1/2"x 1" on lower part of right thigh with fracture of the under lying femur bone. In the opinion of P.W.1, the death was due to shock C.R. (cardio respiratory) failure as a result of head injury i.e., injury no.1, 2 and 3. All the injuries were caused by hard and blunt substance as the scar of the wound was irregular. Time elapsed since death within 36 hours and age of injury within two weeks. The post-mortem report is prepared in carbon process by P.W.1 and bears his signature marked as Ext.1. P.W.1 in his cross- examination has stated that all the injuries were within two weeks and the above injuries such as fracture cannot be caused on one fall. It may be caused if a man falls a number of times from a height. 24. P.W.8, Sahilendra Kumar (Investigating Officer) of this case has deposed in his examination-in-chief that on 06.01.1999, he was posted as Sub-inspector of Police at Dumka (M) P.S. On that day, Dumka(M) P.S. Case No.03/99 was registered. Charge of investigation was taken by S.I., Sujata Kumari. P.W.8 has further stated that the formal FIR is in writing of officer-in-charge, Sujata Kumari which is marked as Ext.4. 16 Cr. Appeal (DB) No.384/2005 P.W.8 during course of investigation inspected the place of occurrence. He had stated that first place of occurrence is situated in village Bartalli in front of the house of Ishwar Marandi. The lane is non-metal and round from east to west and is 10 to 12 feet broad. South of the first place of the occurrence, the house of Ishwar Marandi situated in north house of Mundra Rana is situated and east and west, the village road is situated. According to P.W.8, the second place of occurrence of this case is situated in the courtyard of Ishwar Marandi and around the courtyard rooms are situated and, in the rooms, the accused persons reside. P.W.8 during inspection of courtyard in the eastern side on the mud, found the blood stains which cannot be collected. On the northern side of the courtyard, there is Kulhi for the ingress and outgress of the accused persons and on the southern side of the house of the brother of the Ishwar Marandi is situated. P.W.8, during course of investigation, recorded the statement of the accused persons and also received the inquest report of the deceased prepared by A.S.I. Anil Oraon which P.W.8 identified and which has been marked as Ext. 5. The endorsement of the formal F.I.R. made by Sujata Kumari, Officer-in-charge, Dumka (M) P.S.is also marked as Ext.4/1. P.W.8, in his cross-examination has stated that he has recorded the statement of accused in Hindi. P.W.8 has stated 17 Cr. Appeal (DB) No.384/2005 that he has recorded the statement of witness Jetha Marandi on 07.01.99 and the statement of witness Maneshwar recorded on 07.01.99. P.W.8 in his cross examination has stated that he has recorded the statement of Shivlal and witness Shivlal in his statement has stated that he was returning with Baijan from Gando Hatia and Baijan and Maneshwar was going together. P.W.8 has denied the suggestion of the defence that he did not conduct the investigation in proper manner. Reference of the law point 25. This Court, in order to appreciate the submissions advanced on behalf of appellant with respect to the culpability of the appellant of commission of offence under Section 302 or under Section 304 Part-I or Part-II of the Indian Penal Code vis- à-vis the evidences adduced on behalf of the parties, deems it fit and proper to refer certain judicial pronouncements regarding applicability of the offence said to be committed under Section 302 or 304 Part-I or Part-II of the Indian Penal Code. 26. In the case of Nankaunoo vs. 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 :- 18 Cr. Appeal (DB) No.384/2005 “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