Intent to kill was established through infliction of dagger wounds; original conviction for culpable homicide was incorrect as the act constituted murder as per IPC definitions.

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 ‘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.

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.

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 , 324 and 307 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 , 323, 307 and 302 IPC against Baijnath Singh. Upon submission of charge-sheet, the learned Magistrate took cognizance vide order dated 02.10.2009/05.10.20