PROJECT REPORT

(SUBMITTED FOR THE TITLE OF THE

RAJ KISHORE JHAB.A.LLB
DEGREE OF VS STATE
(HOF
ONSBIHAR
) UNDER THE CE
SCHOOL
OF LAW BIHAR)
SUBMITTED BY:
AND
Name of the Candidate: - Pratik
kumar
GOVER CUSB Enrollment Number: -
CUSB1813125066
NANCE Semester: - 1stSession: - 2018-2023
SUPERVISED BY:

Name of the Supervisor: - M/s

poonam kumari
School: School of Law and Governance

ACKNOWLEDGMENT
I would like to take this opportunity to express our sincere appreciation to our
Head Of Department Dr.Sanjay prakash srivastava for giving us opportunity
to do project. First of all we would like to thank The Central University Of
South Bihar for providing us the opportunity to be a part of this dissertation.

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My sincere thanks to my supervisor m/s poonbam kumari who gave me their
valuable feedback and guidance throughout this dissertation. For taking
immense interest in this project and being only a call away whenever we
needed any suggestion. For helping us finalize the title of this dissertation and
most importantly to complete the task within the scheduled time.

My love and appreciation to all our friends and all those who were part of and
helped us in anyways in completing this task.

WITH REGARDS
PRATIK KUMAR

2
 TABLE OF CONTENT
TOPICPAGE No.

 Details of thecase 4

 Introduction of thecase 5

 Facts of the case 5-6

 Judgment of the case 7- 8

1. Trial court
2. High Court
3. Supreme Court

 Reason for decision 8-12

1. High Court
2. Supreme Court Of India

 Conclusion 13

 Bibliography 14

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 Details of the case

1. Name of the case:- Raj Kishore Jha Vs. State of Bihar and Ors.

2. Citations:- AIR2003SC4664.

3. Case decided on Date:- 07th October 2003.

4. Appellants:- Raj Kishore Jha

5. Respondents:- State of Bihar and Ors.

Hon’ble Judges:-DoraiswamyRaju and Dr. ArijitPasayat, JJ.

Counsels:

For Appellant/Petitioner/Plaintiff: S.B. Sanyal, Sr. Adv., Shambhu Prasad

Singh and R.D. Upadhyay, Advs

For Respondents/Defendant: Sushil Kumar, Sr. Adv., ManjuAggarwal and

SatyaMitraGarg, Advs. for the Respondent Nos. 2 to 10, K.B. Sounder Rajan,
Adv. for the Respondent No. 11 and B.B. Singh and Kumar Rajesh Singh,
Advs.

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Introduction of the case

This case is a criminal matter. The case is concerned with the various sections related
to the Indian Penal Code, 1860 and Arms Act, 1959. In this case the accused is
charged under Sections 148, 149, 302 and 304 of the Indian Penal Code and accused
is also charged under Section 109 and 27 of the Arms Act, 1959. Section 148 of the
IPC deals with the Rioting, armed with deadly weapon; Section 149 of the IPC deals
with the every member of unlawful assembly guilty of offence committed in
prosecution of common object; Section 302 deals with the punishment for murder
and Section 304 deals with the punishment for culpable homicide not amounting to
murder. In this case there are total numbers of 15 accused persons, 1 deceased
person, 1 informant and few eye witnesses.

In this case the facts were that the Nawal Kishore Jha and Raj Kishore Jhawas
walking in the village towards the chowk. They saw few person carrying with deadly
arms weapon to the Darwaja of Deo Chandra Jha to loot his Khalian. Nawal Kishore
Jha protested against the unlawful assembly that why they are doing so. One of the
member of the unlawful assembly namely BundevJha fired a bullet from his gun.
The bullets hit the deceased Nawal Kishore Jha on the forehead. On one hand, one of
the accused namely DayaNandJha asked other members of the mob to leave as a
murder has been committed and on other hand informant i.e. Raj Kishore Jha and
few members took the injured person i.e. Nawal Kishore Jha to the hospital for a
medical treatment but Nawal Kishore Jha died on the way. The informant lodge an
FIR in a police station.

In this case Hon’ble Court held that accused person is not liable under Section 302 of
the IPC but under Section 304 read with Section 149 of the IPCaccused is liable.
Section 304 of the IPC which says that “Punishment for culpable homicide not
amounting to murder”.

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Facts of the case

Nawal Kishore Jha (hereinafter referred to as 'the deceased'), 9.4.1980 was the last
day in this earth. He allegedly suffered homicidal death at the hands of the accused
persons. There was long-standing enmity between RajendraJha (A-6) and one Deo
Chandra Jha and there were several rounds of litigations between them. Raj Kishore
Jha (PW 15) was going with the deceased for a walk in their village towards the
chowk. They found BundevJha (A-1), BindeshwarJha, Rajendra (A-6), ArjunJha (A-
2), LalluJha (A-3),DayaNandJha (A-7), ParmanandJha (A-15), ArjunJha (A-14),
GopalJha(A-4), MadanandJha (A-8) and others were armed with various weapons
and came to the Darwaja of Deo Chandra Jha to loot his Khalihan. The deceased
protested as to why they were doing so. Hearing the protestations, DayaNandJha (A-
7) and RajendraJha (A-6) ordered BundevJha (A-1) to shoot down the deceased.
BundevJha (A-1) fired at once from his gun.

The pellet hit deceased on the forehead, front portion of the neck and chest and he
fell down unconscious. Accused DayaNandJha (A-7) asked the other members of the
mob to leave as a murder had been committed. Raj Kishore Jha informant with the
help of Prem Chandra Jha and Kaushal Kishore Jha and others tried to take the
deceased to the hospital for treatment but on the way he breathed his last. The
informant, therefore, went to the police station to lodge the report. Investigation was
undertaken and charge-sheet was placed on completion thereof. The accused persons
took the plea as evident from the suggestions given to the PWs and examination
under Section 313 of the Code of Criminal Procedure, 1973 (for short 'the Cr.P.C.')
that on 9.4.1980 at about 5.00 p.m. Sri Kant Jha, the informant along with Deo
Chandra Jha,Nawal Kishore Jha and some other PWs and others formed a mob of 50-
60persons and were variously armed and they went to the house of Accused
DayaNandJha. They asked him to withdraw the case instituted against some of them
and started looting wheat and other articles. Many persons from the village
assembled there and requested the members of the mob to stop, but they did not
listen to them and started pelting stones upon the villagers. In retaliation the villagers
also started pelting stones. Deo Chandra Jha who was armed with a gun opened fire.

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The villagers forced the members of the mob to retreat and while they were doing so,
Deo Chandra Jha also retreated towards south-west while still firing. Members of the
mob committed theft of valuables and one of the gun fires made by Deo Chandra Jha
hit deceased which proved fata

JUDGEMent

Trial Court:

After considering all the evidences produced by the Investigatin Officer , Medical
Report of post-mortem evidences provided by prosecution and prosecution version
of 20 witness in which 7 witness were considered as eye witness .Trial Court
convicted 10 out of 15 accused persons for murder under Sections 148, 302/149, 304,
Part II/149 Part II/109 of Indian Penal Code,1860 and under Section 27 of Arms
Act, 1959. Originally there were 15 accused persons and 5 of them were acquitted by
the Trial Court . They were accused No.- 9 to 13.

The Court found BundevJha (A-1) guilty under IPC section 302 1 and Arms Act,1959
for which the punishment is life imprisonment and RI for 5 years respectively. The
court also held convicted under IPC Section 302 read with Section 141 .BundevJha,
ArjunJha ,ParmanandJha were also granted RI for 3 years under Section
148.Bishnudev Jha, RajendraJha ,DayaNandJha , ArjunJha (A-14) LaloJha
,MadanandaJha convicted under IPC Section 147 for which they were granted RI for
2 years.

High Court:

The Convicted accused personified appeals before the Patna High Court Crl.
Appeal No.-485/89 was filled by 9 accused persons ,while Crl. Appeal No.-521/89
was filled by one accused. After considering the arguments of defence ,Medical
report of post-mortem and Judgement of Trial Court ,the accused persons were held
to be not guilty and acquittal was directed. The evidences of Prosection Witnesses
3,8,11,12 and 15 had been obliterated because they were accused in the counter case.

1
IPC Section 302-Punishment for murder
7
The conviction was held to be bad by the impugned judgement and directed acquittal
on Various reasons.

Supreme Court Of India :

The appeal has been filed by the informant in Supreme Court. After consideration
and analysis of judgementof High Court and Trial Court ,arguments of learned
counsel for the appellant and accused persons, Medical report of post-mortem
forensic Laboratory Report and the version of 20 witness of prosecution.

The Supreme Court held that since the judgement of High Court is practically non-
reasoned ,the same has to be upset and that of the Trial Court which is reasoned ,has
to be restored .The appropriate applicable provision on the facts of the case is Section
304 Part II Indian Penal Code so far as BundevJha (A-1)is concerned . Rest of the
accused persons who were convicted by the Trial Court were convicted by the Trial
Court were implicated by application of Section 149 2 Indian Penal Code.

The appeal were allowed to the extent indicated. The respondent who were on bail
shall be surrendered to custody forthwith to serve the remainder of their sentence, if
any.

Reason for decision

High Court:
The primary stand of the appellant was that the prosecution had not come with clean
hands. When on the night of occurrence the Investigation Officer(PW-16) had
inspected the place, he did not find any blood. In the morning, however, when he
visited the occurrence, he found some blood like substance, but was so scantly that it
was not possible to scrap and forensic examination was ruled out. He also stated that
he had not seen any sign of looting the wheat etc. and there was no mark trampling at

2
IPC Section 149-Every member of unlawful assembly guilty of offence committed in
prosecutionof common object.
8
the spot of occurrence. He further stated that in the night of occurrence, he had
visited the house of DayaNandJha and had found brickbats there.

He further stated that he found trampling marks on the road near the house of
DayaNandJha. According to the accused, the Investigating Officer had exposed the
weakness in the prosecution version and probabilised the defence version. With
reference to the post-mortem report, it was submitted that according to prosecution
the accused fired from a distance of 70-80 ft. The medical evidence was not
consistent with the prosecution case as disclosed in the FIR. The witnesses appeared
to be not reliable because names of some were not indicated in the FIR and some of
the prosecution witnesses were accused in the counter case. It was pointed out that
the Investigating Officer had died during the pendency of the trial and the accused
persons were greatly prejudiced because they were denied the opportunity of cross
examination.

In view of the above conclusions the conviction was held to be bad by the impugned
judgment and directed acquittal. It recorded the following findings:

1.the Investigating Officer who died before completion of his testimony had recorded
objective findings;

2. the place of occurrence might be as has been suggested by the defence;

3. the medical evidence is not consistent with prosecution case as the doctor has
stated in his evidence that gun might have been fired from a distance of 70-80 ft
while the first information report reveals that it might have been fired from a close
range;

4.since the Investigating Officer had died, it had caused prejudice due to non-
examination of the Investigating Officer.

5.there were exaggerations made regarding explosion of bomb and looting.It was
demolished by the findings recorded by the Trial Court who had acquitted the
accused persons of the allegations;

6.he names of PWs. 1, 7 and 8 were not there in FIR;

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7. PWs. 3, 8, 11, 12 and 15 were accused in the counter case; and

8. PWs. 3, 6 and 9 appeared to have helped the informant in accompanying PW 15

while he was taking injured to the hospital and they were not eyewitnesses.

Supreme Court Of India:

Most of the conclusions arrived at the by the High Court are per se not on sound
footing. The appellate Court will not abjure its duty to prevent miscarriage of justice
by interfering where interference is imperative.
Where doubt is based on irrelevant grounds or where the Court allows itself to be
deflected by red herrings drawn across the track, or where the evidence accepted by
the Trial Court is rejected by the High Court after a perfunctory consideration or
where the baneful approach of the Court has resulted in vital and crucial evidence
being ignored or for any such adequate reason, the Court should feel obliged to
secure the ends of justice, to appease the judicial conscience, as it were. The High
Court has noted that the names of witnesses do not appear in the first information
report. That by itself cannot be a ground to doubt their evidence as noted by this
Court in Bhagwan Singh and Ors. v. State of M.P. 3 , ChittarLal v. State of Rajasthan
and State of Madhya Pradesh v. Man Singh and Ors. There is no requirement of
mentioning the names of all witnesses in the first information report. No reasons has
also been indicated by the High Court as to why the evidence of PWs. 3, 8, 11, 12,
and 15 was to be obliterated merely because they were accused in the counter case.
In a case of this nature, when counter case has been registered, the Court hearing the
same has to scrutinize the evidence with greater detail and even in such a situation
the evidence which is cogent, credible and trustworthy cannot be totally wiped out
because of the only circumstance that they were accused in the counter case.
Additionally, we find that PWs. 3, 6 and 9 have not been merely described in the first
information to have taken the deceased to the hospital, as observed by the High

MANU/SC/0218/2002 : 2002CriLJ2024
3

10
Court. A bare reading of the first information report clearly shows that they were
described as eyewitnesses also. Here again, the High Court has committed an error.
Mere non-examination of Investigating Officer does not in every case cause
prejudice to the accused or affects the creditability of the prosecution version. In
Ram Dev and Anr. v. State of U.P. , it was noted that non-examination of the
Investigating Officer does not in any way create any dent in the prosecution case
much less affect the credibility of otherwise trustworthy testimony of the eye
witnesses. It was, however, indicated that it is always desirable for the prosecution to
examine the Investigating Officer. In the present case after examination-in-Chief and
partial cross-examination, the Investigating Officer had died. Therefore, this cannot
be a case which can be stated to have caused any prejudice to the accused on account
of Investigating Officer's non-examination. The prosecution cannot been attributed
with any lapse or ulterior motives in such circumstances. In Behari Prasad and Ors.v.
State of Bihar 4it was held that case of prejudice likely to be suffered mostly depends
upon facts of each case and no universal straight jacket formula should be laid down
that non-examination of Investigating officer per se vitiates the criminal trial. The
said view has been found echoed in Ambika Prasad and Anr. v. State (Delhi
Administration).

One salient feature of the case is, there was only one gunfire by BundevJha
from a considerable distance as per the prosecution version. Here again, the High
Court has fallen into an error by observing that the fire was done from a close range
as if the prosecution version was that. On the contrary, right from the beginning the
prosecution version is that the gun was fired from about a distance of 70-80 ft.
On that score also the High Court's conclusion that the medical evidence varied with
the ocular evidence suffers from vulnerability. Taking into account the fact that the
only shot was fired from a considerable distance in this case application of Section
302 IPC is ruled out, though there cannot be any rule that whenever one shot is fired
from a distance, Section 302 IPC would not be applicable. It would depend upon the
nature of the gun, the position of the assailant and the victim, obstructions from any
intermediary object which may cause deflection of the shot and several other relevant
4
MANU/SC/0752/1996 : 1996CriLJ1653
11
factors. The appropriate applicable provision on the facts of the case is Section 304
Part II IPC so far as BundevJha (A-1) is concerned. Rest of the accused persons who
were convicted by the Trial Court were implicated by application of Section 149
IPC.

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Conclusion:After analyzing the case I can conclude that this case is
related to unlawful assembly and with an unlawful assembly having a deadly
weapon. In this Raj Kishore and Nawal Kishore was on walk and they saw an
unlawful assembly carrying with deadly weapons. Nawal Kishore interfere in a
unlawful assembly and he was shot dead.

The accused were held liable under Section 304 of the IPC.
In my view , Trial Court gave the true judgement on facts as well as the
law.Out of 15 accused persons 10 found guilty.

The accused person went on appeal to the higher court i.e. High Court Of
Patna. The High Court of Patna after considering the arguments of defence
,Medical report of post-mortem and judgement of Trial Court the accused
persons were found not guilty and acquittal was directed. The judgement of
High Court in my view was unreasoned ,unjust and impractical also.

At last The Supreme Court Of India considering all the facts and evidences

that the judgement of Patna High Court is practically non-reasoned, the same

has to be upset and that of the Trial Court which is reasoned, has to be
restored.

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Bibliography:

Text-Books:-

1. The Indian Penal Code (45 of 1860)

Published by:- Professional Book Publishers (New-Delhi)
Subject:- Bare act, Indian Penal Code
Year:- 2016

2. Indian Penal Code

Author:- Prof. S.N. Misra
Published by:- Central Law Publications ( Allahabad)
Year:- 2013 (19th Edition)

3. Criminal Law
Author:- K D Gaur
Published by:- Lexis Nexis (Greater-Nodia)
Year:- 2015 (8th Edition)

Websites:-

1. www.lawyerservices.com

2. www.indiankanoon.org

3. www.kanoon.com

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