Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.375 of 1990 =========================================================== Anil Pathak, son of Ram Avtar Pathak, resident of village Narauli, P.S. Darauli, District Siwan .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant/s : Mrs. Nutan Mishra, Amicus Curiae For the Respondent/s : Mr. Ajay Mishra, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Date: 14-12-2012 This appeal is directed against the judgment of conviction and sentence dated 19.7.1990 passed by the Addl. Sessions Judge IV, Siwan in S.Tr.No. 49/1986 whereby and whereunder the sole appellant Anil Pathak has been convicted for offence under [STATUTE] and sentenced to undergo Rigorous Imprisonment for life. 2. The prosecution case in nut shell as per version of the informant Jaleshwar Mishra (P.W.10) in his Fardbeyan given to the Police Officer on 18.4.1984 at 8.45 P.M. is that he on the same day at 7.30 P.M. while he was returning to his Bathan and house alongwith his uncle Ramanand Mishra (deceased) and had reached near the Darwaja of his house, he had seen one Shambhu Pathak (co-accused), Patna High Court CR. APP (DB) No.375 of 1990 dt.14-12-2012 2 since acquitted, with his brother appellant Anil Pathak standing near their Thrasher machine. The informant has stated that his uncle Ramanand Mishra had asked Shambhu Pathak to stop operating the Thrasher machine, inasmuch as the ladies of his house were to go out to ease themselves. Shambhu Pathak, however, is said to have declined to stop operating the Thrasher machine and challenged his uncle that he would be killed if any further resistance was made by him and having said that Shambhu Pathak had asked his brother appellant Anil Pathak to bring Bhala for finish him. The informant has also alleged that Anil Pathak went running to his house and brought two Bhala out of which one he had kept for himself and he had given the other one to Shmabhu Pathak. As per the informant while his uncle Ramanand Mishra had ran away to his Darwaja the appellant Anil Pathak had given a Bhala blow on his uncle Ramanand Mishra in his chest causing bleeding injury in his chest as a result whereof he had fallen down, whereafter co-accused Shambhu Pathak, since acquitted, had given a blow reversing the Bhala on Ramanand Mishra. The informant has further alleged that he too was chased, as a result whereof the informant ran away to his house and had closed his door. The informant has stated that thereafter both Shambhu Pathak as well as appellant Anil Pathak had fled away and the informant having come out of his house had seen his uncle Ramanand Mihsra dead over Patna High Court CR. APP (DB) No.375 of 1990 dt.14-12-2012 3 there. 3. The informant in his fardbeyan has claimed that the aforesaid occurrence was witnessed by his another uncle Krishnadeo Mishra (P.W.2) as also Chandeshwar Pandey (P.W.7) and Ganga Prasad Pandey (not examined) as well as other villagers who could narrate about the occurrence. The said fardbeyan was signed by Krishnadeo Pandey (P.W.2) as an attesting witness, whereafter the police had instituted a police case and after investigation had submitted the charge sheet both against the appellant Anil Pathak as well as co-accused Shambhu Pathak. In the consequential trial while the trial court by the impugned judgment had acquitted Shambhu Pathak, it had convicted and sentenced the appellant Anil Pathak in the manner indicated above. 4. In this case we had to appoint Mrs. Nutan Mishra, an Advocate of this Court to appear as Amicus Curiae in absence of counsel who had filed this appeal on behalf of the sole appellant. Mrs. Mishra while assailing the impugned judgment has submitted that there is no eye witness to the occurrence and the sole appellant has been falsely implicated on account of old agnatic enmity. Proceeding further she has concentrated on the aspect that the motive of occurrence as with regard to stopping operation of Thrasher has not at all been proved, inasmuch as the witnesses have accepted that there is Patna High Court CR. APP (DB) No.375 of 1990 dt.14-12-2012 4 a toilet in the house of the informant and as such, the story of stopping of operation of the Thrasher machine for enabling the ladies to go out for easing themselves is itself falsified. As with regard to the main occurrence she has taken us to the evidence for establishing that neither the place of occurrence nor the manner of occurrence as suggested by the prosecution has been established. She has also pointed out to certain discrepancies committed by the Investigating Officer which we shall take note of at the relevant place. 5. Mrs. Mishra, however, was quite sanguine that once the trial court had acquitted co-accused Shambhu Pathak, it could not have convicted and sentenced the sole appellant Anil Pathak on the same set of evidence, inasmuch as if the prosecution case was falsified in respect of Shambhu Pathak, its effect had also to be given while considering the case of the appellant Anil Pathak. She has accordingly summed up her submission by canvassing that the judgment of conviction and sentence of the sole appellant cannot be sustained either on fact or in law. 6. In an alternative argument she has referred to paragraph no.34 of the judgment to contend that once the trial court had itself come to a conclusion that the alleged assault on the deceased Ramanand Mishra was on account of sudden out burst of an anger, the conviction of the sole appellant under [STATUTE] . cannot be Patna High Court CR. APP (DB) No.375 of 1990 dt.14-12-2012 5 sustained, inasmuch as the case against the appellant Anil Pathak at best could be one under sec

Applicable IPC Section: 302

Statute Text:
Section 302 of the Indian Penal Code. Murder. Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.