Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.370 of 1990 =========================================================== Sudisht Rai, S/o Rupann Rai, Resident of Village Madhopur-Hazari, P.S. Sahebgunj, Dist. Muzaffarpur. .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Amish Kumar, Amicus Curiae For the Respondent : Mis. Shashi Bala Verma, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA) Date: 04-09-2012 The sole appellant, having been convicted for offence under [STATUTE] . and sentenced to undergo rigorous imprisonment for life by the impugned judgment dated 24.8.1990 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No. 51 of 1989 has filed this appeal. 2. The prosecution case in short giving rise to the impugned judgment of conviction and sentence lies in a very narrow compass. The informant Megha Rai (P.W.5) in his Fardbeyan to the police recorded on 1.5.1985 at 10.15 A.M. had stated that in the early morning at 6.30 A.M. on 1.5.1985, there was an altercation with regard to plucking of mangos from the mango tree situated in the plot of his house. In this regard, he had given detailed narration of the incident taking place in the morning wherein the son of the appellant Ram Pravesh Rai was claiming to be plucking the mangos from the mango tree allegedly belonging to the prosecution party and it is said that when the mother of Patna High Court CR. APP (DB) No.370 of 1990 dt.04-09-2012 2 the informant had seen the son of the appellant plucking mangoes, she had forbidden him not to do so and had also warned the appellant and his wife as with regard to plucking of mango by the son of the appellant. The informant has stated that it was thereafter only that the wife of the appellant had started hurling abuse in the name of the mother of the informant and when the mother of the informant had made a protest as with regard to being abused in respect of her mangos being plucked by the son of the appellant, the appellant also is said to have joined his wife and started hurling abuse on the mother of the informant. It is said that when the appellant had intervened and had started hurling abuse, the brother of the informant Chandrika Rai (deceased) had arrived at the place and had forbidden the appellant not to abuse his mother and on this, firstly the wife of the appellant having brought a Lathi had given a blow on the brother of the informant Chandrika Rai and when his brother had caught hold of the Lathi, the appellant having brought a Bhala had given a blow in the chest of Chandrika Rai. 3. It is said that the injury caused by Bhala by the appellant had made his brother Chandrika to run away by pressing his wound from his own hand whereafter he was made to lie on a mat in his house (Palani) and then arrangements were being made for his being taken to Sahebganj Hospital and he (Chandrika Rai) had succumbed to his injury within five to ten minutes of the assault. The informant in his Fardbeyan had named Ramadhar Rai (not examined), his own mother Sonafi Kuer (P.W.9), his Bhabhi Gyanti Devi (P.W.1), Gagan Deo Rai (P.W.7), Kishun Rai (P.W.11), Pasa Rai (PlW.2) and Wakil Rai (P.W.3) to be the persons who had seen the occurrence. The said Fardbeyan was also recorded in the presence of village Mukhia (P.W.4) and one Shambhu Singh (not examined) and had resulted into institution of Sahebganj P.S. Case No. 36 of 1985. Patna High Court CR. APP (DB) No.370 of 1990 dt.04-09-2012 3 4. The police, having instituted the said case, had ultimately submitted a charge-sheet against the appellant and after the case was committed to the court of sessions, the present Sessions Trial No. 51 of 1989 was instituted and constructed wherein the sole appellant was convicted and sentenced in the manner indicated above leading to filing of this appeal. 5. In view of the fact that the learned counsel for the appellant who had filed this appeal had remained absent, this Court had requested Mr. Amish Kumar, an advocate of this Court, to appear as Amicus Curiae. 6. Mr. Amish Kumar, while assailing the impugned judgment, has submitted that the prosecution case would not inspire confidence, inasmuch as, the informant, who claimed to be an eye witness, had turned hostile and the two lady witnesses PW1 and PW9 who according to the informant had arrived at the place of occurrence only after the actual assault had taken place could not be relied as eye witnesses either with regard to the place or manner of occurrence. He has also criticized the evidence of other eyewitnesses who according to him had also arrived at the place of occurrence after the fatal blow was already given on the deceased. Apart from the criticism of the witnesses, Mr. Kumar has also stated that when there was clinching evidence in the form of deposition of D.W.1, the Amin that the mango tree, in question, on account of which the entire occurrence is said to have taken place, had actually belonged to the appellant and his family members as such the prosecution case could not have got any support even on the point of genesis. 7. He has also submitted that even if the allegation of manner of assault against the appellant is accepted to be true, the absence of corresponding injury in the hands of the deceased on account of blow given by the wife of the appellant would further belie on the manner of occurrence. He has also tried to Patna High Court CR. APP (DB) No.370 of 1990 dt.04-09-2012 4 make out a case that as it was a free-fight on account of sudden provocation and without premeditation and the offence alleged against the appellant would not be one under [STATUTE] . but only under [STATUTE] . In this regard he has also placed

Applicable IPC Section: 304

Statute Text:
Section 304 of the Indian Penal Code. Culpable homicide not amounting to murder, If act by which the death is caused is done with intention of causing death, etc. Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.