Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.1068 of 2011 *** [Against the judgment of conviction dated 26.09.2011 and order of sentence dated 27.09.2011 passed by the Additional Sessions Judge, 1st, Gaya, in Sessions Trial No.10 of 2011/395 of 2008(SJ) arising out of Tekari P.S. Case No.110 of 1999] *** =========================================================== Mithilesh Yadav, S/O Madan Yadav, resident of village- Idinpur, P.S.- Tikari, District- Gaya .... .... Appellant Versus The State of Bihar .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. A. K. Thakur, Mr. Ravi Ranjan and Mr. Shashank Thakur, Advocates For the State : Mr. A. K. Sinha, APP =========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA & HONOURABLE JUSTICE SMT. ANJANA PRAKASH CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE HEMANT GUPTA) Date: 12 -05-2016 The present appeal is directed against the judgment dated 26th September, 2011 passed by learned Additional Sessions Judge 1st, Gaya, in Sessions Trial No. 10 of 2011/395 of 2008 (S.J.), convicting the appellant for the offence under [STATUTE] and Section 27 of the Arms Act, as also the order of sentence dated 27th September, 2011 sentencing the appellant to undergo imprisonment for life for the offence punishable under [STATUTE] and rigorous imprisonment for one year for the offence under Section 27 of the Arms Act. Patna High Court CR. APP (DB) No.1068 of 2011 dt. 12-05-2016 2/30 2. The prosecution case was set in motion by Nathun Yadav. He stated that on 2nd October, 1999 at 6.00 AM after he woke up and came to the door to his house then he saw Sunaina Devi, wife of the appellant, opening the drain. Raja Yadav, his brother, asked her not to open the drain but she refused and began to demolish the “Nad”. Raja Yadav tried to prevent her to do so, whereupon Sunaina Devi threw a spade upon him. Raja Yadav received injury on his arm. He asked them not to quarrel with the ladies. At that time, Nadlu Yadav came there. At the same time, Mithilesh Yadav also came down from his house and fired a shot at him with pistol. The shot hit on the neck of Nadlu Yadav. Nadlu Yadav fell down. Then Sukendra Yadav and Madan Yadav came there carrying on lathi and khanti and began to assault him. He received injury on his head. The cause of dispute is said to be 7 decimals of his land in front of the house of the appellant over which he wanted to take forcible possession. 3. On the basis of such statement, an F.I.R. (Ext.2) was recorded and the investigation was set at motion. On completion of the investigation, the accused was made to stand trial. 4. The prosecution examined PW 1 Ram Pravesh Choudhary and PW 2 Mahendra Yadav. But both the witnesses turned hostile. Nathun Yadav, the informant, was examined as PW 3, Shailendra Yadav as PW 4, Kamaldeo Yadav as PW 5, Raja Yadav as Patna High Court CR. APP (DB) No.1068 of 2011 dt. 12-05-2016 3/30 PW 6, Kanti Devi as PW 7 were examined in support of the prosecution story, whereas Dr. Arvind Prasad was examined as PW 8 to prove the post mortem conducted by Dr. Ashok Kumar Yadav. On completion of the prosecution evidence, the statements of the accused under Section 313 CrPC were recorded. The accused examined Mithu Yadav, DW 1, in his defence. On the basis of the evidence led, the learned trial court found the appellant guilty of the offence under [STATUTE] and convicted and sentenced him as mentioned above. 5. Learned counsel for the appellant has argued that all the witnesses are interested witnesses being members of the same family, therefore, their evidence is of interested and unreliable witnesses. It is also argued that the doctor who has conducted the post mortem examination has not been examined nor there is evidence that he was not available or could not be produced without unreasonable delay or expense, therefore, statement of PW 8 Dr. Arvind Prasad, who has identified the handwriting and signature of Dr. Ashok Kumar Yadav will not be sufficient proof of the post mortem report. It is also argued that Investigating Officer has not been examined nor the First Information Report produced in evidence by the informant but has been accepted in evidence by the court subsequently. Because of such legal infirmity, the prosecution has failed to prove the charge against Patna High Court CR. APP (DB) No.1068 of 2011 dt. 12-05-2016 4/30 the appellant beyond reasonable doubts. 6. All the witnesses of the occurrence deposed that the occurrence took place early in the morning at 6 O’ clock. At the time, the persons who are residing in the nearby location alone would be available. PW 3 Nathun Yadav, the informant, is the brother of the deceased. Since the occurrence took place outside the house of the informant, his presence cannot be doubted. So as the presence of his younger brother Raja Yadav, whose name was mentioned by the informant in the FIR itself. PW 3 Nathun Yadav deposed the manner of firing shot by Mithilesh Yadav upon Nadlu and that Nadlu was taken to Patna for treatment but he died. Similarly, the statement of PW 6 Raja Yadav that Nadlu was fired upon by Mithilesh and he died on account of fire arm injury. The statements of these two witnesses are corroborated by PW 4 Shailendra Yadav who deposed that it was Mithilesh who fired upon Nadlu. This is on account of such fire injury Nadlu died. PW 7 Kanti Devi also deposed that Mithilesh came out from his house and fired from his pistol on Nadlu’s neck and he died thereafter. PW 5 Kamaldeo Yadav, father of PW 4, is not an eye- witness as he came to the place of occurrence later on. Therefore, PW 3 Nathun Yadav, PW 4 Shailendra Yadav, PW 6 Raja Yadav and PW 7 Kanti Devi are consistent and categorical that it was the fire shot by Mithilesh on Nadlu which took his life. Patna High Court CR. APP (DB) No.1068 of 2011 dt. 12-05-2016 5/3

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.