Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.242 of 1990 =========================================================== Sk.Ilias @ Ilwa, son of Sk. Jahir, resident of village-Siswa, P.S.-Jokihar, District- Purnea. .... .... Appellant/s Versus State .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Ashok Priyadarshi, Adv. (A.C.) For the State : Mr. Siwesh Chandra Mishra, APP. =========================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA And HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 18-09-2012 1. Challenge in this appeal is to a judgment dated 5th April, 1990 passed by Sessions Judge, Purnea in Sessions Trial No.41 of 1987 whereby and where under sole appellant Sk. Ilias alias Ilwa has been found guilty for an offence punishable under [STATUTE] and sentenced to undergo R.I. for life. 2. Telltale of prosecution case begins with institution of First Information Report (Ext.-3) by Md. Ishaque (PW-5) wherein he had stated that on the same day when he along with his uncle Ainul, son of Sk. Himja Ali, had gone to market and had also visited toddy shop of Halim they had found appellant Md. Ilwa present since before. It has been alleged the appellant on seeing Md. Ainul, began to abuse him and had also threatened him of being taught a lesson then and there, for getting him disrobed of his lungi at Araria whereafter he also began to assault Patna High Court CR. APP (DB) No.242 of 1990 dt.18-09-2012 2 Ainul. But before it could have turned into a nasty event the situation was averted on the intervention of Sk. Halim the toddy shopkeeper who along with Md. Ajim and others had asked them to leave the place. According to the informant, they had proceeded from the toddy shop but no sooner they had covered a distance of 200 yards west therefrom and had reached on a road, the appellant, Ilwa having Chhura in his hand came running and pierced it in the left side of the chest of Md. Ainul as a result whereof he fell down and when the informant had tried to apprehend the appellant Ilwa, he too was inflicted Chhura blow leading to cut injuries in the fingures of his right hand. The informant had claimed while appellant Ilwa having caused injuries had fled away, Md. Ainul had met his instantaneous death at the spot. The motive for such occurrence in the fardbeyan of the informant is that in the previous month of Ramjan while his uncle Ainul (deceased) had gone to offer Alwida Namaz, the appellant Md. Ilwa had stolen away a wrist watch of a Maulwi and for that his body was searched by stripping of his clothes at the instance of deceased and during course thereof the aforesaid stolen wrist watch was recovered from his possession leading to his being severely reprimanded and thus the occurrence in question was committed by the appellant to avenge that humiliation suffered by him in the hands of the appellant. 3. On the basis of the aforesaid fardbeyan Jokihat P.S. Case No. 18 of 1986 was registered under [STATUTE] whereupon the investigation commenced and the police after completing the same, had submitted a charge sheet which was followed by orders Patna High Court CR. APP (DB) No.242 of 1990 dt.18-09-2012 3 taking cognizance and commitment of the Court of Sessions whereafter completion of trial, he having been convicted by the impugned judgment has filed this appeal. 4. The defence case as is evident from mode of cross- examination as well as statement of the appellant recorded under Section 313 of the Cr.P.C. is one of innocence as well as complete denial of occurrence in the manner alleged but neither any defence witness was examined nor any document has been exhibited on his behalf. 5. While assailing the impugned judgment of conviction and sentence recorded by the trial court, it has been submitted Mr. Ashok Priyadarshi learned counsel on behalf of the appellant that the learned lower court should have considered that the prosecution case actually was suffering from inherent infirmities. In this regard, it has been submitted that save and except PW-5, the informant, none happens to be an eyewitness to the occurrence and as such when his evidence is both sketchy and shaky the trial court ought to have rejected it altogether. It has also been submitted that the place of occurrence as flashed by the prosecution could not be established in the evidence of PW-5 then only eyewitness to the occurrence specially when the same happens to be near the village market located in village-Jokihat and thus in absence of any of the witness, other than PW-5 who being informant had claimed himself to be sole eyewitness of occurrence is actually suggestive of the fact that neither any occurrence took place at the place of occurrence as was suggested by the prosecution much less in the manner alleged by PW-5. Patna High Court CR. APP (DB) No.242 of 1990 dt.18-09-2012 4 6. It has further been submitted that neither the toddy shopkeeper Sk. Halim nor the other person namely Ajim whose presence in shop was admitted in the fardbeyan of PW-5 was claimed by way of genesis to the occurrence has been examined on behalf of prosecution and thus the presence of appellant in the toddy shop since before arrival of informant along with deceased Ainul has not at all been established and prosecution case in absence of any independent corroboration cannot be believed. In this regard it has been also submitted that non-examination of the I.O. happens to be an additional ground in rejecting the prosecution version because of the fact that on account of non-examination of IO serious prejudice has been caused to the appellant due to his being an opportunity to cross-examine the IO on his objective finding relating to place of occurrence as well as with regard to fatal lapses committed duing course of investigation. The c

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.