Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.538 of 2005 (Against the judgment of conviction and order of sentence dated 19.07.2005 of Mr. Brajendra Kumar Srivastava, learned Additional Sessions Judge, F.T.C.IV, Nawada in Sessions Trial Case No.112/1992/223/2004) =========================================================== Musafir Mahto, son of Late Baleshwar Mahto, resident of village- Amanan, P.S.- Rajauli, District- Nawada. .... .... Appellant/s Versus The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mr. Ram Narayan Pandey, Advocate : Mr. Krishna Murari Rawat, Advocate For the Respondent/s : Mr. Ashwini Kumar Sinha, Add.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA And HONOURABLE MR. JUSTICE AMARESH KUMAR LAL ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA) Date: 27-09-2012 The sole accused-appellant Musafir Mahto has appealed against the judgment of conviction and order of sentence dated 19.07.2005 of the learned Additional Sessions Judge, F.T.C.IV, Nawada in Sessions Trial Case No.112/1992/223/2004 whereby the appellant has been convicted under [STATUTE] . and has been sentenced to undergo imprisonment for life and to pay a fine of Rs.5000/- and in default of fine, simple imprisonment for one year. 2. On 1.04.1992 at 8.00 A.M. Sahdeo Mahto (deceased), husband of Chinta Devi (informant- P.W.7) was fatally Patna High Court CR. APP (DB) No.538 of 2005 dt.27-09-2012 2 injured by his own brother Musafir Mahto (appellant) on account of quarrel amongst the ladies of the house. The informant’s husband wanted unity in the family, but it was not being liked by other co- parcener. In course of scuffle, the appellant gave a hand pumps handle blow upon the head of Sahdeo Mahto, who received injuries. On cry of informant P.W.7, neighbour Badri Mahto (not examined), Shankar Mahto (P.W.2), Suresh Singh (P.W.3), Tilak Mahto (P.W.1) and others came there and saw the occurrence. The Fardbeyan (Ext.4) was recorded in the village which resulted into formal FIR (Ext.3) of Rajauli P.S. Case No.47 of 1992 dated 1.04.1992 under [STATUTE] . against the sole accused/appellant. The FIR/ G.R. No.410/92 was investigated into. In course of investigation, inquest report (Ext.5) was prepared. The post-mortem examination report (Ext.2) was obtained. Seizure (Ext.1) was made. In view of transfer of the Investigating Officer, another Investigating Officer joined and his investigation (Para 34-52 Ext.6) came on the record, but only one I.O. was examined. After investigation, charge-sheet was submitted. The cognizance was taken and the case was committed to the Court of Sessions where the charge under [STATUTE] . was explained to the accused and when he pleaded innocence, the trial proceeded. 3. In course of trial, the prosecution has examined ten Patna High Court CR. APP (DB) No.538 of 2005 dt.27-09-2012 3 witnesses: P.W.1 Tilak Mahto, P.W.2 Shankar Mahto, P.W.3 Suresh Singh, P.W.4 Raj Kumar Singh, P.W.5 Dwarika Singh, P.W.6 Birendra Prasad, P.W.7 Chinta Devi, P.W.8 Dr. Bisheshwar Ram, P.W.9 Shivnarayan Prasad and P.W.10 Sahdeo Yadav. The defence has examined two witnesses: - D.W.1 Chameli Devi and D.W.2 Moti Mahto. 4. P.Ws.1, 2, 3, 4, 5 and 6 have not at all stated anything about the occurrence and they have expressed complete ignorance, so they have been declared hostile and on the prayer of the prosecution, they were allowed to cross-examine in which they declined the suggestion of the prosecution of making any statement under Section 161 Cr.P.C. before the police. P.W.9 is a formal witness who has proved the pen and signature of P.W.10 on the formal FIR (Ext.3). The only material witness of the case remained the informant Chinta Devi, who lost her husband in the occurrence. Her evidence is being dealt with. 5. While deposing in the court, P.W.7 Chinta Devi has stated that she was having some altercation with her Gotani in the morning. Both were separately cooking since last three days that was bone of contention between two. The informant’s husband was insisting for jointness. When P.W.7 went to prepare tea, then it was disturbed by her Gotani Kumari Devi. This resulted into altercation Patna High Court CR. APP (DB) No.538 of 2005 dt.27-09-2012 4 between two brothers i.e. the accused and the deceased. The appellant opened the handle of hand pump and strike it upon the head of deceased, who fell down and died. On cry of the informant, some persons came and witnessed the occurrence. Thereafter, she went to the police station, where Fardbeyan was recorded and she put her thump impression thereupon. 6. The Investigating Officer has stated that he went to the place of occurrence and recorded fardbeyan of Chinta Devi there and investigation started immediately thereafter. His evidence is that fardbeyan was recorded in the P.O. village and not at the police station. He claims to have seized the handle of tube well, but he has not mentioned in the case diary. It is surprisingly as to how he stated his fact that he has seized the handle of the tube well. The alleged handle of the tube well has been used as a weapon in the present case and oral evidence has suggested that it was seized. The corresponding entry must have been made in the case diary, but I.O. declines it. It can be safely inferred that in fact the handle was not seized. The handle was not brought before the court. 7. The Doctor holding the post-mortem examination on the dead body of Sahdeo Mahto has stated that the post-mortem examination was performed on 1.04.1992 i.e. the date of occurrence itself and the doctor has found corresponding injury. The death was Patna High Court CR. APP (DB) No.538 of 2005 dt.27-09-2012 5 within 6 to 36 hours. The time of death and manner of death as stated by the informant has been supported by the

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.