IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (SJ) No. 163 of 1999 === Against the judgment of conviction dated 17.6.1999 and order of sentence dated 19.6.1999 passed in Sessions Case No. 305 of 1992 by Sessions Judge, Katihar. **** Sk. Hasimudin .... .... Appellant Versus The State of Bihar .... .... Respondent === For the Appellant: Mr. S.N.Prasad (Amicus Curiae) For the Respondent: Mr. Ajay Mishra, A.P.P. === P R E S E N T THE HON’BLE MR JUSTICE MANDHATA SINGH **** J U D G E M E N T Mandhata Singh,J. Written report of the informant Sk. Chuttu @ Bhuttu is made basis for the F.I.R. which in short is that on 18.1.1992 at about 9.30 PM there cropped up a quarrel in between the informant and the appellant along with Jainuddin for land. They abused which the informant protested. Ashiruddin ordered to teach a lesson complying thereon all the accused persons entered informant’s courtyard, surrounded him, attempted to cause assault, his wife Gulejan with a baby in her lap came, intervened just to rescue her husband which was reacted by the accused appellant in pushing her to down along with her child, result was falling down of the child on earth and her death, thereafter accused persons including this appellant Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011 2 left the place. 2. After concluding the trial, appellant is only convicted for the offence under section 323 and 304/34 of the Indian Penal Code, by passing impugned judgment and order of conviction and sentence validity of which has been questioned through filing of this appeal. 3. In all six witnesses were examined. They are P.W.1 Sk. Jalaluddin, P.W.2 Chuttu @ Bhuttu informant of the case, P.W.3 Samiruddin brother of the informant, P.W.4 Gulejan wife of the informant, P.W.5 Doctor and P.W.6 the I.O. of the case. 4. All the four material witnesses namely P.Ws 1,2,3 and 4 are constant on the point that Gulejan was pushed by this appellant. She fell down with her child in lap which resulted into the death of the child. They are from the same family, may be said interested raised in the trial court also but rightly has been replied that it was 9.30 PM of the month of January in rural area, possibility of coming of others was rare so, there was no reason to disbelieve or doubt these witnesses about pushing the lady which has been taken for constituting offence under section 323 and 304 of the Indian Penal Code. Doctor is on the point of death of the child who conducted post mortem on dead body of the child and I.O. of the case is on the point that Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011 3 investigation was fair and in their statement (examination in chief or cross examination) also no infirmity is found. 5. Submission of learned counsel for the appellant is specific on the point that the act alleged and established does not constitute the offence under section 304 of the Indian Penal Code as intention or knowledge is lacking, more specifically it is said that intention at all was lacking for Gulejan even that she was to be killed. Nature of injury would constitute offence under section 304 of the Indian Penal Code about having knowledge that act of pushing would result in her death which also was done while she came in rescue of her husband is her chief is doubted. She was not assaulted in any other way, admittedly no harm was to be caused to the child in her lap nor any direct act was done to harm the child. It only can be said that a lady was pushed but no care was taken that a child was also in her lap, if that is taken into consideration, constitution of offence under section 304 of the Indian Penal Code does not arise. Section 304 of the Indian Penal Code runs as follows: “304.Punishment for culpable homicide not amounting to murder.-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 Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011 4 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.” 6. Part I describes the act with intention and part II describes the act with knowledge and both are found lacking in this case then section 304A of the Indian Penal Code comes in existence that is act of rash and negligence. In the instant case simple negligence is there as discussed above that no care was taken for remaining of a child of one year in lap of Gulejan wife of the informant. 7. Both the offences under section 304 and 304A of the Indian Penal Code are similar in nature so, offence under section 304 of the Indian Penal Code easily can be accepted for section 304A of the Indian Penal Code of lesser seriousness. Submission of learned Amicus Curiae is that if the offence committed is accepted under section 304A of the Indian Penal Code then Court is to consider the sentence for the offence under sections 323 and 304A of the Indian Penal Code for which appellant remained in custody from 28.6.1992 to 31.7.1992 and from 19.6.1999 to 19.7.1999 sufficient to meet the justice end sentence which also I agree. Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011 5 8. In the result, the appeal is allowed in part. Conviction for the offence under sections 304 and 323 of the Indian Penal Code is converted into one under sections 304A and 323 of the Indian Penal Code and on the point of sentence the period already undergone by the appellant is observed sufficient. 9. The appellant shall stand discharged from his liability of bail bond. 10. Copy of judgment along with lower court records be sent back to the trial court forthwith. 11. Copy of 1st page and last page of the judgment be handed over to learned Amicus Curiae for needful. ( Mandhata Singh, J.) PATNA HIGH COURT Dated 22.12.2011 AI/ AFR