CRIMINAL APPEAL No.287 OF 2009 ----- Against the judgment dated 20.12.2008 passed by the Additional Sessions Judge, Fast Track Court No.2, Patna, in Sessions Trial Case No. 1053 of 2004/ Tr. No. 165 of 2004, G.R. Case No. 477 of 2004, arising out of Chowk P.S. Case No. 63 of 2004. CHATUR BHUJ MAHARAJ-----------------------------------------------(Appellant) Versus THE STATE OF BIHAR----------------------------------------------(Respondents) ---- For the Appellant : Mrs. Asha Kumari, Amicus Curiae P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH ------- Anjana Prakash J The appellant has been convicted for the offence under section 304 part 2 of the Indian Penal Code ( hereinafter referred to as “the Code) and sentenced to undergo six years imprisonment for having caused the death of Ramji Malakar. The appellant was initially also charged for the offence under section 307 of the Code for attempting to cause murder of Ganeshji Malakar but has been acquitted for the said charges. 2. The prosecution had examined altogether 13 witnesses, out of whom P.W. 1, Dilip Kumar, fully supported the case and that the appellant threw brickbat due to which Ramji Malakar sustained injury on his head and thereafter died. P.W. 2 ,Sajjan Malakar, did not name the appellant but identified him in court as being the person who had thrown the brickbat. P.W. 3, Ganesh Malakar, the grand son of the informant, is also - 2 - an eye witness and stated that on the date of occurrence the appellant threw a brickbat on his grand father due to which his grand father sustained injuries and died two days later in the hospital. P.W. 4, Ravi Shankar Prasad Singh, is a hearsay witness who stated that he heard on going to the place of occurrence that it is the appellant who had thrown the brickbat from his roof which injured the deceased, Ramji Malakar who died later on . P.W. 5, Sukhdeo Gope, is a witness on the point of the occurrence and that he had seen the injured, Ramji Malakar at the place of occurrence and the appellant threw brickbat. P.W. 6, Srinath Mishra, is a hearsay witness who stated that he came to know about the occurrence and that it was the appellant who threw the brickbat due to which the deceased died two days later. P.W. 7, Raju Malakar is the son of the deceased who also fully supported the prosecution case and that on the date of occurrence the appellant had thrown a brickbat on the head of his father due to which he later died. P.W.8, Arun Kumar Verma, is a hostile witness ,whereas P.W. 9, Sunil Kumar Malakar who is also the son of the deceased, gave his evidence to the effect that the appellant threw brickbat at his father which injured him and caused his death two days later. P.W. 10, Arvind Kumar Singh is the doctor at P.M.C.H. who conducted postmortem and found injury on the head which caused the death of Ramji Malakar. P.W. 11, Anil Malakar, is a formal witness who stated that he saw his father injured and - 3 - later he brought him to the hospital. P.W. 12, Dr. Arti initially examined the deceased Ramji Malakar and found simple injury on his person. P.W. 13, Ambika Prasad Singh, is a formal witness. The defence examined one Asha Devi, wife of the present appellant that in fact it was the prosecution which had acted in a highhanded manner and in fact the deceased had sustained injury in the hands of the witnesses themselves. In the present transaction even the appellant had sustained the injury and an F.I.R. had been instituted, vide Ext.A in which charge-sheet was submitted vide Ext. B. On going through the evidence of the witnesses, stated above, there is no manner of doubt that the prosecution has fully corroborated the prosecution case that initially a dispute took place on account of sale of Ice-cream and thereafter all the witnesses stated that it was the appellant who threw brickbat from the roof of the house and due to which the deceased sustained injury and died later on. Even the medical evidence of the two doctors, P.Ws. 12 and 10 fully corroborates the factum of the deceased having sustained head injuries. Even though the defence has come out with a case that the occurrence took place on account of some other reason but the same is not sustainable. However, taking into consideration the totality of the occurrence I am of the view that even though the conviction of the appellant under section 304 part 2 of the Code - 4 - is fully justified, the sentence appears to be excessive. Under the circumstances, while dismissing the appeal the sentence of that which has already undergone would be sufficient in the interest of justice. In the result, the appeal is dismissed with the modification stated above. Let the appellant, namely, Chatur Bhuj Maharaj, be released from jail custody forthwith, if not required in any other case. Mrs. Asha Kumari has assisted in the present appeal as amicus curiae. Her fee shall be paid from the Bihar State Legal Aid Committee. Let a copy of the first and last page of the judgment be given to the learned counsel for the appellant. ( Anjana Prakash, J ) Patna High Court, Patna Dated 26th October, 2009/BTiwary