There is no gainsaying that even one assault on the vital portion on the deceased would clearly attract the mischief of section 302 of IPC: High Court of Patna
TITLE– Hariom Kumar vs The State of Bihar with Madhu Kumar vs The State of Bihar with Manoj Prasad & ors vs The State of Bihar
DECIDED ON–8/12/2023
+CR.APP(DB) No.123/2023
CORAM-HON’BLE JUSTICE ASHUTOSH KUMAR AND HON’BLE JUSTICE NANI TAGI
INTRODUCTION
As The Hariom appellant seeks to relook at the judgement and an order of conviction of Appellant/Madhu Kumar,Manoj Prasad and kisan Kumar for a lesser offence under section 304(II) of the IPC instead of Section 302 of the IPC and further challenges to the judgement and order impugned respect to acquittal of one of the respondents namely Amit Kumar on the ground of Alibi.
FACT
As per the facts the appellant i.e Hariom Kumar on fardbeyan a case was registered fo investigation for the offence under section 341,323,302,504 and 34 of IPC against the respondents as deceased was his father who was narrating to him and his mother that he had been attempted to mow down by the respondents while narrating all the four respondents arrives and armed with lathi and bamboo stick and started to abuse the deceased.when deceased ran for his life to his neighbour house the respondent chase the deceased and assaulted him even they assaulted him and his mother and after the respondent left the deceased was sent to the clinic where he was declared dead.After the investigation the charge-sheet was submitted and the respondents were put on trial after examine the witness of both the parties acquitted respondent Amit Kumar and convicted rest other under section 341,323 and 304(II)/34 of the IPC and all the sentence were directed to run concurrently.Wereas appeal has been filed on behalf of the respondents also the appeal on behalf of the appellant/Hariom.The appeal under section 372 of the CrPC listed before a D.B.that is also a reason for the hearing of the appeal .
THE COURT ANALYSIS AND DECISION
As per the Hon’ble court observed and state that at first the appellant Hariom called and informed the police but did not take the name of the assailant appears to be strange.The I.O did not give the details of the attack by the respondents.For the trial court given judgement to Amit Kumar had taken the plea of alibi but did not present himself for medical examination and it finds fault with the trail court reasoning but even if he was present in the scene do not find any overt act.Whereas Learned Appellant for Hariom submitted that even I.O of this case found blood stain in front of the house as the blood satin was seized but never sent for any chemical examination and this has taken investigation nowere.True it is that for the ineptitude and the cavalier approach of the investigator the entire case cannot be discharged but at present the entire genesis of occurrence is doubted lapses weaken the Prosecution case.The court do not find any necessary examine the deposition of the defense witnesses gir the reasons given by the trial court for acquitting respondent Amit Kumar by the very nature if evidence but at the same time the Trail court was not at all justified in conviction the other respondents under section 304 (II) of IPC .There does not appear to any foreseeable intention of killing the deceased.The weapon used ,the medical testimony is not at all syne with the ocular version of the deceased having been assaulted no.of times.There is no gainsaying that even one assault on the vital portion on the deceased would clearly attract the mischief of section 302 of the IPC but then the attended circumstances and the background facts would be important to be noted.As under this circumstances set aside the judgement of the Trial court acquitting respondent Amit Kumar and convicting and sentencing the rest of the respondents under section 304(II) of IPC and convicted the appellant/kishan Kumar under section 325 of the IPC and other respondents under 323 of the IPC.The respondent Amit Kumar convicted and sentenced under section 323 of IPC.All the appeals are thus disposed off accordingly.As appellants Manoj Prasad sah,Madhu Kumar and Respondent Ambit Kumar have already served out their sentence are directed to be released from the jail.
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