BISHNU MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD. The Appellants have been convicted under Sections 304/34 of the Indian Penal Code and sentenced to ten years rigorous imprisonment by a Judgment dated 6.12.1994 in Sessions Trial No. 348 of 1990 passed by the Additional Sessions Judge, XII, Patna.

(2.) THE case of the prosecution is that on 4.3.1988 a fight was going on in the family of one Gulli Mahto in which Bhagirath Mahto resisted but in course of altercation, the parties became enraged and a free fight ensued between them on account of which the injured Bishun Mahto died two days later. Initially the case has been instituted under Sections 341, 323, 337 of the Indian Penal Code but charge sheet was also submitted under Section 302 of the Indian Penal Code after the death of Bishun Mahto and charges were framed under Section 302/34 of the Indian Penal Code but the Appellants were acquitted of the charges and convicted as mentioned above.

(3.) THE defence of the Appellants was that there had been a free fight between the parties in course of which the deceased had sustained injuries and the occurrence had taken place in a different manner. During trial, the prosecution examined nine witnesses. PW -9 is the Investigating Officer whereas PWs -1 and 2 are the sons of the deceased Bishun Mahto. PW -7 is the Doctor who examined the injured deceased and PW -8 is the Doctor who held the post mortem examination. The Doctor who examined the injured, initially found smell of alcohol coming from his mouth and deposed that nobody took the patient to PMCH even though he had been referred there. Two eye witnesses are admittedly the sons of the deceased and interested in nature and the independent eye witness did not corroborate the prosecution case. The two independent eye witnesses i.e. PW -3 and PW -4 have in fact, stated that there was free fight between the parties and, therefore, substantially negated the prosecution case.