SUDISHT RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE sole appellant, having been convicted for offence under Section 302 I.P.C. and sentenced to undergo rigorous imprisonment for life by the impugned judgment dated 24.8.1990 passed by the Sessions Judge, Muzaffarpur in Sessions Trial No. 51 of 1989 has filed this appeal.

(2.) THE prosecution case in short giving rise to the impugned judgment of conviction and sentence lies in a very narrow compass. THE informant Megha Rai (P.W.5) in his Fardbeyan to the police recorded on 1.5.1985 at 10.15 A.M. had stated that in the early morning at 6.30 A.M. on 1.5.1985, there was an altercation with regard to plucking of mangos from the mango tree situated in the plot of his house. In this regard, he had given detailed narration of the incident taking place in the morning wherein the son of the appellant Ram Pravesh Rai was claiming to be plucking the mangos from the mango tree allegedly belonging to the prosecution party and it is said that when the mother of the informant had seen the son of the appellant plucking mangoes, she had forbidden him not to do so and had also warned the appellant and his wife as with regard to plucking of mango by the son of the appellant. THE informant has stated that it was thereafter only that the wife of the appellant had started hurling abuse in the name of the mother of the informant and when the mother of the informant had made a protest as with regard to being abused in respect of her mangos being plucked by the son of the appellant, the appellant also is said to have joined his wife and started hurling abuse on the mother of the informant. It is said that when the appellant had intervened and had started hurling abuse, the brother of the informant Chandrika Rai (deceased) had arrived at the place and had forbidden the appellant not to abuse his mother and on this, firstly the wife of the appellant having brought a Lathi had given a blow on the brother of the informant Chandrika Rai and when his brother had caught hold of the Lathi, the appellant having brought a Bhala had given a blow in the chest of Chandrika Rai.

(3.) HE has also submitted that even if the allegation of manner of assault against the appellant is accepted to be true, the absence of corresponding injury in the hands of the deceased on account of blow given by the wife of the appellant would further belie on the manner of occurrence. HE has also tried to make out a case that as it was a free-fight on account of sudden provocation and without premeditation and the offence alleged against the appellant would not be one under Section 302 I.P.C. but only under Section 304 Part-2 I.P.C. In this regard he has also placed reliance on the judgment of the Apex Court in the case of Shivappa Buddappa Kolkar Alias Buddappagol Vs. State of Karnataka & Ors. reported in 2004(13) SCC 168.