KISHORI PRASAD RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment of conviction dated 30.6.1998 and order of sentence dated 1.7.1998 passed in Sessions Trial No. 4 of 1997 whereby and where under the learned 2nd Additional Sessions Judge. Giridih held the sole appellant guilty under Section 304, Part I of the Indian Penal Code (IPC) and convicted and sentenced him to undergo R.I. for seven years and also to pay fine of Rs. 500/ - and in default to pay the fine, to further undergo simple imprisonment for two months.

(2.) PROSECUTION case in brief is that Krishna Prasad Rai, informant, gave a fardbeyan before Srikant Singh of Deori P.S. in the male ward of public health centre at Deori on 2.7.1996 at 10.00 p.m. to the effect that the same day at about 3.00 p.m. in the evening he was constructing a brick wall east of his house of which partition of the land had already taken place about forty years ago with his uncle Kishori Rai and he was constructing on his own share of land on which he was cultivating for last several years. Wall had already been raised upto height of 12 -13 brick and work was continuing when Sudhir Rai, Kishori Rai and Sahdeo Rai who are his relatives came there and asked him to stop construction of the house. On this the informant replied as to why he should stop construction work as the land falls in his share of land and after measuring the land, he has been constructing the house on his share of land, whereupon Kishori Rai disputed the fact and stated that he has been constructing house on his land. After this, there was some scuffle between both of them whereupon Sudhir Rai, Sahdeo Rai brought lathi and appellant Kishori Rai gave a brick blow on the left temporal region of his father, as a result of which he fell down. Thereafter three more blows of lathi were given and when he went to rescue his father, then wife of Sudhir Rai bite middle finger of his left hand and both of them got injured. Thereafter Kedar Rai, Dhanraj Rai, Laxmi Rai, Jamadar Rai and Kunju Rai came there and intervened in the matter and saved them from being killed. From there he along with his father went to Deori hospital for treatment where his father was in critical condition. On this piece of statement of Krishna Prasad Rai (informant) a case being Deori P.S. Case No. 55 of 1996 of 1996 dated 2.7.1996 under Sections 341, 323, 307, 447/34, IPC was registered and I.O. after investigation submitted charge sheet. Cognizance in the case was taken and the case was committed to the Court of Sessions where 2nd Additional Sessions Judge, Giridih after recording evidence of witnesses both oral and documentary and came to a finding and held the appellant guilty and convicted and sentenced him as aforesaid.

(3.) PW 1 is doctor who conducted post -mortem examination on the dead body of Dhapru Rai and found the following ante mortem injuries : - -