GETA GORAI @ GEETA GORAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) : D.K Sinha, J. The sole appellant Geta Gorai @ Geeta Gorai has preferred this Criminal Appeal against the judgment of conviction for the offence in Part -II of Section 304 I.P.C. by which he was sentenced to undergo rigorous imprisonment for 5 years on 12.6.2000 in Sessions Trial NO.9 of 1992 arising out of Nimdih P.S. Case No. 52 of 1991 corresponding to G.A. No. 671 of 1991 by the Addl. Sessions Judge -II, Seraikella.

(2.) THE prosecution story as it stands narrated in the written report of the informant P.W. 4 Lilmani Gorai before the police was that on 19.10.1991 when her elder son Shibottar Gorai (since deceased) returned back his home in the noon with his own cattle as well as the cattle of his younger brother Shankar Gorai, his son Geta Gorai (appellant) and his maternal uncle Mohit Gorai enquired as to why he had taken away the cattle of Shankar Gorai also for grazing and further questioned as to why he was looking after his cultivation when Shankar Gorai was living separately. Their interaction resulted into altercation and it was alleged that in the same sequence and transaction the appellant Geta Gorai and the another Mohit Gorai assaulted Shibottar Gorai with sticks. When the informant -mother of the deceased intervened to rescue, she was also assaulted. She further narrated that Shibottar Gorai sustained injuries on various parts of his bodies. The witnesses arrived on hearing alarm and the injured was removed to the police station where the informant mother presented the written report giving rise to Nimdih P.S. Case No. 52 of 1991 for the offence under Sections 341/323/ 325 I.P.C. against the appellant Geta Gorai @ Geeta Gorai and another Mohit Gorai. The police after investigation submitted charge -sheet under Sections 341/323/325 and 304 I.P.C. only against the appellant Geta Gorai @ Geeta Gorai and the co -accused Mohit Gorai was not sent up for trial. It was stated that the victim Shibottar Gorai had succumbed his injuries in course of treatment at Tata Main Hospital, Jamshedpur.

(3.) IN the cross -examination, the witnesses testified that though there were several neighbours but they all arrived after the occurrence had already taken place. The witnesses denied having stated before the police u/s 161 Code of Criminal Procedure that when he arrived at the scene, he found Shibottar Gorai lying under "Neem tree" sustaining injuries and in this manner, learned Counsel for the appellant submitted that substantial development was made by this witness before the Trial Court beyond what he had stated before the police in course of investigation and therefore, his testimony was not liable to be relied upon for upholding the conviction of the appellant. P.W. 2 Balram Gorai testified that some three years ago, on Saturday at about 3 p.m., while he was returning from his field by collecting grass, he witnessed the appellant assaulting his father Shibottar Gorai with sticks and when the old woman Lilmani Gorai rushed there to rescue, she was also assaulted at his hands. Shibottar Goral became unconscious sustaining injuries and from there he was removed to Nimdih Police Station and from there to Hospital. He was finally removed to Tata Main Hospital where he succumbed his injuries. In the cross -examination, the witness admitted that the occurrence 'took place in the courtyard of the deceased which was surrounded by the house of the informant. The witness was the full brother of the deceased having admitted that the deceased was his elder brother and Shankar (P.W. 6) was his younger brother and all the three brothers were living separately in mess but their mother used to live with Shankar. P.W. 3 Sabi Gorai is the widow of the deceased Shibottar GoraL Upon being tendered for cross -examination, she testified that there was a big "Neem tree" in her courtyard and that when her husband climbed over the said tree to pluck the thin branch for using it in cleaning his teeth (as tooth brush), he fell down from the tree and succumbed his injuries after sometime.