The judgment emphasized the need for vigilance and sensitivity in trying cases, the impermissible use of roaming witnesses, and the correct application of the statutory scheme for culpable homicide.

NAVANITI PRASAD SINGH, J.

Before delivering the judgment in this appeal, we would like to record our anguish. This is a jail appeal in relation to an incident, which took place on 12.11.1983, wherein the sole-appellant is alleged to have inflicted fatal blow with the spade (Kudali) on the deceased. In course of treatment the victim died. From the lower court record we find that even in the lower court, the appellant was so poor that he had to be provided with a counsel by the State to defend him. He had surrendered before the Trial Court in the year 1989 and was remanded to judicial custody, where he remained till the judgment of conviction and order of sentence dated 09.10.1991 of life imprisonment passed by the Trial Court. He filed this appeal as a jail appeal before this Court, which was taken up on 05.12.1991 and admitted. It was recorded that bail would be considered after receipt of lower court record. Everyone forgot the appellant. In spite of the receipt of the lower court record and in spite of the fact that this appeal was jail appeal, the Registry of this Court did nothing to list the matter for consideration of bail. It was only in 1998, i.e., more than 7 years thereafter that the matter was listed and Mr. Pranav Kumar, learned counsel was appointed as Amicus Curiae and, thereafter, on 19.02.1998 the petitioner, having been in custody for over 9 years, was released on bail. This is a matter of concern for the Registry of this Court and we hope that this callous attitude and insensitivity will not be repeated in future.

2. We have heard Mr. Pranav Kumar, Amicus Curiae and Mr. Ajay Mishra, learned A.P.P. and also perused the records. The sole-appellant has been convicted by judgment of conviction and order of sentence dated 09thof October, 1991 in Sessions Trial No.24 of 1990 by the learned Sessions Judge, Sitamarhi for an offence under Section-302 of the Indian Penal Code and has been sentenced to undergo imprisonment for life.

3. The prosecution case is based upon the fardbeyan of one Vijay Kumar Mishra (P.W.1), the son of the deceased, which was recorded by Mr. S. Zoha, A.S.I. (not examined) at Sri Krishna Medical College & Hospital, Muzaffarpur (hereinafter in short ‘S.K.M.C.H.’) on 14.11.1983 while the deceased was being treated there. It may be recorded that the deceased died in the S.K.M.C.H. two days thereafter. The allegation as per the fardbeyan is that on 12.11.1983 at about 9 am the appellant was found digging a patch of land with a spade (Kudali) adjacent to his house, which was objected to by the deceased, Shyam Narayan Mishra, who tried to stop him and sudden altercation started. It is alleged that when Shyam Narayan Mishra tried to hold the spade, the appellant hit with the sharp edge of the spade on the head. It is then alleged that once Shyam Narayan Mishra fell down, he was hit by the backside of the spade above his eye. In this injured condition, the deceased, Shyam Narayan Mishra was then brought on 12.11.1983 to the Primary Health Centre and was then referred to the S.K.M.C.H. where this statement was recorded on 14.11.1983. The appellant absconded. After investigation charge-sheet was submitted under Section-302 IPC and in course of treatment, as noted above, Shyam Narayan Mishra died on 16.11.1983. Cognizance having been taken, the case was committed to the Court of Sessions. The appellant having surrendered in the year 1989, the trial commenced and in course of trial as there was no one to represent the appellant, the Court appointed a State counsel to defend him. The trial ended in the conviction, as noted above, followed by the jail appeal, as noticed above.

4. In order to establish its case the prosecution has examined 8 witnesses. P.W.1-Vijay Kumar Mishra, as noted above, is the informant and the son of the deceased, Shyam Narayan Mishra. P.W.2 is Ramkumari Devi, the wife of deceased, P.W.3 is Radhakant Mishra, P.W.4 is Kameshwari Devi the mother of the deceased and P.W.5 is Parman