The prosecution must establish intent in homicide cases; lack of intention led to conviction under Section 304 Part II, not 302.

JUDGMENT :

RAMESH CHAND, J.

Heard Ms. Surya Nilambari, learned Amicus Curiae for the appellant and Mr. S. N. Prasad, learned APP for the State.

2. The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 19.12.2007 and order of sentence dated 20.12.2007 passed in Sessions Trial Case No. 154 of 2006 arising out of Deoriya P.S. Case No. 14 of 2005 dated 09.04.2005 passed by the learned Additional Sessions Judge (FTC)-IV, Muzaffarpur, whereby and where-under the appellant has been convicted for the offence punishable under Sections 304 of the Indian Penal Code (hereinafter referred as ‘IPC’) and had been sentenced to undergo rigorous imprisonment for ten years under Section 304 of the IPC.

3. As per the prosecution story, the informant, recorded fardbeyan on 09.04.2005 before police that a scuffle took place in between the deceased and the accused on account of human refuge throwing through the hole of a wall causing annoyance to the inmates of the deceased home which led to an abusing altercation and eventually in course of that the accused started mounting pressure around the neck of the deceased as a result of which it is alleged that the informant’s father fell on the ground and went in coma who was rescued taken to S.K.M.C.H, Muzaffarpur where he was declared dead and thereafter the informant and others returned back to their village home with the dead-body of the deceased and lodged the case before the P.S. concerned.

4. Further on the basis of fardbeyan of informant, police as usual took up the investigation and in course of that visited the place of occurrence, took down the statement of the witnesses, prepared inquest report, got the autopsy of the dead- body and after completing the formalities submitted the charge- sheet against the accused under Section 302 IPC which mandated the court of competent jurisdiction to take cognizance of the offence vide order dated 04.02.2006 and thereafter the case was committed to the Court of Sessions on 17.02.2006.

5. On behalf of prosecution altogether 7 witnesses were examined to substantiate the charges levelled against the appellant, who are namely, PW-1 Mukesh Tiwari, PW-2 Sumangal Sharma, PW-3 Umesh Tiwari, PW-4 Kamlesh Tiwari, PW-5 Manoj Tiwari (informant), PW-6 Dr. and PW-7 Santosh Kumar Sinha (Investigating Officer). On behalf of defence one witness has been examined namely DW-1 Mahesh Tiwari.

6. PW-1 Mukesh Tiwari in his examination-in-chief stated that occurrence is of year 2005 around fourth month at about 6:30 am when he was going to take bath, he saw that there was a scuffle going between accused and deceased. He further stated that after hearing hulla he came and saw that Rameshwar Tiwari (deceased) was lying dead on the ground and chachi (wife of deceased) told him that accused killed the deceased by strangulation.

6.i. In his cross-examination, he stated that at the time of occurrence deceased was healthy and accused was scraggy person and he did not saw the occurrence himself. He further stated that he did not saw any human refuge near the house of the deceased nor saw any mark at the place of occurrence. He further stated that deceased character was good and he was wearing ganji, lungi when he saw the deceased and deceased’s wife and son was not there.

7. PW-2 Sumangal Sharma stated in his examination-in-chief that on 09.04.2005 the occurrence took place when he was going to his house from farm, there was talk i