The judgment established that the evidence must establish the elements of culpable homicide under section 299 I.P.C. to impose a conviction under Section 304 I.P.C.

Ashwani Kumar Mishra, J.

1. This Jail Appeal is directed against judgment and order dated 18.9.2012, passed by Additional Sessions Judge, Ex-Cadre-3, Saharanpur, in Session Trial No. 341 of 2012, State v. Vishnu Sharma, whereby appellant has been found guilty of offence under section 304 I.P.C. and sentenced to undergo 10 years rigorous imprisonment together with fine of Rs.25,000/-. In the event of non deposit of fine, appellant is directed to undergo one year additional rigorous imprisonment.

2. Prosecution version, in brief, is that informant, a journalist, while sitting in his office at about 12.30 PM on 9.1.2012, saw two persons fighting amongst themselves and when he came out to stop them, alongwith one Ashok Batra, one of them i.e. accused-appellant pushed the other such that he fell in the drain. With public help the other person was taken out from drain but by then he had already died. The accused was apprehended on the spot while trying to flee. He identified himself as Vishnu Sharma son of Girish Sharma. The deceased however could not be identified. A police report at the behest of informant was lodged on the same day at about 1.30 PM, under section 304 I.P.C. at Police Station Kotwali Nagar, District Saharanpur. The police having lodged the First Information Report proceeded with investigation. An inquest report was prepared, body was sealed and sent for post-mortem. Statement under section 161 Cr.P.C. was recorded, site was inspected, and a site plan drawn. In the post-mortem report, ante mortem injury on face measuring 2cm x 3cm was found alongwith lacerated wound measuring 5cm x 3cm on right cheek. Deceased was found to be a 38 year old male. Sludge and dirty water was found in his lungs and cause of death was determined as asphyxia due to drowning in sludge and water. The identity of deceased however could not be ascertained, despite beating of drum (munadi) and newspaper publication. The Investigating Officer found the incident to have happened, as alleged by the informant. A charge sheet was accordingly filed under section 304 I.P.C. Accused was furnished materials relied upon by the police against him and the case was committed to the sessions by the Magistrate concerned. Accused denied the charges and consequently trial proceeded.

3. Prosecution for proving the charges adduced informant Vinod Bagala as PW.1 and Ashok Batra as PW.2, both eye witnesses, who supported the prosecution case. Inquest proceedings were attested by Ram Ratan PW.3, whereas Dr. P.K. Bansal, who conducted post-mortem examination, appeared as PW.4. Investigating Officer appeared as PW.5 and First Information Report was verified by Police Station Incharge, who appeared as PW.6. The substance of material collected and adduced was explained to the accused appellant under section 313 Cr.P.C. He denied the incident, claimed himself to be innocent and stated that deceased was already lying in the drain when he had gone picking up waste papers etc. (accused claims to be a rag picker). As per him the informant asked him to take out the dead body lying in the drain but he refused as his cloths would get dirty and that is why he has been falsely implicated in this case. Sessions Court after hearing the A.D.G.C. (Criminal) and Amicus Curiae, appearing on behalf of accused appellant, found that prosecution had established guilt of the accused appellant and consequently awarded sentence, already noticed above. Aggrieved by it, the appellant-accused has filed the present Jail Appeal.

4. Perusal of the record goes to show that informant reported in the F.I.R. that he had seen the two persons fighting amongst themselves and that while he tried to stop them, alongwith Ashok Batra i.e. P.W.2, the accused pushed deceased such that he fell in the drain. However, in his statement before court as P.W.1, he has stated that while he was sitting alone in his office, which is fitted with dark glasses, he saw the accused badly beating the other person i.e. th