Advocates:
['SUDHIR KUMAR RAJ', '', 'INDRAJEET SINGH', 'MUKESH KUMAR', 'PP']

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Appeal (SJ) No. 163 of 1999

===

Against

the

judgment

of

conviction

dated

17.6.1999 and order of sentence dated 19.6.1999

passed in Sessions Case No. 305 of 1992 by

Sessions Judge, Katihar.

****

Sk. Hasimudin .... .... Appellant

Versus

The State of Bihar .... .... Respondent

===

For the Appellant: Mr. S.N.Prasad (Amicus Curiae)

For the Respondent: Mr. Ajay Mishra, A.P.P.

===

P R E S E N T

THE HON’BLE MR JUSTICE MANDHATA SINGH

****

J U D G E M E N T

Mandhata Singh,J.

Written report of the informant Sk. Chuttu @

Bhuttu is made basis for the F.I.R. which in short is

that on 18.1.1992 at about 9.30 PM there cropped up a

quarrel in between the informant and the appellant

along with Jainuddin for land. They abused which the

informant protested. Ashiruddin ordered to teach a

lesson complying thereon all the accused persons

entered

informant’s

courtyard,

surrounded

him,

attempted to cause assault, his wife Gulejan with a

baby in her lap came, intervened just to rescue her

husband which was reacted by the accused appellant in

pushing her to down along with her child, result was

falling down of the child on earth and her death,

thereafter accused persons including this appellant

Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011

2

left the place.

2. After concluding the trial, appellant is

only convicted for the offence under section 323 and

304/34 of the Indian Penal Code, by passing impugned

judgment and order of conviction and sentence validity

of which has been questioned through filing of this

appeal.

3. In all six witnesses were examined. They

are P.W.1 Sk. Jalaluddin, P.W.2 Chuttu @ Bhuttu

informant of the case, P.W.3 Samiruddin brother of the

informant, P.W.4 Gulejan wife of the informant, P.W.5

Doctor and P.W.6 the I.O. of the case.

4. All the four material witnesses namely P.Ws

1,2,3 and 4 are constant on the point that Gulejan was

pushed by this appellant. She fell down with her child

in lap which resulted into the death of the child. They

are from the same family, may be said interested raised

in the trial court also but rightly has been replied

that it was 9.30 PM of the month of January in rural

area, possibility of coming of others was rare so,

there was no reason to disbelieve or doubt these

witnesses about pushing the lady which has been taken

for constituting offence under section 323 and 304 of

the Indian Penal Code. Doctor is on the point of death

of the child who conducted post mortem on dead body of

the child and I.O. of the case is on the point that

Patna High Court CR. APP (SJ) No.163 of 1999 dt.22-12-2011

3

investigation

was

fair

and

in

their

statement

(examination in chief or cross examination) also no

infirmity is found.

5. Submission of learned counsel for the

appellant is specific on the point that the act

alleged and established does not constitute the

offence under section 304 of the Indian Penal Code

as

intention

or

knowledge

is

lacking,

more

specifically it is said that intention at all was

lacking for Gulejan even that she was to be killed.

Nature of injury would constitute offence under

section 304 of the Indian Penal Code about having

knowledge that act of pushing would result in her

death which also was done while she came in rescue

of her husband is her chief is doubted. She was not

assaulted in any other way, admittedly no harm was

to be caused to the child in her lap nor any direct

act was done to harm the child. It only can be said

that a lady was pushed but no care was taken that a

child was also in her lap, if that is taken into

consideration, constitution of offence under section

304 of the Indian Penal Cod