Satyadeo Kushyat vs State Of Bihar

On repeated calls, none appears on behalf of appellant, on account thereof, Sri Ranbir Singh, Advocate has been requested to assist the court as an

Amicus Curiae.

Appellant, Satyadeo Kushyat has been found guilty for an offence punishable under Section 304 IPC and sentenced to undergo RI for 7 years

under Section 201 IPC and sentenced to undergo RI for three years with a further direction to run the sentences concurrently vide judgment of

conviction dated 22.07.2015 and order of sentence dated 29.07.2015 passed by Additional District & Sessions Judge-2nd, Supaul in Sessions Trial No.

16/2002.

Ram Kishun Sharma (PW 13) gave his Fard-e-beyan on 27.09.2000 at about 12.15 PM at Karjain PS alleging inter alia that on 24.09.2000, his son

Shyam Kumar Sharma aged about 7 years along with other co-villagers, Pradip Kr. Sharma son of Sadhu Sharma, Bhola Sharma son of Bindeshwar

Sharma and others had gone to canal for grazing the cow. During course thereof, he had gone into canal to take bath and during midst thereof, the

cow had gone to the paddy field of Satyadeo Kushyat. His son rushed to take out the cow from the field. All of a sudden, Satyadeo Kushyat arrived

and seeing the same, began to assault his son with jute stick as a result of which, his son fell down. Then thereafter, Satyadeo Kushyat lifted the stick

which his son was carrying and then, began to assault as a result of which, his son vomited blood. Seeing the same, Satyadeo Kushyat escaped

therefrom. The persons present there including herds man lifted his son to his house and disclosed the event to them. His neighbour, Badri Sharma

brought medicine from Dumri Chowk and administered him, even then, his condition did not improve. On 25.09.2000 at 7.00 AM, his wife Lalo Devi

(PW 4) and daughter Sanju Devi (PW 1) along with child of his neighbour, Badri Sharma took him to Karjain for treatment during midst thereof, he

died. Then thereafter, they returned back with the dead body of the child whereupon the neighbours buried the dead body on the bank of the canal. As

he had gone to Sasural in the morning of date of occurrence itself, was informed and after receiving information on 26.09.2000, he came back and

then, became conversant with the occurrence. Then thereafter, he had seen a large number of co-villagers as well as residents of villager-Basawan

Patti assembled at the house of his neighbour, Khushi Lal Sharma and were discussing the matter whereunder apart from others, Mahanthi Kusaiyat,

Zafar Ansari (Ex Sarpanch), Dev Narain Mehta, Baijnath Mehta and others were present, called him and out of them, Mahanthi Kusaiyat has

disclosed that take 5 Katthas of land. No case should be instituted. Also directed that nothing will be gained on institution of a case. All the persons

should live in congenial, harmonious relationship. As, he was suffering from anguish, being grieved on account of death of his son, so he disclosed that

for the present, he is not going to say anything. Today in the morning hour, he was informed that the dead body has been excavated from the grave

whereupon they had gone there and had seen the dead body was missing. Only coffin was there and so, he inferred that the accused along with his

associate got the dead body disappeared in order to screen themselves.

On the basis of the aforesaid Fard-e-beyan, Karjain PS case No. 37/2000 was registered under Section 302, 201 IPC followed with investigation.

After concluding the investigation, charge-sheet has been submitted under Section 304/201 IPC whereunder trial commenced and concluded

identifying the appellant guilty under the aforesaid Section, being challenged under the present appeal.

Defence case as is evident from the mode of cross- examination as well as statement recorded under Section 313 CrPC is that of complete denial.

However, neither oral nor documentary evidence has been adduced in support thereof.

In order to substantiate its case, prosecution had examined altogether 17 PWs out of whom PW-1, Ranju Kumari, PW-2, Pradeep Kumar Sharma,

PW-3, Manohar Rajak PW-4, Lalo Devi, PW-5, Bindeshwar Sharma, PW-6, Madhu Sharma, PW-7, Bhola Kumar Sharma, PW-8, Hari Narayan

Bhindwar, PW-9, Binod Rajak, PW-10, Zafar Ansari, PW-11, Deo Narayan Mehta, PW-12, Kamal Rajak, PW-13, Ram Kishun Sharma, PW-14,

Ramesh Pd. Mehta, PW-15, Bisheshwar Mehta, PW-16, Nanu Lal Mehta and PW-17, Baijnath Mehta as well as had also exhibited Ext-1 Series,

signature of FIR attesting witnesses. As states above, nothing has been adduced in defence.

Learned Amicus Curiae while challenging the finding recorded by the learned lower court has submitted that the case suffers from improbability

and further, after a minute, close scrutiny of the evidences of the PWs, it speak about suspense, thrilling episode. In order to justify the same, it has

been submitted that there happens to be non examination of Investigating Officer at the end of prosecution and on account thereof, so many knots

persisting in the prosecution case remained unresolved. In this connection, it has been submitted that there happens to be consistent evidence at the

end of the prosecution that dead body of the deceased disappeared from the grave where it was buried but, none had seen the same. Merely because

appellant happens to be the ultimate beneficiary would not cast any kind of allegation against him unless and until there happens to be conclusive

evidence. So the finding happens to be based upon illusion. Furthermore, the place would have been properly identified as the canal was not confined

at a particular point and so, burial ground should have been properly identified by conclusive evidence and further, its proper identification with specific

boundary. From the evidence of the witnesses, it is apparent that they in vague term had deposed that the dead body was buried at the back of canal.

Then it has been submitted that the aforesaid theme has been purposely introduced in order to justify the allegation as had there been postmortem

over the dead body, it would have disclosed connectivity in between the allegation having been attributed to the appellant along with the finding of the

doctor. In the aforesaid background, it has been submitted that had there been examination of the Investigating Officer, the defence would have got an

opportunity to expose the mala fide of the prosecution in getting the appellant prosecuted under instant malicious prosecution.

It has also been submitted that from the evidence of the prosecution, more particularly, the witnesses who claimed to be an eyewitness, there

happens to be material development. Had there been examination of the Investigating Officer, the contradiction towards which attention of respective

witnesses have been drawn would have legally been brought up on record shaking the credibility of the evidence of the so called eyewitnesses.

Apart from this, It has also been submitted that improbability of the case is found from the evidence of the eyewitnesses themselves. Some of the

witnesses have disclosed that appellant was also present since before along with his she-buffalo while, some had disclosed that unfortunately,

appellant arrived at the relevant time by chance when the deceased had gone to his paddy field in order to take out the cow which was grazing his

paddy crop. So, there happens to be inconsistency over the manner of presence and that itself speaks a lot either questioning themselves to be an

eyewitness to occurrence, simultaneously, with regard to the presence of appellant/accused. Furthermore, the witnesses have stated that

appellant/accused had assaulted the victim with jute stick but, none of them had disclosed that there was jute plant standing in the vicinity at least, in

the boundary and so, wherefrom the jute stick came in his hand, the prosecution failed to disclose. Furthermore, It has also been submitted that there

should have been a connectivity with the activity of the accused with the ultimate result. Because of the fact that there happens to be no postmortem

report, on account thereof, it is difficult to say that on account of assault so alleged at the end of the prosecution, death had occurred. Moreover, there

happens to be specific disclosure right from the Fard-e-beyan, that deceased was administered medicine and as the aforesaid medicine administered

by a quack or after consulting the medicine shopkeeper, might have caused reaction resulting death of the deceased. Therefore, the finding of learned

lower court, at least, identifying the appellant to be guilty for an offence punishable under heading culpable homicide not amounting to murder is not at

all found justifiable and in likewise manner, for disappearance of the evidence. So, submitted that the finding recorded by the learned lower court is not

at all fit for confirmation.

On the other hand, learned APP while controverting the submissions made on behalf of learned Amicus Curiae has submitted that from the

evidence available on the record, it is apparent that PW-1, PW-2, PW-7 are the eyewitnesses and they are consistent over genesis as well as manner

of occurrence. Recovery of corpse is not at all a condition precedent and further, would not cause dent to the prosecution case, in case there happens

to be consistent ocular evidence directly divulging the activity of the accused leading to death of the deceased. This case happens to be of such nature

and so, the finding recorded by the learned lower court is fit to be confirmed.

Out of 17 witnesses examined on behalf of prosecution, it is evident that PW-3, Manohar Rajak is a rickshaw puller over which, PW-1 as well as

PW-4 took the deceased to the clinic of Dr. Ramesh on the following day of alleged occurrence who declared him dead and then thereafter, all of

them returned back. That means to say, his evidence appears to be corroborative in nature without identifying the culprit.

PW-4 is the mother of the deceased and so far main occurrence is concerned, she does not happen to be an eyewitness. PW-5 is also not an

eyewitness. PW-8 is also not an eyewitness to the occurrence while PW-12 also stood on same pedestal. PW-13, the informant is also not an

eyewitness to the occurrence and that happens to be also the status of PWs-14, 15 and 17. PWs- 8 and 10 have been tendered which ought not to be

as Evidence Act did not permit while PWs-11 and 16 have been declared hostile. Furthermore, it is evident that Investigating Officer has not been

examined. It is needless to say that in usual course non examination of the Investigating Officer would not incapacitate the prosecution case unless

and until the right of the accused is found prejudiced and on account thereof, it is to be considered on the basis of the facts of the case and that

happens to be the conclusive principle laid down by the Apex Court. In the case of Baldev Singh v. State of Haryana as reported in 2016 Cri. L.J.

154, it has been held as follows:-

“16. Contention at the hands of the learned Senior Counsel for the appellant is that non-examination of Chander Singh-SI who prepared rukka and

who investigated the case raises serious doubts about the prosecution case. Material on record would show that Chander Singh-SI who investigated

the case was not examined by the prosecution in spite of several opportunities. No doubt, it is always desirable that prosecution has to examine the

investigating officer/police officer who prepared the rukka. Mere non-examination of investigating officer does not in every case cause prejudice to

the accused or affects the credibility of the prosecution case. Whether or not any prejudice has been caused to the accused is a question of fact to be

determined in each case. Since Ram Singh-PW-1 was a part of the police party and PW-1 has signed in all recovery memos, non- examination of

Chander Singh-SI could not have caused any prejudice to the accused in this case nor does it affect the credibility of the prosecution version.â€​

First of all the evidence of eyewitnesses are to be taken note of and on that very score, prosecution had examined PWs - 1, 2, 6, 7 out of whom

PWs-2 and 7 have got their presence in the Fard-e-beyan. PW-1, sister of the deceased had deposed that on the alleged date and time of occurrence,

her brother Shyam Kumar Sharma took out the cow at abut 7.00 AM for grazing towards canal. During course thereof, the cow had gone to the

paddy field of Satyadeo Kushyat and began to graze the paddy plant. Her brother had gone to the field to take out the cow whereupon Satyadeo

Kushyat assaulted him with jute stick as well as lathi, as a result of which, her brother began to vomit blood. She had also gone to scrap the grass at

that very place, on account thereof, had seen the same. Then thereafter, she lifted her brother to her house. Then thereafter, she along with her

mother took the deceased to Dumri Chowk over a rickshaw of Manohar Rajak at the clinic of Dr. Ramesh, as her father was not present who had

gone to see her maternal grand-mother who was ill since before. She took her brother on the following day. Her brother died on the following day of

the occurrence at about 8.30 AM. She along with her mother returned back to their house. As her father was not present, on account thereof, the

neighbours, villagers took the dead body and buried the same at the canal. When her father came, the people of Tola as well as accused sat in

Panchayti wherein it was resolved that accused should execute sale deed relating to a land measuring 5 ½ Katthas but her father refused and said

that he will institute a case. Then thereafter, Satyadeo Kushyat got the dead body of her brother stolen from the burial ground. Her father had gone to

the police station and instituted the case. She had further stated that Pradeep Kumar Sharma had also witnesses the occurrence who was present

there. In para-2 of her cross-examination, it is apparent that on account of material development during course of examination-in- chief, her attention

has been drawn up towards the same. Furthermore, at para-3, she had stated that a day prior to the alleged occurrence Shyam Kumar Sharma was

suffering from cough and fever whereupon he was examined by Dr. Ramesh. Her mother and Badri Sharma had purchased medicine as prescribed

by the doctor. Doctor had not advised for taking rest as well as for taking precaution from cold. Doctor had simply said not to eat stale food. She had

further stated that she was not carrying animosity since before with the accused. None had seen the accused indulged in removing the dead body. On

the date of occurrence, none had taken the deceased to doctor. Then had denied the suggestion that her brother had died out of ailment and due to

animosity she has deposed falsely.

PW-2 had stated that on the alleged date and time of occurrence he along with Shyam Kumar Sharma were taking bath at the canal. They both

had gone to graze the cattle. Accused, Satyadeo Kushyat was also there engaged in grazing his she buffalo. Cow of Shyam Kumar Sharma had gone

to the paddy field of Satyadeo Kushyat and began to graze whereupon Satyadeo Kushyat got the cow removed from his field and also began to

assault Shyam with the jute stick. Then thereafter, he assaulted him with the Lathi, as a result of which blood oozen out from the mouth of Shyam.

Seeing the same, Satyadeo Kushyat ran away. He along with Ranju who had come to scrap the grass lifted Shyam and took him to the house. Then

thereafter, they took Shyam to Dumri Chowk where doctor declared him to be dead. Furthermore, accused managed in getting the dead body buried.

At the time of occurrence, deceased Shyam was aged about 7 years and was younger to him. Identified the accused. During cross-examination at

para-2, there happens to be contradiction. In para-3, he had stated that he is unable to say as to how may blows were given and at which part of the

body. He had further asserted that at the time of assault he was standing there. Accused ran away after assaulting. Blood began to ooze out from the

mouth of the deceased. Deceased was taken to hospital on the next day. After the occurrence, Shyam was semi conscious. He was groaning. He

was suffering from fever though at the time of taking bath in the canal there was no fever. Then had denied the suggestion that he was not assaulted.

PW-6 had stated that on the alleged date and time of occurrence he was engaged in grazing his she-buffalo. At that very time, Shyam Kumar

Sharma was also engaged in grazing his cow and during course thereof, the cow had gone to the paddy field of accused, Satyadeo Kushyat. He came

from his house and then began to assault Shyam Kumar with jute stick. Shyam Kumar was aged about 7 years and on account thereof, he became

unconscious after sustaining the blows. Mother and sister of Shyam Kumar came and lifted him to the house. On the following morning, Shyam

Kumar died at his house. Identified the accused. Then had asserted that the family members of Shyam Kumar as well as villagers buried the dead

body. Police was informed at the instance of Ram Kishun Sharma, father of the deceased. When police had gone to locate the graveyard, found the

dead body missing. Only coffin was found. His father was not present on the date of occurrence as well as on the date of death. He was at his

Sasural. He was unable to say as to who were present in the funeral as he was not present. Coffin was taken away by the police after seizing the

same. During cross-examination at para-5, there happens to be contradiction. In para-6, he had stated that police was informed 4-5 days after the

occurrence. However, police came at the village after 3-4 days. At that very time, he was not present and so, he is unable to disclose for what

purpose, police had come. At para-7, he had stated that at the time of assault so many villagers were present, again corrected only 2-3 persons were

present and then confined to he himself and Shyam, none others were present. They were at the distance of 10-20 lagga away from the place where

accused had assaulted Shyam intervened by a field having paddy crops. Then had stated that he returned back from that very place to his house. Then

had denied the suggestion that he was not an eyewitness to the occurrence.

PW-7 had stated that on the alleged date and time of occurrence he was engaged in grazing his cow at the canal along with 5-6 herds men who

were also engaged in grazing their cattle. Praveen, Shyam (deceased), Pawan, (N.E) Arjun (N.E) and he himself were engaged in getting their

animals grazed at the canal. Shyam Kumar began to take bath in the canal whereupon his cow had gone to the field of accused, Satyadeo Kushyat

and began to graze his paddy crop. Satyadeo Kushyat suddenly came having jute plant in his hand by which he began to assault Shyam. He repeatedly

assaulted. At that very time, sister of Shyam Kumar, namely, Ranju Kumari came. Till then, Shyam had become unconscious whereupon his sister

lifted him to her house. He was treated at the house. After 3-4 days of the occurrence, police had gone to the village and during course thereof, had

taken his statement. Identified the accused. There was Panchayati in the village but, Satyadeo Kushyat declined to accept the resolution of the

Panchayati. During cross-examination at para-2, he had stated that Panchayati took place 4 days after the occurrence wherein wife of Satyadeo

Kushyat had participated. He had also participated. Father of Shyam had stated that whatever will be the resolution of the Panchayat, he will abide by

the same. He is unable to disclose the names of each of the participants but, a large number of persons had participated out of whom 3-4 persons

were co-villagers. In para-3, he had stated that police had suo motu instituted the case. Police came on its own and then took the statement of Ram

Kishun. He had not seen Ram Kishun putting signature or LTI over his statement. In para-4, there happens to be contradiction. In para-5, he had

stated that he was over canal since about 10.30 AM. Then had disclosed the number of animals. Then had stated that Shyam was taken away by his

sister at about 2.00-3.00 PM. At para-6, he had stated that Shyam was shown to the doctor. Then had denied the suggestion that Shyam was ill since

before and his treatment was being done by Dr. Ramesh. Then had denied the suggestion that Dr. Ramesh advised not to take stale food. In para-7,

he had stated that his house lies adjacent to the house of the informant. Satyadeo Kushyat had given 20-25 blows. Para-8 also happens to be on that

very score. In para-9, he had stated that Ranju and her mother had disclosed the occurrence to the villagers but he is unable name those persons. In

para-10, has stated that after Panchayati, the dead body of Shyam was buried. In para-11, he had stated that police had also recorded statement of

Praveen. Police had also recorded statement of Madhu Sharma. Then had stated that Ram Kishun had come in the morning on the following day of

the occurrence.

Now coming to the second nature of evidence, first of all, Lalo Devi (PW 4) mother of the deceased is to be taken who had stated that on the

alleged date and time of occurrence as her cow had grazed the paddy crop of Satyadeo Kushyat, on account thereof, he assaulted her son aged about

7 years with the jute stick and then by Lathi as a result of which, blood oozen out from the mouth of her son. Seeing the same, Satyadeo Kushyat left

the place. Pradeep and her daughter who had gone to scrap the grass, both carried her son to the house. Her son had disclosed that there happens to

be body ache and Satyadeo Kushyat had assaulted. Her son groaned for the whole night. As her husband was not present, she had not taken the

deceased to the doctor in night. She had given milk and bread to her son and then on the following morning while she along with her daughter was

going to doctor at Karjain over rickshaw of Manohar Rajak took her son to Dr. Ramesh. Then she stated that doctor had not disclosed her rather he

only instructed to take her son to house. Manohar had disclosed that doctor had informed him that the boy is dead. Then thereafter, the co - villagers

buried dead body of her son. After arrival of her husband, case was instituted. Police came for investigation but could not locate the dead body of the

deceased. She is unable to say who had disappeared the dead body of her son. In para-2, there happens to be specific discloser apart from

contradiction that she does not happen to be an eyewitness to occurrence, save and except, Pradeep, none was present at the place of occurrence.

She was apprised by Pradeep regarding the occurrence which she had narrated. In para-2, she had stated that on the date of occurrence at about 7.00

AM, Dr. Ramesh had given medicine to her son. Dr. Ramesh, for the last 15 days, had advised to take care of cold. Then had denied the suggestion

that the deceased was not at all assaulted by anybody.

PW-5 had narrated with regard to the incident after collecting information from the villagers and further, death of deceased on the following day

due to assault have been made by Satyadeo Kushyat. He had further stated that on 3rd day of the occurrence, father of the deceased, Ram Kishun

Singh called Panchayati whereunder Punches had resolved that 5 Katthas of land should be given by Satyadeo Kushyat which he declined to accept

as he stoutly refused as he had not assaulted. Then thereafter, the body of child was buried and the case was registered. During course of

investigation, police had gone to the place where the dead body was buried but the same was not traced out rather only coffin was there which was

seized by the police. During cross-examination, he had stated that he had not seen the occurrence. Informant happens to be his friend.

PW-9 had stated that on the alleged date and time of occurrence while he was at his house, he heard with regard to assault over Shyam Kumar

Sharma by the accused with jute stick on account of having his cow grazed paddy crop of Satyadeo Kushyat. He had also heard that the deceased

suffered from dysentery and vomiting and in the following day, he died. During cross-examination, he had stated that he had not seen the occurrence

nor he had seen the child.

PW-12 has stated that after coming to know about the death of Shyam Kumar, son of Ram Kishun, he had gone to the place of Ram Kishun

where he came to know that on account of assault with jute stick by Satyadeo Kushyat, Shyam Kumar died. During cross-examination, he had stated

that he had seen the occurrence.

PW-13 is the informant. He had stated that on the alleged date and time of occurrence, he was at his Sasural. He came on Tuesday evening.

After arrival at his house, his wife and children had disclosed that Satyadeo Kushyat had assaulted Shyam Kumar with Jute stick as his cow had gone

to the paddy field of Satyadeo Kushyat and had grazed the same. They have also disclosed that on account of assault, blood came out from the mouth

of Shyam Kumar. Then his daughter, Ranju along with others lifted Shyam Kumar. In the following morning, his wife, daughter and neighbour, Badri

Sharma took Shyam to Karjain for treatment by the rickshaw of Manohar Rajak and as soon as they reached Dumri Chowk, Shyam Kumar died. As

a result of which they all returned back. In his absence, villagers had convened a Panchayati whereunder it was resolved that Satyadeo Kushyat will

give 5 Katthas of land. Then thereafter, dead body of Shyam Kumar was buried by the villagers on the bank of the canal. After his return, Mahesh

Kumar informed him regarding offer and further not to register a case. He had gone to trace out the grave yard and to see the dead body of his son at

the bank of canal but he had found the dead body missing. Only coffin was there. Then thereafter, he had gone to police station and then registered

the case. He had further stated that the accused, Satyadeo Kushyat with the help of the villagers got the dead body of his son removed. During cross-

examination at para-7, there happens to be contradiction. In para-8, he had stated that he arrived at his house on the 3rd day of the occurrence while

Panchayati was concluded prior to his arrival.

PW-14 had stated that about 6-7 years ago, mother and sister of Shyam Kumar were carrying Shyam Kumar to Karjain Bazar to the place of

doctor over a rickshaw driven by Manohar Rajak and as soon as they reached near Dumri Chowk, Manohar stopped his rickshaw whereupon people

assembled and then had seen Shyam dead whereupon they all returned back. He does not know anything regarding the occurrence. He had further

stated that when he had gone to the police station, he found Ram Kishun Sharma and his statement was already recorded whereupon he had also put

his signature. Biseshwar had also put his signature in his presence. Ram Kishun had also put his LTI in his presence. Identified the accused. During

cross - examination at para-3, he had stated that Ram Kishun had taken him away to police station on the pretext that police officials are calling him.

Police officials had called him two days after he had seen the dead body at Dumri Chowk. In para-4, he had stated that he had not made statement

before the police. However, his attention has been drawn relating to his previous statement.

PW-15 is another FIR attesting witness who had stated that about 7 years ago when he reached at Dumri Chowk, he had seen on rickshaw

occupied by a woman, a girl carrying a child aged about 6-7 years. People had seen the child and disclosed that he is dead whereupon, rickshaw puller

returned back. In the evening, one Ramesh Mehta was standing at the Chowk. O/C of the Karjain PS along with police officials accompanying Ram

Kishun Sharma came and instructed him to carry Ram Kishun to the police station whereupon they had gone over the motorcycle of Ramesh Mehta.

Statement of Ram Kishun was recorded at the police station whereupon he had put his signature. Ramesh had also put his signature. Ram Kishun had

disclosed that after causing murder of his son, his dead body has been disappeared. In para-3, he had stated that he had identified the woman who

was carrying the child to be the wife of Ram Kishun. Then had stated that he had made signature over the Fard-e-beyan.

PW-17 had stated that he came to know that Satyadeo Kushyat had assaulted Shyam Kumar with jute stick as his cow had gone to his paddy field

and grazed the same. He also came to know that later on, Shyam died. He also came to know that Panchayati was convened on that very score.

During cross-examination, he had stated that he had not seen the occurrence. He is unable to say the cause of death. But he had said that there was

sign of assault over the person of Shyam Kumar. He had also stated that both the parties were not on strained relationship since before. He had not

participated in the Panchayati. Then had stated that father of the deceased had demanded 5 Katthas of land which the accused declined and in the

aforesaid background, instant case has been registered. Then had stated that he has got no personal knowledge with regard to the occurrence.

From the evidence available on the record as discussed hereinabove, it is apparent that there happens to be some sort of inconsistency amongst

the evidence of the PWs over presence of Ranju Kumari (PW 1) and in likewise manner, there also happens to be deficiency at their end identifying

whether any field of jute crop was there or not. It is also evident that with regard to the presence of appellant, Satyadeo Kushyat, there also happens

to be inconsistent as some of the witnesses had disclosed that he was also there engaged in grazing his she-buffalo while others have disclosed that he

appeared incidently. However, all the witnesses are consistent regarding assault by jute stick though some of them had developed that the assault was

done by means of Lathi also.

Be that as it may, from the evidence available on the record, it is apparent that there was no animosity amongst the parties since before. It has

also been properly surfaced at the end of the prosecution itself that on account of grazing of paddy crop belonging to the accused by the cow of the

deceased, he was assaulted, that too by a stick.

Investigating Officer has not been examined. Save and except, PW-13, informant, none had claimed that they had gone to the place where the

dead body was buried and further, found the same missing. In absence of examination of the Investigating Officer, the objective finding relating

thereto, is not at all found duly substantiated. The prosecution also happens to be deficient on the score that the assault whatsoever made at the end of

the accused, Satyadeo Kushyat had ultimately cost the life of the deceased. More particularly, in the background of the fact that apart from initial

version, the witnesses have also stated that in the evening hour itself the deceased was provided medicine. That means to say, whether the death was

on account of assault or on account of medicine having been administered to the deceased remained unresolved. This has got primacy in the

background of the fact that none of the witnesses had disclosed that after reaching at the house the deceased had vomited blood or his condition was

precarious save and except, the mother PW-4 had stated that he groaned for the whole night on account of body ache.

Furthermore, it is also evident that the deceased was assaulted by the jute plant converted as stick in the background of having the paddy crop

grazed by the cow of Shyam Kumar, the deceased. His presence is also found incidentally. In the aforesaid background, whether the activity, in worst

case, would attract Section 304 of the IPC.

In Tularam v. State of Madhya Pradesh as reported in AIR 2018 SC 2146, it has been held as follows:-

Section 304 of the IPC provides the punishment for culpable homicide not amounting to murder. Part I of this Section provides that if the act by

which death is caused is done with the intention of causing death or causing such bodily injury as is likely to cause death then the punishment may

extend up to imprisonment for life. On the other hand, Part II of Section 304 provides that if the offending act is done with the knowledge that it is

likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death then the punishment may extend

to imprisonment for 10 years.

After analyizing the evidence on the record, it is crystal clear that prosecution has succeeded only in proving its case beyond all reasonable doubts

to be punishable under Section 323 IPC and for that appellant is directed to undergo RI for one year as well as to pay a fine of Rs. 1000/- in default

thereof, to undergo RI for 2 months additionally and to that extent, the finding of the learned lower court is modified. Accordingly, bail bond of

appellant is hereby, cancelled directing him to surrender before the learned lower court within a fortnight in order to serve out the sentences as

indicated hereinabove, failing which the learned lower court will be at liberty to proceed against the appellant in accordance with law.

In terms thereof, the instant appeal is partly allowed.

The first and the last pages of the instant judgment be handed over to the learned Amicus Curiae for the needful.