Sardar Yadav Ramayan Yadav v. State Of Bihar — 1999 DIGILAW 1359 (PAT)

Judgment R.N.Prasad and S.N.Pathak JJ. 1. In this appeal appellants, Ramayan Yadav and Ram Subhag Yadav have been convicted for the offence under section 302 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellants, Sardar Yadav and Dasrath Yadav have been convicted for the offence under section 302/149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. Appellant, Dasrath Yadav, has further been convicted for the offence under section 302/114 of the Indian Penal Code and has been sentenced to under go rigorous imprisonment for life. The sentences were ordered to run concurrently. 2. One Dudhnath Yadav gave his fardbeyan on 20.4.1980 at about 9 A.M. in the hospital that on 14.4.1980 at about 8 A.M. there was altercation at his Dalan between Jamuna Yadav, Dasrath Yadav, Ram Subhag Yadav, Sardar Yadav and Ramayan Yadav and his father, namely, Dharilal Yadav for joint carpet etc. On the order of Jamuna Yadav and Dasrath Yadav, Ram Subhag Yadav, Sardar Yadav and Ramayan Yadav assaulted his father. Ramayan Yadav and Ram Subhag Yadav assaulted with Lathi on the head. Sardar Yadav and Ramayan Yadav assaulted his father with lathi on the hand and back due to which his father fell down and became senseless. The occurrence was witnessed by Srinath Yadav, Mohan Rajwar and others. He brought his father for treatment to the hospital. He died on 19.4.1980 at about 10.20 P.M. 3. On the aforesaid fardbeyan a formal first information report was drawn and investigation was taken up. After investigation chargesheet was submitted, cognizance was taken and the case was committed to the court of sessions for trial. During the trial Jamuna Yadav died. However, the trial court convicted the appellants as indicated above. 4. The defence of the appellants was that they were innocent and have falsely been implicated in this case out of enmity. 5. The prosecution in support of its case examined nine witnesses out of whom P.W.6 is informant and is son of the deceased. P.W.2 is brother of the informant. P.W.3 is cousin brother of the informant. P.W.4 is mother of the informant and P.W.5 is wife of P.W.3 and they have claimed to be eye witnesses of the occurrence. P.W.1 came after the occurrence. P.W.7 is a doctor, who examined the injuries on the person of the deceased. P.W.2 is brother of the informant. P.W.3 is cousin brother of the informant. P.W.4 is mother of the informant and P.W.5 is wife of P.W.3 and they have claimed to be eye witnesses of the occurrence. P.W.1 came after the occurrence. P.W.7 is a doctor, who examined the injuries on the person of the deceased. P.W.8 is also a doctor, who examined injuries on the person of P.W.4. P.W.9 is an Advocate-Clerk and has proved postmortem report. 6. Learned counsel for the appellants at the very outset pointed out that first information report was lodged after six days of the occurrence and no explanation for such delay has been brought on the record though police camp was in the village. Moreover, there was no intention to kill the deceased as the occurrence took place at the spur of the moment on sudden provocation and as such conviction of the appellants under section 302 of the Indian Penal Code and other allied sections of the Indian Penal Code is illegal. 7. It is evident from the fardbeyan and the evidence of the witnesses that there was altercation for joint articles such as carpet etc. and during the altercation it has been alleged that appellants, Ramayan Yadav and Ram Subhag Yadav assaulted the deceased with lathi on his head. Appellants, Sardar Yadav and Dasrath Yadav were also there. Dasrath is alleged to have given order for assault. The deceased Dharilal Yadav was examined initially by P.W.7, who found injuries on his person. However, the doctor, who held postmortem over the dead body could not be examined as he died but the postmortem was proved by P.W.9. It is true that occurrence took place on 14.4.1980 and fardbeyan was recorded on 20.4.1980 i.e. after six days. Though no explanation has been brought on the record but it can be said that the prosecution party was engaged in treatment of the deceased. Moreover, the eye witnesses have supported the prosecution case and their evidence cannot be discarded on the ground of delay in lodging the first information report. 8. It is manifest from the materials on record that there was altercation for joint carpet and other articles and during the altercation the deceased was assaulted by the appellants. Therefore, it can safely be said that occurrence took place at the spur of the moment on sudden provocation. 8. It is manifest from the materials on record that there was altercation for joint carpet and other articles and during the altercation the deceased was assaulted by the appellants. Therefore, it can safely be said that occurrence took place at the spur of the moment on sudden provocation. There is nothing on the record to show that, in fact, the appellants had intention to kill the deceased. Moreover, Dharilal Yadav died in the hospital after five days of the occurrence. In such a situation, it becomes clear that the appellants are guilty for the offence under section 304 Part II of the Indian Penal Code. Therefore, their conviction under sections 302, 302/149 and 302/114 of the Indian Penal Code is converted under section 304 Part II of the Indian Penal Code. Considering the fact that occurrence took place in 1980 i.e. more than 19 years ago the appellants are sentenced to the period already undergone and to pay a fine of Rs. 2000/- each within a period of three months and in default of payment of fine they shall have to go rigorous imprisonment for one year as indicated above the same shall be paid to the informant and in his absence the sons of the informant. 9. Thus, the appeal is dismissed with the aforesaid modification.