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1999 DIGILAW 521 (MP)

Bishan v. State of M. P.

1999-07-28

S.S.SARAF

body1999
JUDGMENT This criminal appeal has been filed by the accused-appellant against the judgment and order dated 22.8.1988 passed by III Additional Sessions Judge. Bhopal in Sessions Trial No. 142/85, whereby, the accused-appellant has been convicted for offence u/s 304 Pt. - II of IPC and sentenced to suffer rigorous imprisonment for seven years. The prosecution case in brief was that on 7.7.1985 at Bhadbhada, Bhopal, the complainant Geeta Bai' s younger sister Kaila Bai and sister-in-law Suwa Bai were quarrelling on account of a currency note of Rs. 10/- belonging to Kaila Bai having been taken by Suwa Bai. When the complainant Geeta Bai was pacifying both of them, the accused-appellant, brother-in-law of the complainant Geeta Bai. arrived and started beating Geeta Bai. The father of the complainant Geeta Bai and father-in-law of the accused-appellant, deceased Harji Baba, on hearing the cries of Geeta Bai, reached the spot and intervened. Thereupon, the accused-appellant gave an iron rod blow on the deceased Harji Baba which hit the rib of the deceased whereby he fell down, became unconscious and died. The other acquitted accused also joined the accused-appellant in the commission of offence. The complainant Geeta Bai lodged the FIR (Ex. P-1 ). After completition of investigation, challen for offences under section 147, 302 read with section 149 and 323 read with section 149 of IPC was submitted against the accused-appellant and other acquitted accused. The trial Court, after evaluating the evidence, held that the offences under section 147,302 and 323 read with section 149 of IPC are not made out against the accused-appellant and other acquitted accused. The learned trial Court, however, held that the prosecution has been able to prove the offence u/s 304 Pt.II against the accused-appellant beyond reasonable doubt. The learned trial Court accordingly convicted the accused-appellant u/s 304 part-II of IPC and sentenced him to suffer rigorous imprisonment for seven years by the impugned judgment. Aggrieved by judgment and order, the accused-appellant has filed the present appeal. The learned counsel appearing for the accused-appellant contended that he does not intend to challenge the finding of conviction recorded by the learned trial Court against the accused-appellant. Aggrieved by judgment and order, the accused-appellant has filed the present appeal. The learned counsel appearing for the accused-appellant contended that he does not intend to challenge the finding of conviction recorded by the learned trial Court against the accused-appellant. He, however, further contended that since the complainant, the deceased and the accused-appellant were close relations and a period of more than 10 years has elapsed since the date of incident, it would be proper if the accused-appellant is sentenced to imprisonment already undergone. He contended that the accused-appellant remained in custody as under trial prisoner for about 5 months and after conviction for about 6 months. As against this, the learned Panel Lawyer appearing for the State-respondent urged that the quantum of punishment as awarded by the trial Court is proper and does not call for any interference. It is evident from the record that the complainant Geeta Bai, the deceased Harji Baba and the accused-appellant were close relatives. It is also evident from the report Ex. P-4) of Dr. Vijay Mathur (PW 3) that the death of deceased Harji Baba was caused due to asphyxia as a result of aspiration of food material in the lung. Dr. Mathur (PW 3) has also opined that the injury caused by the accused-appellant to the deceased was not sufficient in the ordinary course of nature to cause death of the deceased Harji Baba. It is also evident that during the pendency of the appeal, both the complainant and the accused-appellant filed an application for compounding the offence and since the offence was not compoundable, the application was not allowed. It is also clear that the incident took place in the year of 1985 and the accused-appellant is not a habitual offender. The accused-appellant attacked his father-in-law, the deceased Harji Baba in a spur of moment and without pre-meditation. Under these circumstances, it shall not be conducive to send the accused-appellant again to jail after a lapse of about 14 years. For the reasons stated above, the appeal is partly allowed. The order of conviction recorded by the learned trial Court is maintained but the order of sentence to suffer rigorous imprisonment for seven years is modified and the accused-appellant is convicted to imprisonment already undergone and a fine of Rs. 6,000/- and in default to suffer rigorous imprisonment for two years. The order of conviction recorded by the learned trial Court is maintained but the order of sentence to suffer rigorous imprisonment for seven years is modified and the accused-appellant is convicted to imprisonment already undergone and a fine of Rs. 6,000/- and in default to suffer rigorous imprisonment for two years. The amount of fine, if realised, shall be paid as compensation to Rukmani Bai, the widow of the deceased. The accused-appellant shall appear before the ClM Bhopal to know the result of appeal on 1.9.1999.