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2001 DIGILAW 931 (PAT)

Gunilal Yadav v. State Of Bihar

2001-10-03

P.N.YADAV

body2001
Judgment P.N.Yadav, J. 1. The appellant suffered conviction and sentence of rigorous imprisonment for five years and fine of Rs. 3,000/- under Section 304, Part II of the Indian Penal Code (hereinafter to be referred to as the Code) vide the judgment and order dated 15.6.1990 passed by the Sessions Judge, Saharsa in Session Trial No. 3 of 1984. 2. The prosecution case as unfolded in the FIR and the evidence of the prosecution witnesses lay within a narrow compass. At about 7.00 p.m. on 29.6.1983, the deceased Fideshwar Yadav & Fidia aged about 10 years returned to a his house after getting his buffaloes grazed. Just then the appellant Guni Lal Yadav went to his house, caught hold of his hands and asked him to return his Jholi of tobacco failing which he would do away with him. The deceased told him that he did not know about his Jholi nor did he take the same. Thereupon the appellant assaulted him with fists and slaps and he taking the deceased with him proceeded to his house. The informant Parmeshwar Yadav (PW 8), who was already there protested against highhanded and illegal act of the appellant and he requested him not to assault and drag the deceased. However, his request and persuasion went unheeded for by him. After the appellant took the deceased with him about 25 yards south of the house of one Telar Yadav he threw him on the ground as a result of which he sustained injury on his head and he started crying. Hearing his cry, the witnesses such as Sanichar Yadav (PW 4), Tetar Yadav (PW 5), Bhuneshwar Yadav (PW 6) and others arrived there and they tried to get the deceased released from the clutches of the appellant. But the appellant did not listen to their words and he did not release the deceased and he took him to his house where he mercilessly assaulted him and confined him for about two hours. Thereafter, the appellant took the deceased in unconscious condition to his house and threw him on the ground. The informant wanted to remove him to the hospital but he could not as the deceased succumbed to his injuries just then. 3. As it was late night the informant did not go to the police station to lodge information. He could go to the Raghopur Police Station only in the next morning. The informant wanted to remove him to the hospital but he could not as the deceased succumbed to his injuries just then. 3. As it was late night the informant did not go to the police station to lodge information. He could go to the Raghopur Police Station only in the next morning. His fardbeyan (Ext. 1) was recorded by J. Guria, Sub-Inspector of Police of Raghopur Police Station on the basis of which the formal FIR was drawn up and the case was registered under Section 302 of the Code. Investigation was taken up. Inquest report was prepared. The dead-body of the deceased was sent for post-mortem examination. After completion of investigation and receipt of post-mortem examination report the charge-sheet was submitted under Section 302 of the Code and finally the trial commenced after commitment. 4. The appellant did not enter into defence. However from the trend of cross-examination of the prosecution witnesses and the statement of the appellant recorded under Section 313, Cr PC the defence seemed to be that of total denial and false implication. 5. As many as 12 witnesses were examined on behalf of the prosecution to bring home the charge levelled against the appellant. The learned Sessions Judge after taking the facts, circumstances and evidence brought on records into account found and held the appellant guilty and he convicted and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 3,000/- and in default of payment of fine to undergo rigorous imprisonment for one year under Section 304, Part II of the Code, acquitting him of the charge under Section 302 of the Code vide the impugned judgment and order. 6. Aggrieved by the judgment and order of conviction and sentence recorded against him the appellant preferred the instant appeal. The appellant in his memorandum of appeal assailed the impugned judgment and order of conviction and sentence on the ground that it was not based on law and facts and correct appreciation of evidence rather it was based on mere surmises and conjuctures. However, in course of hearing, the learned counsel for the appellant submitted that he no longer challenged and assailed conviction and he be heard only on quantum of sentence awarded to the appellant. It was thus the appeal was heard only on the point of sentence. 7. However, in course of hearing, the learned counsel for the appellant submitted that he no longer challenged and assailed conviction and he be heard only on quantum of sentence awarded to the appellant. It was thus the appeal was heard only on the point of sentence. 7. It was contended that the incident leading to death of the deceased took place on 29.6.1983 and since then the appellant had been running to courts and he had thus obviously already been put to a lot of harassment and mental agony. Another contention was that the appellant had suffered rigour of jail life inasmuch as he had served jail term of over four years and seven months. In the light of the aforesaid contentions it was submitted that the appellant should be let off with sentence of imprisonment for the period already undergone by him. The learned APP also conceded to the submission. 8. Regard being had to the facts and circumstances of the case and the nature of the offence and also keeping in view the fact that the appellant had already suffered tremendous harassment and mental agony as well as rigour of jail life during his incarceration for over four years and seven months. He was sentenced to undergo imprisonment for the period already undergone by him and also to pay a fine of rupees four thousand and in default of payment of fine to undergo rigorous imprisonment for nine months. The aforesaid sentence shall perhaps meet the ends of justice. 9. In the result, the appeal is dismissed with the aforesaid modification in sentence. Let the appellant be directed to deposit the amount of fine within two months from the date of receipt/production of a copy of this judgment and order in the court below.