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2004 DIGILAW 61 (JHR)

Shabir @ Md. Shabir v. State of Bihar

2004-01-13

HARI SHANKAR PRASAD

body2004
Judgment Hari Shankar Prasad, J.- This criminal appeal is directed against the judgment of conviction dated 30.6.1998 and order of sentence dated 1.7.1998 passed in Sessions Trial No. 63/93, whereby and whereunder the learned Sessions Judge. Singhbhum East, Jamshedpur held the sole appellant guilty under Section 304 IPC and convicted and sentenced him to undergo RI for five years and to pay a fine of Rs. 5000/- and in default of payment to further undergo RI for six months. 2. The prosecution case in brief is that Humayu, informant, gave. a written report to the Officer Incharge, Mango P.S. to the effect that on 7.11.1988 at about 9.30 in the night he had gone to the shop of Kallu Tirkey situated by the side of his house and at that time appellant Shabir and others were taking liquor from before and he asked the appellant to provide him liquor also, whereupon appellant got angry and assaulted him with brickbats causing injuries on his left cheek, on the upper portion of head, neck and on entire head and he fell down and became unconscious. Thereafter his family members took him to his house, where also he remained unconscious and thereafter he regained consciousness and on 8.11.1988 he has come to P.S. with his wife by Rickshaw and lodged the FIR. It was alleged in the FIR that some days before he had given Rs. 500/to Shabir as loan and he had requested several times for refund of loan. It appears that as a result of which appellant has assaulted him with brickbats. Wife of Kallu Tirkey and two other persons have seen the occurrence. On this piece of statement, Mango P.S. Case No. 163/88 under Section 337 IPC was registered and after investigation police submitted chargesheet under Section 304 IPC. The written report was first submitted to Azad Nagar P.S. and thereafter it was sent to Mango P.S. for institution of the case, where case was instituted as aforesaid. After submission of chargesheet cognizance in the case was taken and case was committed to the court of sessions. The learned Sessions Judge, after recording evidence of witnesses, both oral and documentary, came to a finding, held the appellant guilty and convicted and sentenced him as aforesaid. 3. Prosecution has examined four witnesses. PW 1 is Sama Khatoon, widow of the deceased. PW 2 is Yasmin Bano, daughter of the deceased. The learned Sessions Judge, after recording evidence of witnesses, both oral and documentary, came to a finding, held the appellant guilty and convicted and sentenced him as aforesaid. 3. Prosecution has examined four witnesses. PW 1 is Sama Khatoon, widow of the deceased. PW 2 is Yasmin Bano, daughter of the deceased. PW 3 is a medical officer, who conducted the post mortem examination on the dead body of Humayu and PW 4 is a. formal witness, who has proved the case diary and FIR. 4. PWs 1 and 2 have fully supported the case of the prosecution. Further with the death of Humayu, the written report given by Humayu became dying declaration because soon after giving the statement he died. 5. While assailing the judgment, the learned counsel for the appellant submitted that he has got nothing to say about the materials on record and the evidence on record, but he would submit only one point that the case is of the year 1988 and since then appellant has faced rigours of trial for 15 years and it is a very long period and all the times he suffered mental tension. It was also pointed out that for some days or months appellant remained in custody also and, therefore, considering this aspect of the matter and also the fact that the trial prolonged for such a long time not on his fault but he faced the rigours of trial during all the years. 6. Considering the submissions of the learned counsel for the appellant and after perusal of evidence on record, it appears that beside.s the statement of Humayu (deceased), which is now a dying declaration, there is no other material on record, which corroborates the statement given by Humayu by the evidences of PWs 1 and 2. Witnesses, who are said to have seen the occurrence, as per FIR, have not been examined and wife of Kallu Tirkey, who is said to have seen the occurrence has also not been examined. Similarly two other unknown persons, who are also said to have seen the occurrence, have not been examined and I.O. has also not been examined in this case. 7. Similarly two other unknown persons, who are also said to have seen the occurrence, have not been examined and I.O. has also not been examined in this case. 7. Cohsidering the fact that there is a statement of Humayu, which is nothing sort of dying declaration and also the fact that appellant remained in jail for one or two months, although he has been convicted to RI for five years but considering the fact that the trial is lingered from 1988 till 1998 and appeal is still pending and in all the years appellant has remained in mental tension and faced the rigors of trial, I think that the period already undergone by him in jail will meet the ends of justice. 8. In the result, this appeal is dismissed with modification in the period of sentence to the period already undergone by the appellant in jail.