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2007 DIGILAW 1290 (PAT)

Hari Narayan Giri v. State Of Bihar

2007-08-06

INDU PRABHA SINGH

body2007
Judgment INDU PRABHA SINGH, J. 1. This appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (in short the "Code") is directed against the judgment dated 8.12.1992 passed by the learned 4th Additional Sessions Judge, Saran at Chapra convicting the appellants under Section 304/34 of the Indian Penal Code and sentencing them to undergo rigorous imprisonment for eight years each. 2. From the prosecution case it appears that on 22.12.1980 at about 7 a.m. the accused persons of the case were abusing the mother of the informant Ram Ashish Giri (PW 6) for cutting the Mooj Plant from their field. On hearing the hulla the informant came there and he found that the accused persons had thrown his mother down and were variously assaulting her with fists, sticks and bricks and also when his brothers wife tried to save the deceased Munna Devi they also assaulted her. While the Munna Devi was being removed to the hospital she died in the way FIR was lodged. The police after completing the investigations submitted charge-sheet under Section 302/34 of the Indian Penal Code. A charge also under Section 323 of the Indian Penal Code was framed for assaulting the wife of the brothers of the informant. The police after completing the investigation submitted the charge-sheet. The cognizance of the offence was taken and after necessary enquiry the case was committed to the Court of session. It came up before the learned Additional Judge named above who convicted the appellants under the first part of Section 304 of the Indian Penal Code and sentenced them to undergo Imprisonment for eight years each. 3. Before proceeding further I would like to mentioned that originally there were three accused, namely, Shesh Narayan Giri, Hari Narayan Giri and Subh Narayan Giri. Out of them Subh Narayan Giri died in the course of trial whereas the accused Hari Narayan Giri (appellant No. 1) died during the pendency of the present appeal. In this way this appeal has been contested only on behalf of the appellant No. 2, Shesh Narayan Giri. 4. In this appeal the appellant has contended that the prosecution has examined 8 witnesses out of whom PW 7 is doctor and PW 8 is the Investigating Officer. The rest have claimed to be the eye-witnesses. In this way this appeal has been contested only on behalf of the appellant No. 2, Shesh Narayan Giri. 4. In this appeal the appellant has contended that the prosecution has examined 8 witnesses out of whom PW 7 is doctor and PW 8 is the Investigating Officer. The rest have claimed to be the eye-witnesses. It has further been contended that PW 1 has frankly admitted that he and the appellants are on litigating terms from before. So far as the police officer is concerned (PW 8) he did not find any blood mark at the alleged place of occurrence. The defence has examined two witnesses who proved the injuries on the person of Sabitrl Devi wife of the accused Subh Narain Choudhary (since deceased). The appellant has contended that the prosecution has completely failed to prove its case and, therefore, he is entitled to be acquitted. 5. The parties have been heard at length on the merits of this case. On behalf of the prosecution it has been contended that the evidence adduced in the Court is consistent and trust worthy and the same cannot be set aside. It has further been contended by the defence that the learned Court below has thoroughly discussed the evidence on record and has found the case true. After analyzing the evidence on record he has concluded that the case under Ist part of Section 304 of the Indian Penal Code has been made out and accordingly he has convicted the appellant to undergo rigorous imprisonment for eight years. 6. The aforesaid submission on behalf of the prosecution has been challenged on behalf of the appellant. He has contended that the prosecution evidence is far from satisfactory and does not inspire confidence. It was further contended on his behalf that the appellant is entitled to be acquitted as the prosecution has failed to prove its case against him. 7. I have carefully gone through the evidence on record. I have also gone through the judgment under appeal and discussion made by the learned Additional Sessions Judge with respect to the evidence adduced in the Court. I find that the learned Additional Sessions Judge has given very cogent reason for believing the prosecution case and evidence of the prosecution witnesses. I have carefully gone through the evidence on record. I have also gone through the judgment under appeal and discussion made by the learned Additional Sessions Judge with respect to the evidence adduced in the Court. I find that the learned Additional Sessions Judge has given very cogent reason for believing the prosecution case and evidence of the prosecution witnesses. In view of his thorough discussion I do not propose to repeat the same here because I am in full agreement with his conclusions. Under this circumstance the expression of general agreement with lower Court reasonings would suffice as held by the Hon ble Supreme Court in the case of Girija N. Devi v. B.N. Chaudhary, AIR 1967 SC 1124 . 8. It has, however, been submitted that the alleged occurrence had taken place on 22.12.1980 abut 27 years ago. Two of the accused persons are already dead. This appellant was taken into custody on 8.12.1992 and he remained in jail till 28.8.1996 after which he was released on bail. In this connection it has also been pointed out that the appellant has been convicted under the Ist part of Section 304 of the Indian Penal Code which entails a punishment for imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. 9. Learned counsel for the appellant has, however, submitted that the appellant was already in custody for about four years in this case. Relying on the case of K. Ramkrishnan Unnithan v. State of Kerala, 1999 (1) East Cr C 976 (SC) : AIR 1999 SC 1428 , it has been submitted that under similar situation the Hon ble Supreme Court was pleased to reduce the sentence of the convict to the period already undergone. No doubt before the Hon ble Supreme Court the case was under Part II of Section 304 of the Indian Penal Code. But it has been observed that the incident is of the year 1985 and more than 13 years had already elapsed. The accused has already undergone sentence of about four years. In such a circumstance the Hon ble Supreme Court has observed that for his conviction under Section 304 Part II of the Indian Penal Code his sentence may be reduced to the period already undergone. The accused has already undergone sentence of about four years. In such a circumstance the Hon ble Supreme Court has observed that for his conviction under Section 304 Part II of the Indian Penal Code his sentence may be reduced to the period already undergone. A similar view has already been taken in the case of Kartar Singh v. The State of Punjab, AIR 1988 SC 2122 . As noticed above the alleged occurrence is dated 22.12.1980 and about 27 years have elapsed since then. It appears that the assault was not premeditated and had taken place on the spur of the moment resulting in severe injury to Munna Devi who subsequently died. It further appears that the appellant has remained in custody for about four years. Under these facts and circumstance I think that the ends of justice will be met if the sentence of the appellant is reduced to the period already undergone. 10. In the result this appeal is dismissed with the modification in the sentence and it is ordered that sentence of the appellant is reduced to the period already undergone. 11. With the aforesaid modification in the sentence this appeal is dismissed.