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2010 DIGILAW 904 (JHR)

Uday Yadav v. State of Jharkhand

2010-09-16

PRADEEP KUMAR

body2010
JUDGMENT : PRADEEP KUMAR, J. 1. This appeal is directed against the judgment of conviction dated 27th November, 2002 and order of sentence dated 28th November, 2002 passed by Sri Kumar Ganesh Dutt., 1st Additional Judicial Commissioner, Khunti in Sessions Trial No. 369 of 1996, by which judgment he found the Appellant guilty u/s 304 Part II of the Indian Penal Code and sentenced him to undergo R.I. for 5 years and to pay a fine of Rs. 1,000/- and in default of payment of fine further to undergo R.I. for 1 year. 2. It is submitted by the learned Counsel for the Appellant that the occurrence took place on 20.11.95 at about 9 a.m., but no F.I.R. was lodged, rather it will appear that the accused himself, who is brother helped the injured and brought him to Bundu Hospital and from there he was taken to Seva Sadan, Ranchi and from there he was taken to RMCH and during entire treatment the accused Uday Yadav and his brother, Vijay Yadav were present in the Hospital and only after the death of the victim on 24.11.95 this F.I.R. was lodged against the Appellant claiming that he gave a blow by some wooden piece as such the conviction of the Appellant u/s 304 Part II of the Indian Penal Code is not sustainable. It is further submitted that at least the conduct of the Appellant and his family members will show that they were neighbours and altercation took place only with regard to taking of one pumpkin and there is evidence that since he cut the pumpkin plant that this occurrence took place. 3. On the other hand, learned Counsel for the State has opposed the prayer and submitted that although it is apparent from the evidences that the Appellant and the injured-deceased were neighbours and altercation took place due to the fact that the deceased's son had gone for asking one pumpkin, but the accused refused, whereupon, the injured deceased, Durga Pahan became furious and he went and cut the plants itself, whereupon there is allegation that the accused-Appellant inflicted a blow on the head of the deceased due to which he was injured. In that view of the matter, the Court has taken a lenient view and also conduct of the Appellant in taking to the hospital and subsequently taken to the RMCH and ultimately he died. 4. In that view of the matter, the Court has taken a lenient view and also conduct of the Appellant in taking to the hospital and subsequently taken to the RMCH and ultimately he died. 4. After hearing both the parties and going through the record, I find that the prosecution case was started on the basis of a Fardbeyan given by the informant, Lakhimuni Kumari daughter of the deceased, Durga Pahan at RMCH, Ranchi on 25.11.95 at 10 a.m., where she has stated that on 20.11.95 her father had cut the pumpkin plant after entering into the house of the accused, Uday Yadav then he gave a blow on his head by wooden piece. Thereafter, he was taken to Hospital at Bundu then he was taken to Seva Sadan Hospital, and from there he was referred to RMCH, Ranchi and ultimately he died. 5. On the basis of the said F.I.R. police registered a case u/s 302 of the Indian Penal Code and after investigation, police submitted charge-sheet u/s 302 of the Indian Penal Code. 6. Since, the case was exclusively triable by a Court of Sessions, the same was committed to the Court of Sessions and the charges were framed u/s 302 of the Indian Penal Code. Lastly, the trial was held by Additional Judicial Commissioner, who found the Appellant guilty as aforesaid. 7. It appears that in course of trial, the prosecution has examined 8 witnesses. 8. P.Ws. 1 and 2, namely, Anant Singh Munda and Rishikesh Singh Munda, they have been declared hostile as they have not support the prosecution case. 9. P.W.3, Gurubari, wife of the deceased, who stated in Court that on the date of occurrence she was informed by her son that the accused-Appellant, Uday Yadav gave a Mungra blow on the head of his father when he cut the plant of pumpkin after entering into the house of the accused, Uday Yadav and he became unconscious and he was taken to hospital. Subsequently, he was taken for treatment to RMCH where he died. 10. P.W.4, Lakhimuni Kumari-informant and her brothers P. Ws. 5 and 6, namely, Trilok Pahan and Shyam Dado Pahan, who have supported the prosecution case. 11. Subsequently, he was taken for treatment to RMCH where he died. 10. P.W.4, Lakhimuni Kumari-informant and her brothers P. Ws. 5 and 6, namely, Trilok Pahan and Shyam Dado Pahan, who have supported the prosecution case. 11. The informant-P.W.4, who has stated that she also saw that after cutting the pumpkin plant there was some altercation between her father and accused and the accused gave a Mungra blow on the head of his father, causing him injury, he became unconscious. Subsequently, after his death she gave her fardbeyan at RMCH, which she has proved as Ext. 1. In her cross-examination, she stated that after the occurrence her father was taken back by the accused, Uday Yadav and his brother, Vijay Yadav and father of the Appellant, Shibu Ahir to her house. Subsequently, he was taken to Bundu Hospital. When his condition became unconscious he was referred to Seva Sadan and from there he was referred to RMCH, Ranchi and they were twice present at RMCH during treatment. 12. The other two witnesses also supported the said fact. The doctor found that the deceased died due to head injury, which was caused by hard and blunt substance by Mungra. In his cross-examination, he stated that injury may be possible by fell from high place. 13. Thus, from the evidence adduced, it is apparent that although there was no intention to cause any death and when on refusal to give a pumpkin to the informant's son then his father-deceased became furious and went to the bari of the accused and cut the pumpkin plant then the accused gave a Mungra blow. There was no intention and taking in view that the accused helped the injured in taking him to the Hospital and subsequently to Seva Sadan and from there to RMCH and they were throughout present at RMCH during treatment. The Court has taken a lenient view and found the Appellant guilty u/s 304 Part (II) of the Indian Penal Code. I find nothing to disturb the said finding the conviction of the Appellant u/s 304 Part (II) is confirmed. 14. The Court has taken a lenient view and found the Appellant guilty u/s 304 Part (II) of the Indian Penal Code. I find nothing to disturb the said finding the conviction of the Appellant u/s 304 Part (II) is confirmed. 14. Seeing the good conduct of the Appellant and his family members, the Appellant has already suffered in jail during trial for about 2 years and 8 months since he has remained in custody throughout since 5.12.95 to 27.6.98 and after conviction also he has remained in custody for 1 month and the fact that he has undergone the rigor of trial since 1995 and also has stated by his counsel he helped the injured in taking into Hospital and undertaking the cost of treatment also. 15. In that view of the matter, the sentence of 5 years is altered to the period of 2 years and 8 months already undergone by the Appellant. 16. With the aforesaid alternation in the sentence; the appeal is dismissed. 17. The Appellant is on bail, he is discharged from the liability of his bail bond.