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2011 DIGILAW 2242 (PAT)

Madan Yadav v. State Of Bihar

2011-11-14

GOPAL PRASAD

body2011
JUDGEMENT Gopal Prasad, J. 1. Heard learned counsel for the appellant learned counsel for the State. 2. The appellant has been convicted for offence under Section 307 I.P.C. and sentenced to undergo rigorous imprisonment for seven years and fine of Rs. 500/- and in default of fine, further sentenced to undergo rigorous imprisonment for two months. 3. The prosecution case as alleged in the Fardbeyan of the informant Janardan Yadav that while he was sitting near a Ghura and stated Kamleshwari Yadav that he leave away from the village in connection with his livelihood. In his absence his mother was dragged and assaulted by accused Madan Yadav simply because her she goat grazed the crop of the filed of accused Madan Yadav. In the meantime Niro Yadav and Madan Yadav came abused which resulted in verbal altercation. In the meantime Madan Yadav came armed with arrow and assaulted him causing injury on his right chest. 4. On the Fardbeyan, F.I.R. was lodged. After investigation, charge sheet submitted for offence under Section 307 and allied Sections of Indian Penal Code. After commitment, the charge was framed for offence under Section 307/34 against both the accused Madan Yadav and Niro Yadav. 5. During trial seven witnesses were examined. P.W. 1, Murat Kumar Das, P.W. 2 Janardan Pd. Yadav, P.W. 3, Dr. R.P. Yadav, P.W. 4, Ram Bilash Yadav, P.W. 5, Arun Yadav, P.W. 6, Narain Yadav and P.W. 7 Shashi Shankar Prasad. P.W. 1 and 2 supported the prosecution case about assault by arrow by Madan Yadav. P.W. 5 and 6 have not supported the prosecution case and have been declared hostile. P.W. 3 is the doctor, who has stated that the arrow was piercing in front of chest of upper part and arrow was taken out by operation and during operation it was found that arrow was piercing plura and lung and has opined that injury was grievous in nature causing sharp pointed weapon. P.W. 7 is the I.O. 6. The trial court taking into consideration the evidence of witnesses convicted the appellant Madan Yadav and acquitted Niro Yadav. 7. However, taking into consideration the fact that occurrence took place for the advertisement about assault by Madan Yadav to the mother of the informant for grazing his crop by she-goat which culminated in verbal altercation and assault by arrow. The trial court taking into consideration the evidence of witnesses convicted the appellant Madan Yadav and acquitted Niro Yadav. 7. However, taking into consideration the fact that occurrence took place for the advertisement about assault by Madan Yadav to the mother of the informant for grazing his crop by she-goat which culminated in verbal altercation and assault by arrow. However, there is only one injury, though, doctor has find that said arrow was taking out by operation and during operation it was found that arrow was pierced plura and lung and said nature of injury was grievous by sharp pointed weapon. However, there is no report that said injury was dangerous to life, though, on vital part of the body. Neither depth of the injury nor size of the injury has been mentioned in the evidence of the doctor. Merely because the injury is grievous it cannot be infer that it was dangerous to life. However taking into consideration the fact and circumstance the occurrence took place in trifle matter and there is no repetition. Neither the size of arrow nor the size of injury has been mentioned to infer that the injury inflicted with intention to kill. 8. Hence in such circumstance, it cannot be inferred that injury was inflicted with intention to kill and hence order of conviction and sentence recorded under Section 307 I.P.C. is not sustainable and is require to be substituted for offence under Section 324 I.P.C. 9. However, having regard to the fact that offence is assault by arrow and hence offence under Section 324 I.P.C. is made out. The appellant has remained in jail from 18. 01. 1992 to 10. 06. 1992 during trial and again remained in jail for about a month after conviction. 10. Hence end of justice of justice shall meet by sentencing the appellant for the period already undergone. Hence the appeal is allowed in part.