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2016 DIGILAW 209 (PAT)

Sukhari Pandit v. State of Bihar

2016-02-29

ANJANA PRAKASH, RAJENDRA KUMAR MISHRA

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JUDGMENT : ANJANA PRAKASH, J. 1. The Appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to Rigorous Imprisonment for life and fine of Rs. 2,000/- by judgment dated 9/15.12.2009 passed by the Additional Sessions Judge, F.T.C. II, West Champaran, Bettiah in Sessions Trial No. 313 of 2006. 2. The case of the prosecution according to the informant P.W. 3 Mishri Pandit is that on 25.01.2006 the Appellant Sukhari Pandit started abusing his wife so she protested and despite protest, he again abused her and thereafter, she again protested at which the Appellant whipped out a knife and assaulted her on account of which she fell down injured. This information was given soon thereafter, on the same day at 5.30 P.M to the police authority. 3. During trial the prosecution examined seven witnesses and from their evidence, it appears that it is not a case under Section 302 IPC rather one which would come under Section 304 IPC as is evident from the evidence of the witnesses which we are discussing herein below. 4. P.W. 1 Bhukal Ram merely stated that he had seen the Appellant assaulting the deceased and there was no previous dispute between them. 5. P.W. 2 Maqubool Ahmad also stated merely about the Appellant having been assaulted the deceased at 4 P.M in the evening. 6. P.W. 3 Mishri Pandit who is the informant proves his fard-beyan which is Ext. 1 and stated that in course of altercation, the Appellant assaulted the deceased after which the Appellant was caught by the villagers and handed over to the Police. He also proves the seizure list in regard to the knife which is Ext. 2. 7. P.W. 4 Harilal Paswan has no doubt been declared hostile but in his Chief he states that he had seen the accused being taken away by the Police Officials. 8. P.W. 5 Dr. Sarangdhar Jha, found the following injuries on the person of the deceased. “I. Incised would at left fore-arm 2” x 1 x 1” cutting soft tissues. II. Incised wound at left side of abdomen 3” x 2” into small intestime was coming out of the wound. III. Incised wound at above injury no. II 1½” x ½” x 6”. IV. Sarangdhar Jha, found the following injuries on the person of the deceased. “I. Incised would at left fore-arm 2” x 1 x 1” cutting soft tissues. II. Incised wound at left side of abdomen 3” x 2” into small intestime was coming out of the wound. III. Incised wound at above injury no. II 1½” x ½” x 6”. IV. An incised wound infront of chest in between breast 1” x 1/2” x 1/2” deep upto sternum bone only.” From the evidence of this witness we are no doubt found that the assault was repeated. 9. P.W. 6 Azharuddin also stated that on the date of occurrence the Appellant started quarreling with the deceased in course of which he assaulted her. He also stated that the Appellant was caught right after the occurrence and taken away by the Police. 10. P.W. 7 Laliteshwar Pandey, Police Officer who assumed investigation on 02.02.2006 is formal in nature since he did not do any investigation. 11. From the evidence discussed above, we find that consistent story of the husband of the deceased i.e. P.W. 3 and P.W. 6 Azharuddin is that in course of quarrel the assault took place in the heat of passion. Evidently in such circumstances, even though the Appellant assaulted the deceased repeatedly it appears to be without any intent and only with knowledge of causing serious injury likely to result in death. 12. For the aforesaid reasons, the conviction of the Appellant is altered to 304 I IPC and sentence is reduced to the period already undergone by him i.e. more than 10 years. 13. With the modification in conviction and sentence, the Appeal is dismissed. Appeal dismissed.