BIRMANI PRASAD & ORS Vs. STATE OF BIHAR

JUDGEMENT

(1.) The accused-petitioners have preferred this revision application against the judgment and order dated 13.12.2001 passed by 3rd Additional District and Sessions Judge, Nalanda at Biharsharif in Cr. Appeal No.28/95 by which the appeal has been dismissed confirming the judgment and order dated 5.05.1995 passed by the learned Judicial Magistrate, Ist class in G.R.No.3362/89, Trial No.89/95. The prosecution case, in brief, is that on the written information given by the informant Sri Mahto, Silao (Nalanda) P.S. Case No.523/89 was instituted against the accused stating therein that on 7.12.1989 at about 7.00 A.M., the accused Brijnandan Prasad started to demolish the wall of the informant, which was protested by the informant. Thereafter, the accused Brijnandan Prasad gave Lathi blow to the informant. Birmani Prasad and Ganauri Mahto also came there and assaulted him with Lathi. On Hulla, Hari Prasad, Akhilesh Prasad and Sabitri Devi came there for rescue, who were assaulted with Lathi by Kamla Prasad and Nandu Mahto. The accused Tarkeshwari Devi and Chameli Devi caught hold the lock of hair of Sabitri Devi and assaulted her. After investigation, charge-sheet was submitted. Cognizance was taken. After trial, the learned Judicial Magistrate found the accused guilty. During trial, out of seven accused, Kamla Prasad died. The remaining six accused persons faced the trial. They were charged under Sections 147, 341, 342, 323, 325 and 337/34 of the I.P.C. They were found guilty under Section 342 of the I.P.C. and they were acquitted. The remaining accused were found guilty under Sections 147, 341, 323, 325 and 337 of the I.P.C. The accused Ganauri Mahto, Nandu Prasad and Virmani Prasad were sentenced to S.I for 6 months under Section 147 of the I.P.C., 3 months under Section 323 of the I.P.C., S.I. for 15 days under Section 341 of the I.P.C., S.I. for 2 years under Section 325 of the I.P.C. and S.I. for one month and fifteen days under Section 337 of the I.P.C. and all the sentences were to run concurrently. The accused Brijnandan Prasad, Tarkeshwari Devi and Chameli Devi were released under Section 4(1) of the Probation of Offenders Act on executing a bond of Rs.2000/- with two sureties of like amount each to keep peace and maintain good behaviour for a period of two years. The accused petitioners and Ganauri Mahto filed Cr. Appeal No.28/95, which has been dismissed by the learned appellate court vide the impugned judgment and order dated 13.12.2001.

(2.) Heard learned counsel for the petitioners and learned counsel for the State.

(3.) Learned counsel for the petitioners submits that during the appeal, the accused Ganauri Mahto died on 30.03.2001 and even against the dead person, the appeal has been dismissed, which has not been noticed by the learned appellate court. He further submits that the alleged occurrence has taken place on 7.12.1989 and more than 21 years have passed and the petitioners have been suffering from mental agony. There is no material on the record to show that they have committed any offence after that occurrence. The sentence passed by the impugned order deserves modification. He further submits that the petitioners have been in custody for some time. Learned counsel for the State could not controvert the contention of the learned counsel for the petitioners while opposing the prayer of the petitioners.