ANIRUDHYADAV Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE appellant under Section 307, and Shambhu Nath Yadav and Prabhu Yadav under Section 307/34 of the Indian Penal Code were prosecuted on behest of Prameshwar Yadav (PW 4) with accusation that on 23rd June, 1987, while Prameshwar Yadav was going home, he was intercepted by the appellant and two others, who caught hold of him near Mahavir As than. It was alleged that on exhortation made by Shambhu Nath Yadav, while Prabhu Yadav dealt fists and slaps on him, appellant dealt dagger blows on his right shoulder, abdomen and also above the eyebrow, and with these accusations, first information report was drawn up and investigation commenced. During investigation, the Investigation Officer, (PW 6) recorded statement of witnesses, visited place of occurrence, got the injured examined by the doctor and on conclusion of investigation, laid charge -sheet before the Court, pursuant to which on commitment of case to the Court of Sessions, the appellant alongwith Shambhu Nath Yadav and Prabhu Yadav were put on trial. In the eventual trial, that commenced against them, altogether seven witnesses were examined by the State including injured, Mangelu Yadav, brother of the injured, (PW 1), Ramdeo Yadav, brother -in -law of the injured (PW 2), Gajendra Yadav PW 3, some formal witnesses, Investigating Officer and also Dr. P.N.P. Gupta (PW 5). Defence too examined one witness ostensibly to counter the allegations attributed to the appellant and others, and the Trial Court on appreciation of evidence placed on the record, while acquitted Shambhu Nath Yadav and Prabhu Yadav for insufficiency of good evidence operating adverse to them, rendered verdict of guilt against the appellant, finding him guilty under Section 307 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for seven years on that count.

(2.) VARIOUS submission were canvassed at bar on behalf of the appellant to assail the finding recorded by the Court below and it is sought to be urged that though the occurrence was shown to have taken place in midnight of 23rd June, 1987, the doctor, who examined the injured, stated to have clinically examined him at 1.20 noon, after lapse of about more than 13 hours. It is urged that, this fact, however, cannot be lost sight of that even though injured was examined by the doctor after more than 13 hours, the age of injury, in estimation of the doctor, was only three hours old which was quite in -congruous with the edifice of the prosecution case, and the prosecution case on such inconsistency of the finding of doctor, had to be discarded in entirety. Contentions were raised that it would appear from the tenor of the first information report, of which nonelse but the injured was the maker, that he sustained three injuries with sharp edged weapon on his person including injuries on his right shoulder, but there was no corresponding finding of the doctor about presence of any incised injury on the right shoulder of the injured. It is urged that only interested and partisan witnesses were sought to be examined, at trial, entirely to the exclusion of independent witnesses and if testimony of PW 1 was to be given any credence, houses of large number of persons situate around the place of occurrence and many of them had flocked at the place of occurrence to see the incident, but State had not chosen to examine any of them at trial, and the last argument canvassed at bar on behalf of the appellant was that though the doctor found two injuries grievous in nature, regard being had to their specification, nature of these injuries clearly fall within the ambit of Section 323 of the Indian Penal Code and would not constitute grievous injury, as enjoined under Section 320 of the Indian Penal Code and in quick succession, it is urged that the prosecution was launched against the appellant in the year 1987, and since the appellant has suffered ordeal of protracted trial for about 16 years and has also remained in custody about three months both as undertrial prisoner and also during post conviction period, the Court is expected to take into consideration all these mitigating circumstances during consideration of imposition of sentence on the appellant. Learned counsel appearing for the State resisted contentions raised on behalf of the appellant.

(3.) HOWEVER , regard being had to the nature of injuries, I find myself in agreement with the submissions made by learned counsel for the appellant about this being a case under Section 323 of the Indian Penal Code, and since the appellant has remained in custody for about three months, he is sentenced to the period already undergone in custody and in addition to that he is sentenced to pay a fine of Rs. 1,000/ - (one thousand), in default of which he would suffer imprisonment for seven months and with these modification, the appeal is dismissed.