UDAY YADAV Vs. THE STATE OF JHARKHAND

JUDGEMENT

(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 under Section 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 under Section 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.) 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.