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Judgment
Criminal Appeal (SJ) No.696 of 2015 as well as
Criminal Appeal (SJ) No.735 of 2015 arise out from common
judgment of conviction and sentence, on account thereof, heard
conjointly and are being decided by a common judgment.
Appellants, Akshay Yadav, Judge Yadav and Gaya
Yadav have been found guilty for an offence punishable under
Section 326 / 34 of the IPC and each one has been directed to undergo
R.I. for ten years as well as to pay fine appertaining to Rs.20,000/-
and in default thereof, to undergo R.I. for six months vide judgment
of conviction and sentence dated 30.09.2015 passed by the Additional
Sessions Judge, IXth, Rohtas at Sasaram in Sessions Trial
No.314/1997.
Jag Narayan Yadav, PW.4 recorded First Information
Report on 17.08.1994 at about 09:45 PM alleging inter alia that on
the same day at about 06:00 PM his Pattidar Gaya Yadav, Judge
Yadav and Akshay Yadav sons of Sita Ram Yadav were cutting the
mound of his house whereupon he along with his son Brij Nandan
Singh protested saying that on account of cutting of mound the house
will collapse. However, accused persons did not pay heed to it as a
result of which, altercation took place and during course thereof,
Judge Yadav and Akshay Yadav ordered to kill whereupon, Gaya
Yadav went to his house and came with Bhala and then, gave Bhala
blow over Brij Nandan Singh with an intention to commit murder
which cause injury at right intercostal region. Brij Nandan Singh fell
down. Seeing this, all the accused persons fled away. With the
assistance of his co-villager Ramashish Yadav, Guru Prasad Yadav and others Brij Nandan Singh has been carried to police station.
On the basis of the aforesaid First Information Report
Bikramganj P.S. Case No.104/1994 was registered whereupon the
investigation commenced and concluded by way of submission of
charge sheet which facilitated the trial before the court of Sessions
meeting with instant result, the subject matter of instant appeal.
Defence as is evident from mode of cross-examination
as well as statement recorded under Section 313 of the Cr.P.C. is that
of complete denial of the occurrence side by side false implication.
In order to substantiate its case prosecution had
examined altogether five PWs out of whom PW.1 is Guru Prasad
Singh @ Guru Prasad Yadav, PW.2 is Ram Ashish Yadav, PW.3 is
Sohrai Prasad Singh, PW.4 is Jagnarain Singh and PW.5 is Dr. Ram
Kishore Prasad. Side by side also exhibited Ext.a & 1/A-The injury
report of informant and his son.
Learned counsel for the appellant has submitted that
both the parties are close agnates as is evident from the evidence of
PW.3. There was no dispute in between them since before. It has also
been admitted that during rainy season the ridge are being repaired as
deposed by, PW.4 (Para-9). Furthermore, it has also been submitted
that there happens to be no criminal antecedent of the appellant. It
was spur of moment instant occurrence took place without any
intention as well as knowledge which is evident from conduct itself,
as neither repetition of blow was made nor vital part of body was
aimed at. Furthermore, though the injury has been found grievous,
which in the aforesaid facts and circumstances, did not warrant
extreme punishment, as inflicted by the learned lower court.
Furthermore, it has also been submitted that the injured Brij Nandan
Singh unfortunately died before his evidence. It has also been
submitted that from the evidence of PW.4 (para-6), it is evident that
Brij Nandan Singh left three sons and a daughter. The occurrence is
of the year 1994 and the appellants have faced rigor of trial for the
last 25 years so, taking into account the cumulative effect, it has been
submitted that the appellants who happens to be more than sixty years
of age should be given special privilege in the background of the fact
that they are ready to pay compensation in terms of Section 357 of
the Cr.P.C. to a tune of rupees one lac which they are ready to deposit
in favour of wife of injured Brij Nandan Singh coupled with sentence
already undergone.
The learned Additional Public Prosecutor though
opposed the submission but submitted that appellants have faced
rigor at trial for 25 years, as well as there happens to be complete
absence strain or acrimonious relationship amongst them, on account
thereof, court may consider the aforesaid eventuality.
After considering the rival submission inconsonance
with the facts of the case, the alternative submission having made on
behalf of appellant appears to be reasonable one is accepted
whereupon, maintaining the conviction under Section 326 of the IPC,
so far sentence part is concerned, same is modified as already
undergone subject to payment of rupees one lac in lieu of
compensation, which should be within four weeks from today,
subject to condition that if there happens to be violation at the end of
the appellants then in that event, the sentence so inflicted by the
learned lower court will automatically survive whereupon, appellants
will have to serve out the sentence so inflicted by the learned lower
court along with fine. On deposit of amount, the learned lower court
will notice the informant who will produce the wife of injured Brij
Nandan Singh, since deceased and on proper identification the
amount will be paid to her. The amount will be deposited by the
appellants in the civil court. This appeals is disposed of in terms
thereof.