Sheo Balak Prasad Yadav vs The State of Jharkhand

Pradeep Kumar, J.

By Court

This appeal is directed against the judgment of conviction and order of sentence dated 27th November, 2002 passed by Additional District &

Sessions Judge, X Ith, Dhanbad in Sessions Trial No. 510/94, by which judgment he found the Appellant guilty under Sections 304 Of the Indian

Penal Code and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs. 500/- and in default of payment of fine further imprisonment of

six months.

It is submitted by the learned Counsel for the Appellant that during trial the only evidence has come from the evidences is that the Appellant

used to live in the same room with the deceased, Chandrika Prasad yadav and there was some fight with him with regard to spelling of chair, but

the same was intervened by the neighbour and lastly they have compromised the matter and stayed in the same room. On 31.12.91 they had taken

food together and in the morning of 1.1.92 the deceased was found unconscious lying down on the stairs and since the Appellant had gone out of

station it was presumed that he committed the occurrence and there is no evidence that the Appellant has committed the offence and as such the

finding of the conviction is not correct and fit to be set aside.

Learned Counsel for the State has opposed the prayer and submitted that all the witnesses have stated it was the Appellant, who was residing

with the deceased in the same room and there was altercation in between them with regard to the some spelling of chair just on the previous night

and after intervention of the neighbour they cooked and ate together and slept in the same room and when in the next morning the deceased was

found unconscious lying down on the stairs and the Appellant was not present there, hence there is direct suspicion the accused, who has

committed the offence. In that view of the matter, the Appellant has rightly been convicted and it requires no interference by this Court.

After hearing both the parties and going through the record, I find that the prosecution case was lodged after a long delay of one month on

2.2.92 by the informant, brother of the deceased P.W.8, Yubraj Prasad Yadav, who stated that after conducting the last rites of the deceased

when he came back to Dhanbad where his brother was residing with the accused, then, he came to know that a light took place between the

accused and his brother on 30-31.12.91 and thereafter his brother was found unconscious lying down on the stairs and the accused had ran away

from the place of occurrence.

On the basis of the said F.I.R. police registered a case u/s 302 of the Indian Penal Code and after investigation police submitted charge-sheet in

the case.

Since, the case was exclusively triable by a Court of Sessions, the Appellant was charged u/s 302 of the Indian Penal Code and tried.

It appears that in course of trial, the prosecution has examined 8 witnesses.

P.W. 1 is Krishnadeo Kumar, he has stated that both the accused and the deceased used to live in his house at Dhansar in one room and they

used to earn their livelihood by doing tuition. He has further stated that there was a fight between the Appellant and the deceased with regard to

spelling of chair and when he wanted to intervene the matter, they went on fighting then he called the neighbour, Nathu Ram-P.W.4. He came there

and he also intervened. Then they began to live together in the same room and on 31.12.94 they had taken together food, but in the morning at

about 7.30 a.m. Chandrika Prasad was found unconscious lying down on the stairs and the room of Chandrika Prasad was opened and the

accused, Sheobalak Prasad was not present there. He inquired about the Sheobalak Prasad, but he could not locate him. Thereafter with the help

of neighbours the deceased in unconscious condition was taken to Hospital where he died. After four days Chandrika''s brother came then he took

the dead body to his village after postmortem. On inquiry about the whereabout of Sheobalak Prasad, but he was not found even from hi;; village.

P.W.2 is Tara Pado Rai, he has staled that that there was a fight between the deceased and this accused on 31.12.1991 and after the death of

deceased he never met the accused Appellant.

P.W.3 is Jageshwar, he has also stated that one day before the occurrence of 1.1.92 there was a fight between the deceased and the accused.

On 1st January, 1992 he saw Chandrika Prasad Yadav was unconscious and was taken to the hospital with the help of the persons of Mohalla

where he subsequently died. He identified the accused in Court.

In his cross examination, he stated to the police that Shivabalak had assaulted the deceased and ran away, but he had not seen by his own eyes.

P.W.4 is Nathu Ram, he has slated that when there was fight between the deceased and the accused he went there on being called by P.W.1

and when they had taken the injured to hospital the Appellant was not present there. The quarter where Shivabalak lived was at 2-3 feet distance

from his quarter.

P.W.5 is the Dr. Binod Kumar, who proved the postmortem report and he stated that he found swelling 5"" x 4"" on the top of the head in

middle portion as anti-mortem injury. On cut blackish blood seen under the scalp, except there was no external injury. In his opinion, the death due

to coma as a result of aforementioned intracranial hemorrhage caused by hard and blunt force impact on head.

13.P. Ws. 6 & 7 are Kailash Prasad Yadav and Jagdish Prasad Yadav, have also stated the same thing.

P.W. 8 is the informant Yubraj Prasad Yadav, the brother of the deceased has stated that on getting information on 2nd January, 92 that

Chandrika Prasad was admitted in the hospital and was unconscious. After the news he went to the hospital and after his death he had taken him

to his house for cremation. In December, 1991 he came for knowing the cause of death. Subsequently, he came to know that there was a tight

between the deceased and the accused and in the next morning the deceased was found unconscious lying down on the stairs. He proved his

signature on the F.I.R.

Thus, after going through the evidences, I find that the prosecution has been able to establish the fact that there was some altercation between

the deceased and the accused on 31.12.91. Thereafter, they had compromised the matter and after taking food stayed in the said room and in the

morning the deceased was found unconscious lying down on the stairs and the Appellant, who was not seen at there. All the witnesses have stated

that since accused was not present in the room where he was sleeping in the night, the only conclusion that everybody made is that it is the

Appellant, who after giving a fatal blow on the head of the deceased ran away to some unknown place. The accused was examined u/s 313 Code

of Criminal Procedure. In his examination, when question was put that he was residing with the deceased in the same room he said that he never

resided with him in the same room although he was also earning by tuition. He wanted to say that he was residing in another room. He also stated

that there was no fight with him, but admitted that with regard to spelling of chair there was some verbal altercation with him which was intervened

and pacified by the neighbour. When he was put another question that the deceased was found in unconscious on the next day, he stated that he

does not know the said deceased as he left the room for Jharia at 7 a.m. in the morning and he never returned back and went to Jamshedpur. It

appears that the accused has not given verbal statement rather he had tried to evade the questions. He admitted that there was a fight between him

and the deceased, but he refused that he was residing with him in the same room, but all the witnesses included his landlord stated that they were

residing in the same room and after taking food they had slept in the same room in the night before the occurrence. According to P.W.2 landlord

he found the deceased unconscious lying down on the stairs unconscious on the stair on 1st January, 1992 at 7 a.m. and the accused left the place

at 7 a.m. and never came. This shows that the accused was speaking untruth in his statement in Court.

In that view of the matter and taking into view of all the witnesses, the court has rightly found the accused guilty u/s 304 Part (II), so half of the

prosecution case has been proved as far as admitted by the Appellant that there was a fight with him just in the previous night with regard to

spelling and the Appellant without rhyme and reason left the place just half an hour before, which shows the Appellant was of guilty mind and ran

away from the place of occurrence and has rightly been found guilty u/s 304 of the Indian Penal Code. The Court has found the Appellant guilty u/s

304 of the Indian Penal Code, but it appears that in absence of any direct evidence and considering the fact that fight was only for a small matter,

the conviction u/s 304 is altered to one u/s 304 Part-II of the Indian Penal Code and the sentence of the Appellant is reduced to the period already

undergone by him i.e. 2 years and with a fine of Rs. 1,000/- and non payment of fine will further undergo 1 year.

With the aforesaid alteration this appeal is dismissed.

The Appellant is on bail, he is released from the liability of his bail bond.