Criminal Appeal (SJ) No. 210 of 1999 ~~~~~~ Against the judgment of conviction and order of sentence dated 27.07.1999 respectively passed by Shri Baikunth Nath Shahi, learned Additional Sessions Judge – 3rd, Begusarai in Sessions Trial No. 79 of 1995. ~~~~~~ Suresh Yadav, Son of Late Bahor Yadav, Resident of village – Bhawanadpur, P. S. – Birpur (Barauni), District – Begusarai. .... .... Appellant. Versus The State Of Bihar .... .... Respondent. ~~~~~~ Appearance: For the Appellant : Mr. Abul Kalam, Advocate. For the Respondent : Mr. Suresh Prasad Singh, A.P.P. ~~~~~~ P R E S E N T THE HON’BLE MR. JUSTICE GOPAL PRASAD GOPAL PRASAD, J. Heard learned counsel for the appellant and learned counsel for the State. 2. The appellant has been convicted under Section 304 part - II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years. 3. The prosecution case, as alleged, is that on 03.08.1994 Bahore Yadav, Suresh Yadav, Sobhi Yadav, Sagar Yadav, and Sumesh Yadav started digging foundation for the purpose of construction of wall by encroaching the land of the informant. The informant protested. The said protest led to verbal altercation and during the altercation one Suresh Yadav the appellant gave a spade blow on the person of Ram Chandra Yadav by which he fell down and became unconscious and succumbed to injury. 4. On the fardbeyan, the First Information Report was lodge, after investigation charge-sheet was submitted, cognizance was taken. However, during the trial 11 2 witnesses were examined. However, the trial court took into consideration the fact that six witnesses who are material eye-witnesses supported the prosecution case and though they are family members, their evidence are worthy of confidence and there is nothing in the evidence to discard or disbelieve. The trial court taking into consideration the fact that the occurrence took place on the spur of the moment convicted the appellant Suresh Yadav for the offence under Section 304 part - II of the Indian Penal Code holding that Section 302 of the Indian Penal Code is not made out. 5. Learned counsel for the appellant, however, contended that the occurrence took place with regard to the digging of land for raising the wall and there is evidence that there is verbal altercation and the occurrence took place on protest on the spur of the moment and there is allegation of assault by spade. The doctor has found only one injury and the occurrence took place on the spur of the moment in the hit of passion and hence has not challenged the order of conviction recorded under Section 304 part - II of the Indian Penal Code. However, contended that the occurrence is of the year 1994 and the charge-sheet also submitted in the year 1994 and since then the appellant is facing the criminal prosecution and suffering from physical and mental agony and has remained in jail for about two years and three months from 11.08.1994 till 05.10.1996 and further after conviction on 27.07.1999 till the release on bail by this court by order dated 20.08.1999 and hence a lenient view may be taken. 3 6. However, the appellant was aged about 35 years on the date of judgment in the year 1999, however, the occurrence is of the year 1994 and 17 years have elapsed and no useful purpose will be served by sending the appellant to jail and hence the ends of justice shall meet by sentencing the appellant for the period already undergone and hence the appeal is dismissed with modification in sentence. (Gopal Prasad, J.) Patna High Court, Patna. Dated, 25th October, 2011. N.A.F.R./Kundan.