Gaya Prasad vs State of U.P.

T.P. Garg, J.—This appeal by Gaya Prasad son of Janki Sahu resident of Chakeri, Sewan (Bihar), accused is directed against his conviction under Sections 328/379, IPC and sentence to undergo rigorous imprisonment for seven years, and also to pay a fine of Rs. 500/- or in case of default of payment of fine, to further undergo Rigorous Imprisonment for three months and also to undergo Rigorous Imprisonment for one year u/s 379, IPC passed by Addl. District & Sessions Judge, Jhansi vide his judgment dated 15-12-1990.

Brief facts giving rise to the present appeal are as under:-

On 6-1-90, at about 1 p.m. Kaleshwar, complainant was present under the ''Peepal'' tree on platform No. 1 of Jhansi Railway Station. He was eating ''Puries''. The accused approached him and requested him for giving him Puries as he was feeling hungry. Kaleshwar gave him some money to purchase Puries. Thereafter, Kaleshwar boarded the train as he was to go Chhapra. The accused also followed him. After taking a seat in front of the complainant, the accused offered him Biscuits by taking them out of a tin. The accused told him that since he had offered him Puries, therefore, he would give him some biscuits in return and that it would sweeten his mouth. Despite the complainant''s refusal, the accused insisted on his taking at least two such biscuits. After eating biscuits, the complainant started feeling unconsciousness, on which the accused advised him to sleep. The complainant was having a bag containing a Blanket, Dari, Sari, two Pant Pieces etc. besides Rs. 400/- in his pant''s pocket. When he regained consciousness, he found a Homeguard volunteer by his side who had got him admitted in a hospital. He told him that Gaya Prasad, who was with him had done away with his valuables and Rs. 400/-. He was taken to the Railway Station. The accused was arrested on 8-1-90 and all the articles were recovered from his possession. The accused was having a Tin containing some poisonous liquid matter besides 18.19 intoxicant pills. The Investigating Officer took all these articles in his possession and prepared a memo Ext. Ka-2. The accused was arrested. The investigation was completed and he was sent up for trial.

On being charged u/s 328/379/411, IPC the accused pleaded not guilty and claimed trial.

The prosecution examined Kaleshwar Ram, complainant as P.W. 1, Sub-Inspector Fateh Singh Patel of G.R.P. as P.W. 2, and thereafter, closed its evidence. In the statement u/s 313, Cr. P.C., the accused denied the allegations and stated that it was a false case against him. He added that he was a vagabond for the last 25 years and was not concerned with the members of his family. He did not opt to lead any evidence in his defence.

The accused was held guilty u/s 328/379, IPC and convicted thereunder. He was, however, not found guilty u/s 411, IPC and acquitted thereunder. The accused was awarded a sentence for seven years'' Rigorous Imprisonment and also to pay a fine of Rs. 500/- or in default of payment of fine to further undergo rigorous imprisonment for three months u/s 320, IPC and further to undergo rigorous imprisonment for one year u/s 379, IPC vide the judgment and order dated 15-12-1990 passed by the Addl. District & Sessions Judge, Jhansi.

I have heard learned counsel for the parties, and also gone through the record of the case.

Learned defence counsel has not assailed the findings and conviction of the accused recorded by the trial Judge. He has only prayed for reduction of sentence on the plea that the accused is a vagabond and has no connection with his family and further that he is in custody for the last more than a period of five and a half years. He has not argued the appeal on merit. In view of the submissions made by the learned counsel for appellant, the appeal is dismissed so far as the conviction is concerned. However, even on merits, the conviction of accused is well founded. Kalashwar Ram, complainant, corroborated the facts as mentioned in the FIR. Ex. Ka-1 on all material points. His statement was not challenged in cross-examination on any material point. Only two suggestions were put to him in his statement which both he denied. He had denied that he did not consume the biscuits at the instance of the accused or that he had falsely implicated the accused in the case.

The statement of the complainant has been corroborated by Sub-Inspector Fateh Singh Patel P.W. 2, who is the Investigating Officer and even whose statement has not been challenged on any material point in a cross-examination. Thus, from the unrebutted testimony of both the P.Ws., the offence u/s 320, IPC is complete even if no hurt is caused to the complainant. By his act of administering intoxicating biscuits, the accused had every intention not only to cause hurt to Kaleshwar Ram P.W. I, but also to make away with his money and valuable articles in his possession.

The ingredients of offence u/s 329/379, IPC have thus been proved against the accused beyond reasonable doubt. His plea in his statement u/s 313, Cr. P.C. is in the nature of an excuse and has been rightly rejected by the trial Judge. Thus, the conviction of the accused u/s 328/ 379, IPC is maintained even on merits.

As regards sentence, suffice will it be to say, that the accused is in custody for the last more than a period of about five and a half years. In my opinion, the ends of justice will be amply met if the substantive sentence awarded to him is reduced to the period already undergone. Order accordingly.

With the aforesaid modification/reduction in sentence, the appeal is dismissed. The accused is in custody and his release warrants be issued forthwith in case he is not wanted or is not undergoing sentence in some other case.