Sk. Islam @ Sk. Dukhi vs The State of Bihar

I.P. Singh, J.—The sole appellant has been convicted u/s 436 of the Indian Penal Code and was sentenced to undergo R.l. for six months. The prosecution case, in short, is that on 20th February, 1988 at about 8 P.M. the accused persons went to the house of the informant and demanded toddy from the wife of the informant. She refused to supply toddy as toddy was not available in the shop. In the meantime the accused persons entered her courtyard, abused her and uttered that she will have to give toddy to them. It is alleged that on her refusal, accused Sheikh Hira ordered that she should be beaten and thereupon accused Sheikh Dukhi took out a knife from his pocket and said that she should be killed because she did not give toddy to them. In the meantime, the informant also arrived there and protested upon which accused Sheikh Laddu assaulted him with slaps and fists. It has been further alleged that the said Hira took away a box containing cloths and a sum of Rs. 500/- in cash. Thereafter, Sheikh Dukhi @ Sheikh Islam took out a match box from his pocket and set fire to the house of the informant. On hulla P.W. 2 Bhola Yadav and P.W. 3 Jharokhi Paswan and other villagers came there. The informant gave a written information (Ext. 4) at Bahera Police Station on 21.2.1988 at 14.30 hours. On the basis of which formal F.I.R. was registered. After completion of investigation charge sheet was submitted, and accordingly, cognizance was taken and case was committed to the Court of Sessions for trial.

The appellant pleaded not guilty and has stated that he has falsely been implicated in this case due to enmity.

The prosecution, in support of its case, examined altogether 8 witnesses.

P.W. 1 is Pitamber Paswan, he is the informant of this case. P.W. 2 is Bhola Yadav, P.W. 3 is Jharokhi Paswan, P.W. 4 is Janak Paswan, P.W. 5 is Lal Pari Devi, the daughter of the informant, Pitamber Paswan, P.W. 6 is Kamla Prasad, the first I.O.P.W. 7 is Ishteyaque Ahmad, the second I.O. and P.W. 8 is Binod Kumar Jha, a formal witness. He has proved the written information (Ext. 4) at Police Station.

The defence has also examined three defence witnesses. D.W. 1 is Md. Izharul Haque. D.W. 2 is Md. Nazir and D.W. 3 is Yasin Mian.

P.W. 1 is Pitamber Paswan who is the informant of this case has fully supported the case of prosecution as stated in his fardbeyan. He has stated that he was having a toddy shop, which his wife Jhauli Devi also used to sit and manage. His house was also adjacent to the toddy shop. According to him, on that day of occurrence at 8 O''clock in the night there was some commotion near his shop on which he went to his shop and saw Sheikh Islam along with Sheikh Laddu and Hira who came to his shop. He has stated that accused Hira ordered to assault his wife otherwise she would not give toddy. On this Sheikh Islam pulled out his dagger and tried to assault her. He intervened and Sheikh Laddu assaulted him with fists and legs and Hira took away box in which cash was kept. Thereafter accused Islam set his dwelling house on fire with a match-stick. As the house started burning witnesses came and extinguished the fire. He informed the Police and gave his statement.

P.W. 2 is Bhola Yadav. P.S. 3 is Jharokhi Paswan, P.W. 4 is Janak Paswan and P.W. 5 is Lalpari Devi. They all have supported the case of prosecution as stated in the fardbeyan of the informant.

P.W. 6 Kamala Prasad the 1st I.O. and P.W. 7 Ishteyaque Ahmad the Second I.O. have also supported the case of prosecution.

The learned Court below on the appreciation of the evidence and on the fact that the case was compromised between the parties and also considering that the house was a small Plant which burnt in part only, though convicted the appellant u/s 436 of IPC but sentenced him to undergo R.I. for six months only.

Learned counsel for the appellant has submitted that it is an admitted position that house was a small portion of Plani which was burnt and parties have compromised the matter. It has also been submitted that the occurrence is of 1988 i.e., about 20 years ago and appellant is an old man aged about 75 years and has remained in custody for 25 days. As such some lenient view may be taken while awarding the sentence to the appellant.

Considering the submissions and in the facts and circumstances of the case, I am of the view that it would be expedient in the interest of justice that if the sentence of the appellant is reduced to the period he has already undergone in custody. With the aforesaid modification in the sentence this appeal is dismissed.