JUDGMENT
R.S. Garg, J.
1. The appellant, being aggrieved by the judgment, conviction and sentence dated 28.6.1994, passed in Sessions Trial No. 486/1992 by the learned Third Additional Sessions Judge, Jabalpur, convicting the appellant under Section 304, Part II, IPC sentencing him to R.I. for 7 years, has filed the present appeal.
2. Brief facts leading to the prosecution case are that Kasturibai was deserted by her husband and was living with her two children and after some time, the accused Jamuna Prasad also started living with her as her husband. On the night intervening 1st and 2nd April, 1992, the accused was beating the deceased Kasturibai. On hearing cries Munnibai (P.W. 8) and Bhura (P.W.3) came to the spot and saw the incident. Munnibai went and called Imrati (P.W. 2). Because of intervention of these persons, Kasturibai could be saved. At about 5 a.m. some people saw the accused dragging the deceased, after catching hold of her hair. Imrati (P.W. 2) again went to the spot (sic.) the matter and came back, In the morning, when she had gone to the house of Kasturibai, first seeing her, the accusesed did not permit her to enter. Thereafter, the door was tried to be opened. It was bolted from inside. In the presence of the Kotwar Puranlal (P.W.I), the roof tiles were removed, some persons entered into the house, unbolted the door from inside and in the presence of the persons found that the deceased was lying dead on her bed. She had various injuries on her person. The matter was reported by Imrati (P.W. 2) to the police, which was recorded as Ex. P-6. The police, finding that the matter appeared to be of murder, after registering the offence, started investigation, went to the spot, prepared spot map, prepared Panchnama and after completing the entire investigation filed a challan before the Court. The accused denied the allegations. The Trial Court, after hearing the parties came to the conclusion that the prosecution failed to prove the charges under Section 302 IPC but could seccessfully prove that the accused is guilty for having committed the offence under Section 304, Part II, IPC. It awareded seven years’ R.I. Hence this appeal.
3. Mr. Dutt learned Counsel for the appellant contended that the evidence of P.W.2 and P.W.5 is far from being truthful. It is absolutely concocted, unreliable and is not credit-worthy. On the other hand, Mr. Dube submitted that the evidence on record proves that the witnesses are truthful witnesses, have not exaggerated anything and in fact had witnessed the incident. Imrati (P.W. 2) is an eye witness to the incident. She has stated that the accused was dragging the deceased. He was also hitting her with stone. She is supported by Munnibai (P.W. 5).She also found that the accused was beating the deceased and was dragging her S.K. Dixit (P.W.14) as per the post-mortem report (Ex. P-5) found various injuries on the body of the deceased. On the face, hips and forehead, scratches and contusions were found. The whole of the back was found containing scratches and contusions. Both the knees and elbows were also having scratches covered with dry blood. These injuries on the person of the deceased successfully prove that the deceased was dragged on some hard surface and was beaten. Injury No. 5 found on the person of deceased was a lacerated wound, which was 3½” × 1″. The bone under the injury was factured. These facts clearly prove that the accused was dragging the woman and it caused all these injuries. The Trial Court rightly found him guilty under Section 304, Part II, IPC.
4. At this stage, Mr. Dutt submitted that the accused was arrested on 3.4.1992 and was not released on bail and continues to be in jail and as such he has physically undergone three years, six months. This sentence is sufficient. He also submitted that no useful purpose would be served, if the accused is sent back to serve the remaining sentence. According to him, the accused was also entitled to some remission and if the said nemission is also included, the accused must have undergone 4½ years imprisonment. On the other hand, Mr. Dube submitted that looking to the circumstances of the case, the sentence of 7 years. R.I. cannot be said to be excessive.
5. The learned Trial Court in para 26 of the judgment has held that because of the death of the deceased, her two children have become orphans, therefore, seven years sentence would be sufficient. In my opinion the sentence awarded to the appellant is excessive. The accused did not use any lethal weapon, but caused one single injury on the head of the deceased. For such an act, the sentence of seven years is on the high side. The sentence is reduced to five years’ R.I.
6. The appeal is partly allowed, the conviction of the appellant under Section 304, Part II, IPC is maintained but the sentence is reduced to five years’ R.I.
