Rajasthan High Court - Jaipur
State Of Raj. vs Laldeen And Ors. on 29 August, 1997
Equivalent citations: 1997(2)WLN396
JUDGMENT G.L. Gupta, J.
1. These three appeals have been directed against the judgment of the learned Sessions Judge, Jodhpur dated 7.9.79 in Sessions Case No. 61/78 whereby he convicted accused Laldeen, Hazira, Nihaldeen s/o Mahendra Khan, Gafoor and Nihaldeen s/o Hakim Khan under Section 304 Part-II IPC, in the alternative, under Section 304 Part-II read with Section 149 IPC, and sentenced each of them to undergo rigorous imprisonment for 8 years. Accused Gafoor and Nihaldeen s/o Hakim Khan were also convicted under Section 324 IPC and accused Laldeen, Hazira and Nihaldeen s/o Mahendra Khan under Section 324/149 IPC and sentenced to two years R.I.
2. The State of Rajasthan has questioned the acquittal of the accused persons under Section 302 IPC through D.B. Criminal Appeal No. 594/79 Accused Nihaldeen and Gafoor have preferred Appeal No. 455/79 and the other three accused Hazira, Nihaldeen s/o Mahendra Khan and Laldeen have preferred Appeal No. 453/79 challenging their convictions. All the. three appeals arise out of one and the same judgment and, therefore, they have been heard together and they are being disposed of by this common judgment.
3. The prosecution case may be summarised as follows. On 2.0.7.78 at 3.30 Kayamdeen appeared before Dy. Superintendent of Police, Phalodi and informed him that an occurrence had taken place in village Naneu, on which the Dy. S.P. recorded his statement wherein Kayamdeen stated that he, his father Mehardeen and brother Ismail were in their 'Dhani' when they heard the cries of his brother Yaru Khan. On this they rushed towards 'Akhad Khet' where they found accused Laldeen, Hazira, Nihaldeen s/o Mahendra Khan landing axe blows to Yarukhan. Gafoor and Nihaldeen s/o Hakim Khan were also standing there. When they tried to reach near Yarukhan both these accused Gafoor and Nihaldeen inflicted blows to his father and brother Ismail. In this statement it was further stated that the accused persons bodily lifted Yarukhan and took him in the field of Laldeen and he was given beatings there causing his death. This statement was sent to the Police Station where a case under Section 302, 307, 147, 148 and 149 was registered. The police inspected the site, held the inquest, interrogated the witnesses and arrested the accused persons. The autopsy was held by Dr. M.L. Paniya, PW1 on 21.7.78. After the completion of the investigation, the police submitted a challan.
4. The learned Sessions Judge framed charges under Sections 148, 302, 302/149 and 324/149 against accused persons. Accused Nihaldeen s/o Hakim Khan and Gafoor were charged with the offence under Section 324 IPC also. All the five accused pleaded not guilty and claimed trial. The prosecution examined 14 witnesses. Out of them PW2 Ismail, PW 11 Kayamdeen and PW 13 Mehaideen are the eye-witness to the occurrence. Ismail and Mehardeen also sustained injuries in that occurrence. PW 3 Subhan Khan, PW 12 Bachukhan are also eye-witness who happened to be at the place of occurrence for some work. PW 1 Dr. M.L. Paniya had held autopsy on the body of Yarukhan and had prepared the post-mortem report Ex.P-1. PW 4 Hamdeen, PW 5 Kayamdeen s/o Iskhan, PW 6 Sikander and PW 7 Fakrekhan are 'motbirs' who were associated by the police during investigation. PW 8 Badriprasad had registered the case on receiving the statement of Kayamdeen from the Dy. S.P. PW9 Kishanlal and PW 14 Jalam Singh are the Investigating Officers. PW 10 Sultan Singh had taken sealed packets pertaining to this case to the Forensic Science Laboratory, Jaipur. Accused in their statements under Section 313 Cr. P.C. denied accusation. They examined four witnesses in defence. DW 1 Durg Singh has been examined to prove the plea of alibi of accused Nihaldeen s/o Hakim Khan, DW 3 Jamaluddin and DW 4 Mehmood Khan have been examined to support the defence version that the members of the complainant party had attacked them. DW 2 Hart Singh, Sarpanch of the village has deposed to have seen the site just after the occurrence. The learned Sessions Judge heard the arguments of both the parties. He held that Yarukhan had met homicidal death. He further held that the prosecution has not been able to establish the charge under Sections 302 or 302/149 IPC. Holding that the act of the accused fell in the third part of Section 299 IPC, he convicted all the five accused person's under Section 304 Pat-II read with Section 149 IPC. The learned Session Judge further found that accused Gafoor and Nihaldeen s/o Hakim Khan had caused hurt by sharp edged weapon to Ismail and Mehardeen. He, therefore, convicted them under Section 324 IPC, and the other three accused under Section 324/149 IPC.
5. We have heard the arguments of learned Counsel for the accused and the learned Public Prosecutor appearing for the State respondent.
6. Mr. Khan urged that the trial Court has erred in relying on the testimony of PW 2 Ismail, PW 11 Kayamdeen, PW 13 Mehardeen who being the members of the same family are highly interested in the case. He assailed the testimony of Subhan Khan (PW 3) and Bachoo Khan (PW 12) on the ground that they are related to the complainant party and they had no business to be present at the spot on that day. Mr. Khan pointed out that the prosecution has not explained the injuries of the accused and, therefore, it should be presumed that the prosecution has suppressed the genesis of the occurrence. He submitted that the defence plea should be accepted, keeping in view that the FIR was not sent to the Magistrate forthwith, which goes to show that the FIR was ante timed, and that no human blood was found at the place where occurrence is said to have taken place.
7. As against this, the learned Public Prosecutor tried to support the findings of the trial Court. He urged that on the ground of some improvements made by the witnesses their testimony should not be discarded. He pointed out that the injuries suffered by the accused were of very minor nature and they were not even on the exposed portion of the accused and, therefore, the witnesses could not see them and the non-explanation in such circumstances is not fatal to the prosecution.
8. We have given the matter our thoughtful consideration.
9. The main item of evidence is the direct evidence contained in the statements of PW 2 Ismail, PW 11 Kayamdeen, PW 13 Mehardeen, PW 3 Subhan Khan and PW 12 Bachoo Khan. Kayamdeen (PW 11) has deposed that his brother Yaru Khan was grazing cattle in their field known as 'Akhad Khet' when he heard the outcries of his brother, on which he, his father and brother Ismail rushed to the spot, there they saw that all the five accused were beating Yaru Khan by the axes. His father Mehardeen and brother Ismail tried to intervene but accused Nihaldeen s/o Hakim, Gafoor and Nihaldeen s/o Mahendra inflicted axe blows to them. He has stated that Subhan Khan and Bachoo Khan had also reached the spot healing their outcries and they had also tried to intervene in the occurrence but the accused did not stop beating and they took Yaru Khan by bodily lifting to the field of Laldeen and there all the five accused again inflicted axe blows to him. Almost to the same effect are the statements of PW 13 Mehardeen, PW 2 Ismail. According to them also on hearing the outcries of Yaru Khan they had rushed to the 'Akhad Khet' where the accused were beating Yaru Khan and when they inteivened, they were also given beatings.
10. The second set of witnesses consists of Subhan Khan (PW 3) and Bachoo Khan (PW 12). Subhan Khan has deposed that he needed a tractor and, therefore, he had gone to village Naneu to meet Jamal and Bachoo Khan was also with him. When they reached near the "Dhani' of Mehardeen (PW 13) they heard the outcries and they saw that the five accused had encircled Yaru Khan and they were inflicting axe blows to him and when Mehardeen and Ismail went to the rescue of Yaru Khan, they were also given beatings. He has said that he and Bachoo Khan implored the accused not to beat but they did not stop and all the five accused bodily lifted Yaru Kahn and took him in the field of Laldeen which was situated 10- 12 ft. away from the first place of occurrence and there all the accused landed axe blows to Yaru Khan. PW 12 Bachoo Khan has also given almost the same statement.
11. Subhan Khan and Bachoo Khan have admitted in their cross examination that they are related to the deceased. It is also a fact that they belonged to a different village. On the ground that they belong to different village, it cannot be said that they are the change witnesses. It was the season of cultivation and tractor is required by the cultivators. It has not been suggested in their statements that tractors were available in their village. There was nothing unnatural when they went to village Naneu to arrange a tractor. It is significant to point out that the names of both the witnesses were stated in the FIR which was lodged within 3 hours of the occurrence. By that time, there was no occasion for Kayamdeen to contact Subhan Khan and Bachoo Khan and persuade them to become eye witnesses though they had not seen the occurrence. The testimony of the witnesses cannot be seen with suspicion on the ground that they are relatives of the deceased. As a rule of prudence, there testimony shall be scrutinised with caution.
12. The 'Dhani' of Mehardeen and Ismail was situated near the place of occurrence. They had also suffered injuries in the occurrence and their injury reports are Ex. P.3 and P.2 which have been proved by Dr. Mohanlal Paniya (PW 1). There were two injuries on Ismail and five injuries on Mehardeen. Their presence cannot be doubted. Mehardeen and Ismail have deposed that they had sustained injuries in the occurrence. Kayamdeen has also said so. Subhan Khan and Bachoo Khan have also corroborated the testimony of Mehardeen and Ismail. The testimony of Mehardeen and Ismail cannot be lightly brushed aside, though they are the close relations of the deceased. It is relevant to state that the accused in their statements under Section 313, Cr. P.C. have even admitted the presence of these two persons.
13. Our attention was drawn to this fact that the witnesses have made improvements regarding the role of accused Gafoor and Nahaldcen s/o Hakim Khan. In the FIR Ex. P/22 it was stated that in the Akhad Khet', Laldeen, Hazira and Nihaldeen s/o Mahendra Khan had landed blows to Yaru Khan by axes and that two accused Laldeen and Hazira had bodily lifted Yaru Khan to take him to the field of Laldeen. At the same time, it was also stated that accused Gafoor s/o Hakim Khan were present there, and when Mehardeen and Ismail went to the rescue of Yaru Khan, Gafoor and Nihaldeen s/o Hakim Khan inflicted axe blows to them. It was also stated that the accused had taken Yaru Khan to the field of Laldeen where axe blows were caused to him. It is, thus, obvious that in the FIR also the participation of all the five accused was mentioned. It was not stated in the FIR that in the 'Akhad Khet' the two accused Gafoor and Nihaldeen s/o Hakim Khan had given beatings to Yaru Khan. This fact has been stated by the witnesses in their court statements. The witnesses had also not stated this fact in their police statements under Section 161, Cr. P.C. However, the testimony of the witnesses cannot be rejected on the ground of omission of that fact in their police statements. It is not uncommon in our country that the witnesses do make some improvements in the prosecution story but it is no ground to throw the case over board, if ring of truth is found in the main. It is the duty of the Court to endeavor to separate the grain from the chaff, and accept that part of evidence which is found to be truthful and consistent. Only in a situation where the truth and falsehood are inextricably mixed up polluting beyond refinement down to the core, the entire fabric of the narration given by a witness that the Court might be justified in rejecting the evidence in toto. Vide : Bhagwan Tara Patil v. State of Maharashtra (1974) 3 SCC 336. In the instant case, the only improvement which the witnesses have made is, that accused Gafoor and Nihaldeen s/o Hakim Khan had also given beatings to Yaru Khan at 'Akhad Khet; It is significant to point out that the witnesses had disclosed the presence of their two accused in their police statements. It was further stated therein that when Mehardeen and Ismail tried to intervene, they were given beatings by these two accused persons. In these circumstances, it cannot be said that the witnesses have improved the version to such an extent that they have changed the whole story. In our opinion, on the ground of this improvement, the evidence of the witnesses cannot be rejected in toto. The facts of the case of Dhanna v. State of Madhya Pradesh 1997 Cr. L.R. (SC) 98 relied on by Mr. Khan were entirely different. In that case the main eye witness 'N' had not named at all accused 'D' in his statement recorded under Section 161, Cr. P.C. and, therefore, the trial Court had acquitted him. The High Court, however, convicted him. 'D' took appeal to the Supreme Court challening his conviction. The Hon'ble Apex Court held that accused 'D' could not be convicted on the strength of improvements made at the trial. Obviously, that was a case where the main eye witness 'N' had not named the presence of accused 'D' at the place of occurrence and 'N' had made significant improvement in his court statement.
14. Kayamdeen (PW 11) has stated that Nihaldeen s/o Hakim had inflicted axe blow to the left arm of Mehardeen and Gafoor had landed axe blow to his back, and Nihaldeen s/o Mahendra had inflicted axe blow to the left arm of Ismail, whereas the versions of Ismail (PW 2) and Mehardeen (PW 3) is that accused Gafoor had inflicted blow on the arm of Mehardeen and Nihaldeen had given blow on his back. Pointing out this discrepancy, Mr. Khan contended that the witnesses have given false statements and hence their testimony should be rejected in toto. This witness had attributed the back injury of Mehardeen to Nihaldeen s/o Hakim Khan and arm injury to accused Gafoor in the FIR Ex. P/22 and also in his statement under Section 161 Cr. P.C. It seems that he got confused and, therefore, he gave different statement. It is to be noticed that Kayamdeen's statement was recorded some 8 months after the occurrence. In our opinion, this is no ground to reject the entire testimony of the witnesses.
15. Our attention was also drawn to this fact that in the site inspection memo Ex.P/22 the distance between the first place of occurrence and the second place of occurrence was shown 166 'Pawandas'; whereas according to the witnesses the distance was not more than 10 steps. This discrepancy does appear in the prosecution evidence. The site was inspected by Jalam Singh, Dy. S.P. (PW 14). He had noticed blood at the distance of 166 'Pawandas' from the place where the dead body of Yaru Khan was lying. It seems that the witnesses have no idea of distance in 'Pawandas', steps or feet and, therefore, they have given lesser distance in their statements. We do not think it a ground to discard their testimony.
16. The trial Court has considered the evidence of all the five witnesses in detail and we are unable to accept the contention that the testimony of the eye witnesses is not worthy of credence. The trial Court's finding that the accused had given beatings to Yaru Khan, Mehardeen and Ismail in the 'Akhad Khet' and thereafter they bodily lifted Yaru Khan and took him in the field of Laldeen when he was given beatings by all the accused, does not call for interference.
17. Much stress was laid on the point that the prosecution has not explained the injuries of the accused which shows that the prosecution has suppressed the genesis of the occurrence.
18. Dr. Mohanlal Paniya (PW 1) has proved the injury reports Ex.P.4, P.5 and P.6 of the accused persons. He has deposed that he had examined the injuries of Laldeen, Nihaldeen and Hazira and that Laldeen had 4 abrasions; at the right middle finger, right shoulder, right supra scapular legion and right side of neck; Nihaldeen had abrasions on his left thumb, left middle finger and left side of face outside the left eye and Hazira had a lacerated wound on his right parietal region and swelling on his right intra scapular region.
19. The three injury reports indicate that the injuries were examined on 22.7.78 and injuries were two three days old on that day. The eye witnesses were asked in their cross examination that the accused had sustained injuries and that Yaru Khan had inflicted those injuries'. The witnesses denied to have seen any injury to any of the accused. The point for consideration is whether on this ground the prosecution version should be rejected and defence version, that the member of deceased party had attacked the accused first, should be accepted. The learned Sessions Judge was right when he observed that the injuries found on the person of the accused were superficial and of minor nature. Most of the injuries were not on the exposed part of the body. The lacerated wound 2 1/2" x 1/2" x 1/2" of Hazira on his parietal region was not such that there could be profused bleeding. It seems that small quantity of blood came out of the injury which could not be noticed by the witnesses and, therefore, they have deposed that no injury was suffered by I lazira. The other injuries suffered by the accused were superficial abrasions. In our opinion, on the ground that the witnesses have not explained the injuries of the three accused, it cannot be said that the witnesses are lying on most material point and the prosecution has suppressed the genesis and the origin of the occurrence.
20. In the case of Laxmi Singh v. State of Bihar 1976 SC 2263. the Supreme Court has clearly observed that though it is the duty of the prosecution to explain the injuries of the accused yet where the injuries sustained by the accused were superficial and the evidence is clear and cogent, it outways the fact of omission on the part of prosecution to explain the injuries.
21. The fact situation in the case of Mangla and Ors. v. State of Rajasthan 1996 (2) RCD 452 was entirely different. In that case, it was noticed that number of accused had sustained number of injuries. One accused has sustained 4 lacerated wounds and the other two accused had also suffered lacerated wounds. It was further found that the accused were in possession of the disputed agricultural land. If is in these circumstances, this Court held that the non-explanation of the injuries of the accused was fatal to the prosecution case. So also in the cast: of Bhagwat Singh v. State of Rajasthan 1992 Cr. Law Reporter (Raj) 33 the accused had suffered grievous injuries which were not explained by the prosecution.
22. The defence version is that there was 'Bajra' crop in the field of Laldeen and Yaru Khan had put his live stock in his field and as the cattle started destroying his crop, Laldeen, Nihaldeen and Hazira tried to drive out the cattle but Mehardeen, Ismail, and Kayamdeen reached there having lathis in their hands and they stalled inflicting blows to them and, therefore, they, in the exercise of right of private defence, used force. The accused have denied that there was any incident in the 'Akhad Khet' of Mehardeen.
23. The Serologist report Ex.P/36 indicates that human blood was found in the soil of packet No. 4 forwarded to them by the Forensic Science Laboratory, Jaipur. The report of the FSL, Jaipur is Ex.P/33 in which item No. 4 relates to parcel No. 4 forwarded by the police to them for examination. This parcel No. 4 contained the blood taken from the 'Akhad Khet' of Mehardeen, which fact is evident by the site inspection memo Ex. P/15. There is evidence to this effect, that the sample of soil was sealed at the place of occurrence and was taken in sealed condition to the Forensic Science Laboratory by PW 10 Sultan Singh, Constable. It is, thus, obvious that human blood was found is the soil collected from the "Akhad Khet' of Mehardeen. This fact corroborates the direct evidence that first occurrence had taken place in 'Akhad Khet' of Mehardeen. That being so, the defence version that no occurrence took place in 'Akhad Khet' of Mehardcen cannot be believed.
24. The defence version that. Yaru Khan had put some 300 live stock in the field of Laldeen where crop was standing also cannot be believed as no signs of damage to the crop by the live stock was found by the I.O. at the time of site inspection. Had the live stock numbering 300 entered the field of Laldeen, some crop was bound to be destroyed. Jalam Singh (PW 14) has emphatically denied the suggestion that there was evidence of damage to the crop in the field of Laldeen. There is no other evidence on record to hold that crop in the field of accused Laldeen. was destroyed by the cattle. Accused examined Jamaluddin in support of their version. Jamaluddin has admitted , that he did not give any statement before the police. The witness has deposed this fact for the first time one year after the occurrence. The trial Court was justified in discarding his testimony. The same is true for Mehmood Khan (DW4). According to this witness, Ismail and Mehardeen had not sustained any injury by sharp edged weapon and injuries were caused to them by lathis which fact is obviously erroneous as Mehardeen had sustained two incised wounds and Ismail had sustained one incised wound. It is obvious that Mehmood Khan had not seen the occurrence.
25. It was brought to our notice that the FIR reached the Magistrate on 24.7.78 i.e. on the fifth day of the occurrence. On this basis it was contended that the FIR Ex. P/22 is post investigation document. We are unable to accept this contention. It is true that it is the duty of the police to forward the first information report to the Magistrate of the area forthwith. The endorsement appealing on the FIR Ex. P/23 indicates that it was sent on 20th of July, 1978 itself. Badri Prasad who had recorded this FIR has deposed that he had sent the FIR on 20th of July, 1978 to the APP. There are further endorsements on the FIR Ex.P- 23. to this effect that APP Phalodi despatched the FIR on 22nd July, 1978 and that was submitted by the APP before the Magistrate on 24th July, 1978. It is, thus, obvious that the FIR remained in the office of APP from 20th July, 1978 to 24th July, 1978. It appeals that wrong practice was being followed in the police station that the FIR was sent to the APP who in his turn submitted the same to the Magistrate; whereas Section 157 Cr. P.C. mandates that the police itself should forward the FIR to the Magistrate forthwith.
26. The Hon'ble Apex Court in the case of Arjun Marik and Ors. v. State of Bihar 1994 SCC (Cr.) 1551 has emphasized the need of forwarding of the FIR to the Magistrate forthwith. It is useful to quote the observations of their Lordships at para No. 24 which are to the following effect:
Section 157 of the Code of Criminal Procedure mandates that if, from information received or otherwise, an officer in charge of police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to the Magistrate empowered to take congnizance of such offence upon a police report. Section 157, Cr. P.C. thus in other words directs the sending of the report forthwith i.e. without any delay and immediately. Further, Section 159 Cr. P. C. envisages that on receiving such report, the Magistrate may direct an investigation or, if he thinks fit, to proceed at once or depute any other Magistrate subordinate to him to proceed to hold a preliminary enquiry into the case in the manner provided in the Code of Criminal Procedure. The forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest despatch which intention is implicit with the use of the word "forthwith" occurring in Section 157, which means promptly and without any undue delay. The purpose and object is so obvious which is spelt out from the combined reading of Sections 157 and 159 Cr. P.C. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly, to enable the Magistrate concerned to have a watch on the progress of the investigation.
At para No. 25 their Lordships have observed that the FIR should be sent to the Magistrate even if it is Sunday or Holiday on any reason. The following observations deserve to be reproduced:
Though there is no material on record to show as to way delayed report was sent to the Magistrate on 22.7.1985 but the learned Counsel appearing for the respondent-State submitted at the bar that the investigating officer remained busy in the investigation on 20.7.1985 which was Saturday and since 21.7.1985 was Sunday the report was sent on Monday, 22.7.1985. He submitted that in Bihar State even in murder cases FIR is never sent to the residence of a Magistrate on Sundays and Holidays. If that be so, we are afraid such a practice can never be said to be healthy practice which renders the mandatory provision nugatory. If such a practice is prevalent it must be deprecated and it is high time that the authorities concerned should wake up and see that the provisions of Section 157 Cr. P.C. are complied with in letter and spirit.
27. It is obvious that the FIR did not reach the Magistrate in time because of the wrong practice followed in the police station. In such circumstances it cannot be inferred that the FIR Ex. P/22 had been ante timed or ante dated. We have already held that the evidence of the eye witnesses is worthy of credence. As such the late reaching of the FIR does not render the prosecution case doubtful.
28. Now nature of the offence. The trial Court has acquitted accused persons under Section 302 IPC and convicted them under Section 304 Pt. II IPC. Dr. Paniya (PW 1) deposes that Yaru Khan had died because of bleeding and shock caused by the injuries. He, does not say that any injury by itself or all the injuries cumulatively were sufficient in the ordinary course of nature to cause death. He admits that external injury No. 13, which was on the left parietal region, was not sufficient in the ordinary course of nature to cause death. It is to be noticed that but for the injury No. 13 all other injuries were on the leds and arms. In these circumstances, the learned Sessions Judge was perfectly justified in holding that the case did not fall within the first two parts of Section 299 of the Indian Penal Code and as such it is not covered by any of the clauses of Section 300 IPC. The accused had inflicted multiple blows by sharp edged weapons to Yaru Khan causing his death. It will have to be inferred that the accused had the knowledge that by their act they would be causing his death. The offence committed, therefore, is culpable homicide not amounting to murder, punishable under Section 304 Part II IPC as rightly held by the trial court.
29. All the five accused have taken part in the beatings of Yaru Khan. When Ismail and Mehardeen tried to intervene, two accused Gafoor and Nihaldeen s/o Hakim Khan gave beatings to them so that they might not go to the rescue of Yaru Khan. It is, thus, obvious that all the five accused had formed unlawful assembly, the common object of which was to cause injuries to Yaru Khan. All the accused have, therefore, been rightly convicted with the aid of Section 149 IPC.
30. Accused Gafoor and Nihaldeen s/o Hakim Khan have also been convicted under Section 324 IPC for the injuries caused by him to Ismail and Mehardeen. Since the five accused had formed unlawful assembly, accused Laldeen, Hazira and Nihaldeen s/o Mahendra Khan have been rightly convicted under Section 324/149 IPC.
31. In our opinion, the accused ought to have been convicted under Section 148 IPC also for the offence of rioting for which they had been charged. It seems that this point escaped the notice of the learned Sessions Judge. However, it is not possible for us to convict the accused under Section 148 IPC as the leave sought by the State was for the offence under Section 302/149 IPC only and leave was granted for that offence. The. leave was not sought questioning the acquittal of the accused under Section 148 IPC.
32. Consequently, we hold that the learned Sessions Judge has not faulted when he convicted all the five accused under Section 304 Part II read with Section 149 IPC and 324 and 324/149 IPC.
33. Now the quantum of sentence. Mr. Khan contended that the occurrence took place 19 years ago and the accused have already remained in custody for more than a year. He submitted that his clients are ready to pay compensation to the LRs of the deceased and, therefore, the sentence of imprisonment be reduced to the period already undergone by the accused persons. He has cited the cases of : Gurucharan Singh (1992 Cr. L.R. (Raj.) 680 and Rameshwar Lal v. State of Raj. 1988 WLN (UC) 32.
34. In the case of Gurucharan Singh (supra), accused was convicted under Section 304 Pt. II IPC and sentenced to the period already undergone which was about 15 months. In the case of Rameshwar Lal (supra) a sentence of 10 1/2 months was considered sufficient for the same offence.
35. Taking all the facts and circumstances into consideration, particularly the fact that the occurrence had taken place 19 years ago, we deem it proper to reduce the sentence of imprisonment to the period already undergone but impose a fine of Rs. 20,000 on each accused.
36. It has been brought to our notice that accused Gafoor and Laldeen have expired during the pendency of the appeal. Their appeals, therefore, abate.
37. There is no merit in the appeal filed by the State of Rajasthan. It is hereby dismissed.
38. The appeals of Nihaldeen s/o Hakim, Nihaldeen s/o Mahendra and Hazira are partly allowed. While maintaining their conviction we reduce the period of sentence already undergone by them. Each of them is further sentenced to pay a fine of Rs. 20,000, for the offence Under Section 304 Part-II read with Section 149 IPC. In default of payment of fine, the defaulting appellant shall undergo rigorous imprisonment for two and a half years. The amount of fine if realised, shall be paid to the LRs of Yaru Khan as compensation.
39. The accused appellants Nihaldeen s/o Hakim, Nihaldeen s/o Mahendra and Hazira are given four weeks time to deposit the amount in the trial Court. If the amount of fine is not deposited in the aforesaid time limit, the learned Sessions Judge shall take steps for the arrest of defaulting accused to send him/them to prison to undergo the imprisonment.
40, A copy of this judgment be forwarded to the Director General of Police, Rajasthan, Jaipur for his information who in his turn shall issue necessary directions to all the Police Stations of the State for the strict compliance of the provisions of Section 157 Cr. P.C. in the light of the observations made the Apex Court in the case of Arjun Marik and Ors. v. State of Bihar) (supra).