Gujarat High Court
Dahyabhai Gomabhai Ninama vs State Of on 8 October, 2013
Author: K.S.Jhaveri
Bench: Ks Jhaveri, K.J.Thaker
DAHYABHAI GOMABHAI NINAMA....Appellant(s)V/SSTATE OF GUJARAT....Opponent(s)/Respondent(s) R/CR.A/247/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 247 of 2004 With CRIMINAL APPEAL NO. 1386 of 2004 With CRIMINAL REVISION APPLICATION NO. 220 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ DAHYABHAI GOMABHAI NINAMA....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance IN CR.A. NO. 247 OF 2004 MR PRAVIN GONDALIYA, ADVOCATE for the Appellant(s) No. 1 MR. K.P. RAVAL, LEARNED APP for the Opponent(s)/Respondent(s) No. 1 Appearance IN CR.A. NO. 1386 OF 2004 MR R.D. KINARIWALA, ADVOCATE for the Appellant(s) No. 1 MR K.P. RAVAL, LEARNED APP for the Opponent(s)/Respondent(s) No. 1 Appearance IN CR.RA A. NO. 220 OF 2004 MS. NIDHI JAPEE FOR MR. J.V. JAPEE, ADVOCATE for the Appellant MS. C.M. SHAH, LEARNED APP for the Opponent(s)/Respondent(s) No. 1 =========================================================== CORAM: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER Date : 08/10/2013 COMMON ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE K.J.THAKER)
1. On 10.09.2013, this Court has passed following order:-
1.
Pursuant to the order passed by this Court dated 29.08.2013 directing issuance of Non bailable warrant against original accused no.1 of Criminal Appeal No.1386/2004, the accused has been brought before this Court. On making necessary inquiry, he informed the Court that he is not in a position to afford the legal fees of learned counsel Mr. BM Gupta and requested to grant some reasonable time to hire the services of some other advocate.
2. Considering the request, a period of fifteen days from today is granted to original accused no.1 to appoint an advocate so that the hearing of his appeal could be expedited on the date that may be fixed by the Court.
3. The matter is ordered to be listed on 26.09.2013 on Final Hearing Board, on which date, original accused no.1 of Criminal Appeal No.1386/2004 is directed to remain present before this Court at 1100 hrs.
4. At the oral request of original accused no.1, non bailable warrant issued against him is kept in abeyance till the next date on condition that he will remain present before this Court on next date.
2. Thereafter, on 26.09.2013, this Court has passed following order:-
Criminal Appeal No. 1386 of 2004 was placed before this Court on 29.8.2013. Thereafter, in these matters on 10.9.2013, the following order was passed:
1.
Pursuant to the order passed by this Court dated 29.08.2013 directing issuance of Non-bailable warrant against original accused no.1 of Criminal Appeal No.1386/2004, the accused has been brought before this Court. On making necessary inquiry, he informed the Court that he is not in a position to afford the legal fees of learned counsel Mr. BM Gupta and requested to grant some reasonable time to hire the services of some other advocate.
2. Considering the request, a period of fifteen days from today is granted to original accused no.1 to appoint an advocate so that the hearing of his appeal could be expedited on the date that may be fixed by the Court.
3. The matter is ordered to be listed on 26.09.2013 on Final Hearing Board, on which date, original accused no.1 of Criminal Appeal No.1386/2004 is directed to remain present before this Court at 1100 hrs.
4. At the oral request of original accused no.1, non-bailable warrant issued against him is kept in abeyance till the next date on condition that he will remain present before this Court on next date.
Today, both the accused Somabhai Mangaji Sadat and Dahyabhai Gomabhai Ninama, original accused Nos. 1 and 3 who are appellants, are present before this Court. The incidence is of 2003. The original complainant has filed Criminal Revision Application No. 220 of 2004 against original accused Nos. 2 and 4. With a view to find out a solution, in view of the judgement of the Hon ble Apex Court in the case of ANKUSH SHIVAJI GAIKWAD VS. STATE OF MAHARASHTRA reported in 2013(6) Scale 778, both sides request for time. S.O. to 4.10.2013.
Learned advocate Mr. Kinariwala states that he appears for the appellant in Criminal Appeal No. 1386 of 2004. If he has filed his vakalatnama, his name may be shown and name of learned advocate Mr. Gupta appearing for the appellant may be deleted.
3. Today, when the matters were called out Mr. Gondaliya and Mr. Kinariwala, learned advocates for original accused Nos. 1 and 3 respectively were present. Ms. Nidhi Japee, learned advocate for Mr. J.V. Japee, learned advocate for original complainant stated that in spite of several efforts, the appellant of Criminal Revision Application No. 220 of 2004 did not respond.
4. All these appeals arise out of the common judgment and order dated 09.01.2004 passed by the learned Additional Sessions Judge, Fast Track Court No.2, Himmatnagar, whereby, original accused Nos.1 and 3 have been convicted for the offences punishable u/s. 302 read with section 34 and under section 324 read with section 34 of the Indian Penal Code and accused Nos. 2 and 4 have been acquitted of all the charges levelled against them.
5. Criminal Appeal No. 247 of 2004 and Criminal Appeal No.1386 of 2004 have been preferred by the original accused nos.1 and 3 against the impugned judgment and order, convicting them for the offences punishable u/s.
302 read with section 34 and under section 324 read with section 34 of the Indian Penal Code. For conviction u/s. 302 read with section 34 of the IPC, they have been sentenced to undergo imprisonment for life and fine of Rs.200/- each and in default to pay the fine, the appellants shall undergo simple imprisonment for a further period of one month. For conviction u/s.324 read with section 34 of the IPC, they have been sentenced to undergo rigorous imprisonment for three months and fine of Rs.50/- each and in default to pay the fine, simple imprisonment for a further period of fifteen days.
5.1. Criminal Revision Application No.220 of 2004 has been preferred by the original complainant against the acquittal of original accused nos. 2 and 4 of all the charges levelled against them.
6. Since all these appeals arise out of the impugned judgment and order, they are disposed of by this common judgment.
7. The facts in brief, giving rise to filing of the present appeals are that a complaint was filed by the complainant-Vikramji Somaji Katara, who happens to be the nephew of the deceased. It was alleged in the complaint that, on 19.03.2003, the complainant and his uncle Maheshbhai @ Popatbhai, deceased, had gone to Vijaynagar Taluka Sangh and when they were standing near a pan shop, original accused persons came there and told his uncle that his cousin namely Girishbhai is keeping illicit relation with one Sumitraben, who is the nephew of Bachubhai Dharmajine Somabhai Mangaji Sadat, and asked his uncle to inform his cousin not to keep such illicit relationship with the said Sumitraben.
7.1. It is further alleged that thereafter some altercation took place between them and suddenly original accused No.1 inflicted a dagger blow upon the deceased and thereafter the deceased fell down on the floor. It was also alleged that accused No.3 inflicted knife blow upon the complainant and accused No.2 had also caught the hands of the complainant. When the complainant started shouting, some persons gathered at the place of offence. Thereafter the complainant and his uncle were taken to the hospital, where the doctor declared his uncle dead.
7.2. After completing necessary procedure the accused were arrested and after completion of investigation, charge sheet was filed before the competent Magisterial Court. As it was a sessions triable case, the learned Magistrate committed the same to the Sessions Court, Himmatnagar. The appellants pleaded not guilty and therefore, the charge was framed and the trial was initiated.
7.3. To prove the case against the present appellant, the prosecution had examined following witnesses:-
S. No. Name of the Witness Ex.
No. 1 Dr. Rajeshkumar Varma 15 2 Vikrambhai Somaji Katara 21 3 Gangaben Thavraji Sadat 23 4 Mangji Jatuji Katara 24 5 Shailesh Kamjibhai Kanat 32 6 Kantibhai Nanjibhai Ninama 34 7 Dahyaji Ditaji Hadula 35 8 Ramisaben Rupaji Sadat 37 9 Sumitraben Nanjibhai 38 10 Jayantibhai Vajaji Katara 39 11 Dilipsinh Jadeja 40 7.4. The prosecution had also relied upon several documentary evidences, more particularly the inquest Panchanama at Exh.25, Map of the place of offence atv Exhibit-30, Panchanama of the place of offence at Exhibit-31, Post mortem Note at Exh.17, FSL report and the original complaint at Exhibit-22. The trial Court after considering the evidence on record and after hearing the parties passed the impugned judgment and order as stated hereinabove. Being aggrieved by the same, the present appeals and Revision application have been preferred.
8. Heard learned counsel for the respective parties and considered the documents forming part of the appeals as well as original record summoned from the trial Court. From the testimony of P.W-1-Dr. Rajeshkumar Varma, who has been examined vide Exhibit-15, it is proved that the deceased died a homicidal death.
This witness has categorically stated that death was caused due to cardio respiratory failure on account of hemorrhagic and neurogonic shock. In column No.17 of the post mortem report, the injuries described as under:-
17. CLW 2.5 cm. x 1.5 cm. x 10 cm. over the left mid line over the 4th ICS. Director upward and medile.
(ii) 2 cm. x 1 cm. x 1 cm. over the forehead.
9. Thus from the evidence of the above witness, it is crystal clear that the deceased had died a homicidal death.
10. In this case P.W.2-Vikrambhai Somaji Katara, who is the complainant and injured eye witness has been examined vide Exhibit-21. In his evidence, this witness stated that on the day of incident the complainant and his uncle Maheshbhai @ Popatbhai, had gone to Vijaynagar Taluka Sangh and when they were standing near a pan shop, original accused persons came there and told his uncle that his cousin Girishbhai is keeping illicit relation with one Sumitraben and asked his uncle to inform his nephew not to keep such illicit relationship with the said sumitraben. It is further alleged that thereafter some altercation took place between them and suddenly original accused No.1 inflicted a dagger blow upon his uncle. When he tried to rescue his uncle the original accused No.3 inflicted a knife blow upon him. This witness further stated that original accused Nos. 2 and 4 also assaulted him by kick blow and thereafter all the accused persons fled away from there. The complainant and his uncle were taken to the hospital, where the doctor has declared his uncle dead. Nothing incriminating has been borne out in the cross-examination of this witness to disbelieve his evidence.
11. The other witnesses have also supported the prosecution case. Apart from that, the FSL report also supports the prosecution case.
12. Considering evidence of the the above witnesses more particularly the evidence of P.W.2-Vikrambhai Somaji Katara, who is the injured eye witness, has categorically stated the role played by the appellant Nos. 1 and 3 in the offence in question. Further, the medical evidence including post mortem note, also supports the prosecution case. Considering the above aspects of the matter, there is no doubt in our mind about the guilt of original accused Nos. 1 and 3. However, the short question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellants under Section 302 of the Indian Penal Code should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code as contended by the learned counsel for the appellant-convict. For this purpose, it is useful and pertinent to refer section 299 and Section 300 of the Indian Penal Code, which read as under:-
299.
Culpable homicide:-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
300.
Murder.- Except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.-
If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.-
If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.-
If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
xxx
xxx xxx xxx
304.
Punishment for culpable homicide not amounting to murder: -
Whoever commits culpable homicide not amounting to murder shall be punished with [imprisonment for life],or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, Or With imprisonment of either description for a term which may extent to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
13. The Apex Court in its recent decision in the case Chenda @ Chanda Ram V. State of Chattisgarh, JT 2013 [12] SC 28, in paragraph No.15, the Apex Court made the following observations :-
15.
In Gurmukmh Singh V. State of Haryana [JT 2009 [11] SC 122: 2009 [15] SCC 635] after scanning all the previous decisions where the death was caused by a single blow, this Court indicated though not exhaustively, a few factors to be taken into consideration while awarding the sentence. To quote :
23.
these are some factors which are required to be taken into consideration before awarding sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:-
[a] Motive or previous enmity;
[b] Whether the incident had taken place on the spur of the moment;
[c] The intention/knowledge of the accuse while inflicted the blows or injury;
[d] Whether the death ensure instantaneously or the victim died after several days;
[e] The gravity, dimension and nature of injury;
[f] The age and general health condition of the accused;
[g] Whether the injury was caused without premeditation in a sudden fight;
[h] The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
[I] The criminal background and adverse history of the accused;
[j] Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
[k] Number of other criminal case pending against the accused;
[l] Incident occurred with the family members or close relations;
[m] The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.
14. On consideration of the entire evidence, it is clear that the accused persons had come to inform the deceased about the illicit relationship of his cousin and further to ask the deceased to inform his nephew not to keep such illicit relationship with Sumitraben. There was no preplan or any premeditation on the part of the original accused Nos. 1 and 3 to commit murder of the deceased. On perusal of the complaint, it is crystal clear that incident in question had happened at the spur of the moment. Further, it has come on record that the parties were related to each other. It has also come on record that there was no previous enmity between the deceased and the original accused Nos. 1 and 3. The appellants had inflicted only a single blow upon the deceased. Therefore, the appellants could not be said to have taken any undue advantage or acted in a cruel manner.
15. Considering the parameters laid down by the Apex Court in the case of Chenda @ Chanda Ram(supra) and also considering the facts and circumstances of the case, we are clearly of the view that the conviction of the present appellants cannot be sustained under Section 302 of the Indian Penal Code, but the appropriate Section under which the appellant ought to be convicted is Section 304 Part-I of the Indian Penal Code.]
16. At this stage, learned advocate for the appellants have relied upon the decision of the Apex Court in the case of Ankush Shivaji Gaikwad Vs. State of Maharashtra, reported in 2013 (6) SCALE 778 and requested that this Court to grant same and similar benefit to the accused No.1 and 3 herein. Considering the facts and circumstances of the case more particularly the fact that the parties belong to scheduled caste community, who are residing in interior village of the district, we are inclined to grant the benefit of the provisions of Section 357 of the Code of Criminal Procedure to the accused Nos. 1 and 3 in this case.
17. So far as Criminal Revision Application No.220 of 2004, preferred by the original complainant is concerned, at the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala & Anr, reported in (2006) 6 S.C.C. 39, the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under:-
54.
In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well-settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below.
18. Further, in the case of Chandrappa Vs. State of Karnataka reported in (2007) 4 S.C.C. 415, the Apex Court laid down the following principles;
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as, substantial and compelling reasons , good and sufficient grounds , very strong circumstances , distorted conclusions , glaring mistakes , etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
19.1. Thus, it is a settled principle that while exercising appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
19.2. Even in the case of State of Goa V. Sanjay Thakran & Anr.
reported in (2007) 3 S.C.C. 75, the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under;
16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to re-appreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with.
19.3. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh & Ors reported in 2007 A.I.R. S.C.W. 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP reported in 2007 A.I.R. S.C.W. 5589.
Thus, the powers, which this Court may exercise against an order of acquittal, are well settled.
19.4. In the case of Luna Ram Vs. Bhupat Singh and Ors, reported in (2009) SCC 749, the Apex Court in para 10 and 11 has held as under:-
10.
The High Court has noted that the prosecution version was not clearly believable. Some of the so-called eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the post-mortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition.
Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence.
19.5. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, reported in AIR 2013 SC 321, the Apex Court in para 4 has held as under:-
It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re-appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, (2004) 5 SCC 573] 19.6. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to re-write the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, reported in AIR 1981, SC 1417, wherein it is held as under:-
...This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary (1967) 1 SCR 93:(AIR 1967 SC 1124) that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice.
19.7. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, reported in JT 2013(7) SC 66.
20. Thus, in case the appellate Court agrees with the reasons and the opinion given by the lower Court, then the discussion of evidence is not necessary.
21. We have gone through the judgment and order passed by the trial Court. We have also perused the oral as well as documentary evidence led before the the trial Court and also considered the submissions made by learned advocate for the appellant. It appears from the testimony of P.W.2-Vikrambhai Somaji Katara, who is the complainant and injured eye witness that at the relevant point of time the original accused Nos. 2 and 4 were not armed with any weapon. Further, no overt act is attributed on the part of original accused Nos.2 and 4. The medical evidence in the form of FSL report also not prove the involvement of the original accused Nos. 2 and 4 in the offence in question. Under the circumstances, we are of the opinion that the Trial Court has rightly acquitted the original accused Nos. 2 and 4 of all the charges levelled against them.
22. Learned advocate for the appellant is not in a position to show any evidence to take a contrary view in the matter or that the approach of the Trial Court is vitiated by some manifest illegality or that the decision is perverse or that the Trial Court has ignored the material evidence on record. In above view of the matter, we are of the considered opinion that the Trial Court was completely justified in acquitting the original accused Nos. 2 and 4 of all the charges.
23. In that above view of the matter, we are of the considered opinion that the findings recorded by the Trial Court are absolutely just and proper and in recording the said findings, no illegality or infirmity has been committed by it. We are in complete agreement with the reasonings given by and the findings arrived at by the Trial Court and hence find no reasons to interfere with the same.
24. For the foregoing reasons, following order is passed:-
(i) Criminal Appeal Nos. 247 of 2004 and 1386 of 2004 are partly allowed. The judgment and order of conviction and sentence under challenge is modified and altered from section 302 read with section 34 of the Indian Penal Code to one under Section 304 Part-I of the Indian Penal Code and the appellants are sentenced to undergo rigorous imprisonment for a period of 10 (ten) years. However, looking to the peculiar facts of the case and also considering the decision of the Apex Court in the case of Ankush Shivaji Gaikwad (supra) the appellants are directed to pay an amount of Rs.50,000/-[Rupees fifty thousand only] each towards compensation under Section 357 of the Code of Criminal Procedure to the heirs of the deceased by way of Account Payee Cheque , after due verification, within a period of eight weeks from today. If the appellants pay the aforesaid amount within the stipulated time as fixed by this Court, the period of imprisonment already undergone by them is ordered to be treated as sufficient sentence for conviction under section 304 part I of the IPC and they shall not be required to surrender, if they are not required in connection with any other case;
(ii) Since the appellants are on bail, the bail and bail bonds shall remain in operation only for a period of eight weeks from today. It is made clear that if the appellants fail to deposit the amount of compensation of Rs.50,000/-(Rupees fifty thousand only) each, within the stipulated period, they shall have to undergo remaining period of sentence. If the appellants do not make payment of compensation as aforesaid and also fail to surrender within the above period, the investigating agency shall be at liberty to take necessary action against him in accordance with law. Rest of the part of the impugned judgment and order stands confirmed.
(iii) Insofar as the Criminal Revision Application No.220 of 20004 is concerned, the same is hereby dismissed. The judgment and order of the trial Court under challenge is confirmed. R & P be sent back forthwith.
(K.S.JHAVERI, J.) (K.J.THAKER, J) pawan Page 26 of 26