Punjab-Haryana High Court
State Of Haryana vs Ram Phal Son Of Om Parkash on 12 May, 2009
Author: K.S. Garewal
Bench: K.S. Garewal
Crl. Appeal No. 402-DBA of 2001. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 402-DBA of 2001.
Date of Decision : 12.5.2009.
State of Haryana
...... Appellant
Versus
1. Ram Phal son of Om Parkash
2. Ram Mehar son of Om Parkash
3. Om Parkash alias Ram Parkash son of Thandi Ram
4. Kishni Devi wife of Om Parkash
All residents of village Narnaund, P.S. Narnaund.
......Respondents
CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr. H.S. Sran, Addl. Advocate General, Haryana,
for the appellant.
Mr. Hemant Bassi, Advocate,
for the respondents.
NAWAB SINGH J.
This is an appeal filed by the State against the
judgment dated October 31st, 2000 passed by learned Additional Sessions Judge, Hisar, whereby, above named respondents were acquitted in case registered against them vide First Information Report No. 294 dated November 19, 1999 under Sections 304-B and 498-A read with Section 34 of Indian Penal Code at Police Station Narnaund.
2. During pendency of the appeal, Om Parkash alias Ram Parkash respondent No. 3 died and accordingly, appeal filed against Om Parkash alias Ram Parkash stands abated.
3. The prosecution case is that on November 18th, 1999 at about 4.35 PM, Saroj (deceased) wife of Ram Phal accused- respondent No.1 was brought to General Hospital, Jind having burn Crl. Appeal No. 402-DBA of 2001. 2 injuries on her person. Dr. Krishan Kumar (PW-13) sent the information (Exhibit P-31) to Station House Officer, Police Station City, Jind. SHO, Jind further sent VT message (Exhibit P-34) to SHO, Police Station Narnaund. On receipt of that, Ram Niwas, Assistant Sub-Inspector (for short 'ASI') (PW-15), Police Station Narnaund reached the hospital. He moved application (Exhibit P-35) to the Medical Officer seeking his opinion whether Saroj was fit to make the statement or not? Medical Officer, vide his endorsement (Exhibit P-
36), opined that Saroj was referred to Post Graduate Institute of Medical Sciences (for short 'PGIMS'), Rohtak. He (ASI) reached PGIMS, Rohtak and moved application (Exhibit P-25) to the Medical Officer, PGIMS, Rohtak to seek his opinion whether Saroj was fit to make the statement or not. The Medical Officer vide his opinion (Exhibit P-26) opined that Saroj was fit to make the statement. Investigator moved another application (Exhibit P-7) to Sh. K.K. Bali, Additional Chief Judicial Magistrate, (for short 'ACJM'), Rohtak, requesting him to record the statement of Saroj on November 19th, 1999 at about 2.20 AM as find mentioned in the note (Exhibit P-8) given by ACJM, Rohtak. Sh. K.K. Bali reached PGIMS, Rohtak at 2.40 AM. He sought the opinion (Exhibit P-10) of Dr. Anil Birla (PW-
10), whereby, Saroj was declared fit to make the statement.
4. The ACJM recorded the statement of Saroj (Exhibit P-12) in question-answer form. Saroj in answers to the questions put to her, stated that she was married with Ram Phal one year ago. She was issueless. Her parents-in-law used to taunt her that she had not brought anything from her parents. On one occasion, she brought Rs.10,000/- but that could not satisfy her parents-in-law. A demand of scooter was also made but the same was not given. When asked regarding the occurrence, Saroj had stated that her parents-in-law and Jeth caught hold of her and her husband poured kerosene on her and set her ablaze.
5. She appended her right thumb impression on her statement. The ACJM further obtained a certificate (Exhibit P-13) from the Medical Officer to the effect that Saroj remained conscious Crl. Appeal No. 402-DBA of 2001. 3 during the period, she made the statement. Certificate (Exhibit P-14) was also given by the ACJM mentioning the sequence of proceedings carried out by him.
6. On the statement (Exhibit P-12) of Saroj, which later on became the dying declaration, case under Sections 307 and 498-A read with Section 34 IPC was registered at Police Station Narnaund, District Hisar vide FIR (Exhibit P-6) against the respondents.
7. Raj Kumar (PW-5) father of Saroj brought her to Holy hospital, Hisar from PGIMS, Rohtak against medical advice. Saroj succumbed to her injuries on December 2nd, 1999 at 7.15 AM. Offence under Section 302 and 304-B IPC were added. Inquest proceedings were conducted at Holy Hospital, Hisar. The dead-body was sent for post-mortem examination to Government Hospital, Hisar. Post-mortem examination was conducted by Dr. Gopal Bhardwaj (PW-8) who observed that there were 70 to 80% burns present all over the body and cause of death was septicemia as a result of extensive burns. Post-mortem report is Exhibit P-20. On completion of the investigation, the accused were arraigned for trial.
8. The accused-respondents were charged under Sections 302 or in the alternative under Section 304-B IPC. They pleaded not guilty and claimed to be tried.
9. Trial ensued. In order to prove its case, prosecution examined Dr. Narinder Mehta (PW-1), Raju Constable (PW-2), Sher Singh Head Constable (PW-3), K.K. Bali, ACJM, Rohtak (PW-4), Raj Kumar (PW-5), Smt. Ram Bhateri (PW-6), Balwan (PW-7), Dr. Gopal Bhardwaj (PW-8), Dr. Umesh Gupta (PW-
9), Dr. Anil Birla (PW-10), Dr. Satish Sulekh (PW-11), Sukhdev Singh (PW-12), Dr. Krishan Kumar (PW-13), Dharambir (PW-14) and Ram Niwas, ASI (PW-15).
10. The accused-respondents were examined under Section 313 of Code of Criminal Procedure, to explain the incriminating circumstances appearing in the prosecution evidence. They pleaded innocence. It was stated by Ram Phal husband of the Crl. Appeal No. 402-DBA of 2001. 4 deceased that she was leading a happy married life with him. She got burnt in accidental fire while working on stove as the stove burst. She was taken to General Hospital, Jind. She made a tutored statement before the Magistrate. Ram Parkash, Kishni Devi and Ram Mehar also took the same stand.
11. The accused did not lead any evidence in defence.
12. Learned trial Judge disbelieved the dying declaration (Exhibit P-12) on the grounds (i) that the same was tutored one; (ii) that Dr. Krishan Kumar (PW-13) while preparing the case history of the patient, mentioned in Exhibit P-30 that per patient herself, she received alleged burns in accidental fire on account of burst of stove; (iii) that Saroj was admitted in PGIMS, Rohtak on November 18th, 1989. In short stay file (medical record) (Exhibit P-22) prepared by Dr. Sushil Mangla, it was mentioned that she received burn injuries in accidental fire due to burst of stove as informed by the patient and also mentioned in opinion (Exhibit P-24) given by Dr. Umesh Gupta (PW-9) that she received burn injuries in accidental fire due to burst of stove as told to him by the patient and; (iv) that parents of the deceased did not support the prosecution case. On these premises, learned trial Judge acquitted the accused.
13. Learned Additional Advocate General, Haryana representing the appellant-state has urged that the learned trial Judge fell in error in acquitting the accused as the prosecution has proved its case to the hilt by examining Sh. K.K. Bali, ACJM (PW-4) who recorded the dying declaration (Exhibit P-12). In the said dying declaration, the deceased has blamed the accused for causing her murder. It was also contended that since the dying declaration was recorded by the ACJM so, no importance can be given to the fact that in the medical record (Exhibits P-22, P-24 and P-30), it was mentioned that deceased received burn injuries in accidental fire due to burst of stove.
14. Contra, learned counsel for the accused-
respondents supported the judgment of the Additional Sessions Judge. In support thereof, he submitted that Dr. Krishan Kumar (PW-
Crl. Appeal No. 402-DBA of 2001. 513) has deposed that Saroj informed him that she got the burn injuries in accidental fire due to burst of stove and so was the statement of Dr. Umesh Gupta (PW-9) and the said was the earliest version and amounts to dying declaration and as such, no reliance should be placed on the dying declaration (Exhibit P-12) recorded by the ACJM which was nothing but an afterthought. In support of the points convassed, reliance has been placed on (i) Smt. Kamla vs. State of Punjab 1993(1) RCR (Crl.) 643; (ii) Heikrujam Chaoba Singh vs. State of Manipur 1999(4) RCR (Crl.) 581; (iii) Paparambaka Rosamma vs. State of Andhra Pradesh 1999(4) RCR (Crl.) 104 and;
(iv) Nallapati Sivaiah vs. Sub-Divisional Officer 2007(4) RCR (Crl.)
439.
15. The only evidence relied upon by the prosecution is the dying declaration (Exhibit P-12) made by the deceased to the Judicial Magistrate. Therefore, the short question that arises is whether the dying declaration without corroboration can be acted upon by the Courts of law for conviction or not?
16. Section 32 (1) of the Indian Evidence Act lays down as follows:-
"Statements, written or verbal, of relevant facts, made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death.
When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Crl. Appeal No. 402-DBA of 2001. 6Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question."
17. A reading of the above section would bring it home that in order to constitute a dying declaration, it is not necessary that the man must die immediately or he must be under the contemplation of death at the time of making the statement.
18. The Hon'ble Apex Court has observed in Padmaben Shamalbhai Patel v. State of Gujarat, 1991 (1) RCR 487 that "a dying declaration is admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable. While it is in the nature of an exception to the general rule forbidding hearsay evidence, it is admitted on the premise that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime. It is this premise which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration, it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the Court, on strict scrutiny, finds it to be reliable, there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of evidence like any other piece of evidence- neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable."
19. In another judgment Paniben v. State of Gujarat, Crl. Appeal No. 402-DBA of 2001. 7 1992 (3) RCR (Crl.) 552, the Hon'ble Supreme Court of India summed up the principles of dying declaration with the following observations:-
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Courts also insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of deceased was not a result of either tutoring, prompting or a produce of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
20. In P.V. Radhakrishna vs. State of Karnataka (2003) 6 SCC 443, Hon'ble Supreme Court considered the doctrine of dying declaration indicated in legal maxim nemo moriturus praesumitur mentire (a man will not meet his Maker with a lie in his mouth) and held as under:-
"Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also Crl. Appeal No. 402-DBA of 2001. 8 insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the Court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence."
21. Testing the case in hand on the touchstone of the principles laid down in the decisions noted above, the position that emerges is that the dying declaration can be relied on notwithstanding that parents of the deceased did not support the prosecution case. A person, who is on the verge of death shall seldom tell a lie. It is for this reason that the courts of law attach great importance to the last words of a person called a 'dying declaration' in legal parlance. When such dying declaration relates to the cause of death of the person making it shall be such a piece of evidence as would not require any corroboration if the dying declaration is free from blemish. In other words, when a dying declaration is unassailable and is not fraught with any flaw, it will be sufficient evidence by itself to sustain conviction of the accused named in the dying declaration as the killer by the deceased.
22. Let it now be seen, if there is any blemish in the dying declaration or any doubtful circumstance surrounding it?
23. Sh. K.K. Bali, ACJM, Rohtak (PW-4) had recorded the dying declaration (Exhibit P-12) on November 19th, 1999 at 2.40 Crl. Appeal No. 402-DBA of 2001. 9 AM, that is, intervening night of November 18/19th, 1999. He sought the opinion of the Medical Officer Dr. Anil Birla (PW-10) (Exhibit P-
10) to ascertain the condition of Saroj as to whether she was fit to make the statement or not. Dr. Anil Birla vide his endorsement/opinion (Exhibit P-10) opined that Saroj was fit to make the statement. Thereafter, Sh. K.K. Bali recorded the statement (Exhibit P-12). Sh. K.K. Bali has also stated that he recorded the statement of Saroj (Exhibit P-12) in question-answer form and after recording the same, understanding the contents of the statement as correct, she appended her right thumb impression on it. He has also proved the certificate (Exhibit P-14) in this connection.
24. It was stated by the deceased in clear and un- ambiguous manner that she was caught hold by Om Parkash alias Ram Parkash, Kishni Devi and Ram Mehar, father-in-law, mother-in- law and brother-in-law respectively and Ram Phal her husband poured kerosene upon her and set her ablaze and a demand of dowry was made by the accused from her.
25. In view of this, dying declaration does not leave anything vague. It is free from blemish. The act of ACJM cannot be suspected when he records the dying declaration as a part of the judicial function, which carries great sanctity. In this regard, reference may be profitably made to the judgment of a Division Bench of this Court Sital Kaur vs. State of Punjab 2005(2) RCR (Crl.) 1 (which was authored by one of us, Hon'ble Mr. Justice K.S. Garewal). Therein, it was observed that statements recorded by Magistrates of persons in the throes of death must never be lightly brushed aside on the specious ground that the prosecution had failed to examine the Medical Officer to prove his certification. Magistrates are responsible Judicial Officers, who are well trained and disciplined members of the judicial service. There should never be any doubt as regards the Magistrate's integrity in such matters. The Magistrate is completely independent and totally unbiased when he records statements of dying persons. No Magistrate would have any personal reason to prepare a false record.
Crl. Appeal No. 402-DBA of 2001. 1026. One of the principles formulated by Hon'ble Supreme Court in Khushal Rao vs. State of Bombay AIR 1958 SC 22 was that where a dying declaration is recorded by a competent Magistrate, it would stand on a "much higher footing". A competent Magistrate has no axe to grind against the person named in the dying declaration of the victim and in absence of circumstances showing anything to the contrary, he should not be dis-believed by the Court.
27. In Ravi Chander vs. State of Punjab (1998) 9 SCC 303, dying declaration of the bride was recorded by the Executive Magistrate. Prior thereto, first dying declaration was recorded by the Investigating Officer, whereby, death was stated to be accidental. The veracity of the dying declaration recorded by the Executive Magistrate was questioned by the accused. Taking into consideration both the dying declarations, Hon'ble Supreme Court held that though the dying declaration recorded by the Executive Magistrate was sent to the Investigating Officer after a fortnight, the genuineness of the dying declaration could not be doubted. The second dying declaration before the Executive Magistrate was held to be reliable. It was further observed that in absence of any circumstance or material on record to establish that the Executive Magistrate had any animus against the person or was in any way interested in fabricating the dying declaration, it ought to be accepted. The conviction was accordingly upheld.
28. Harjit Kaur vs. State of Punjab (1999) 6 SCC 545 was another case of bride burning. There dying declaration was recorded by the Sub-Divisional Magistrate, the genuineness of which was challenged inter alia on the ground that there was an agitation by the relatives of the deceased and the declaration was recorded by the Sub-Divisional Magistrate under pressure. The Court however, held that the Sub-Divisional Magistrate being independent witness holding high position, had no reason to do anything which was not proper. It was, therefore, held that genuineness of dying declaration could not be doubted and conviction recorded on that basis could not be faulted.
Crl. Appeal No. 402-DBA of 2001. 1129. Since the dying declaration recorded by ACJM was free from blemish as observed earlier, the factors which weighed with the learned trial Judge while acquitting the accused-respondents were misplaced. In medico-legal report (Exhibit P-30), it was mentioned that deceased was brought by Satbir Jeth (elder brother of husband of the deceased) who was alleged to have been burnt by accidental burst of stove as told by patient herself. The said observation along with injuries mentioned thereon is in seven lines. After 5th line, there is a gap and signatures of Satbir were appended. It appears that what was recorded by Dr. Krishan Kumar could not be the version of Saroj. Had it been so, the Doctor might not have used the word 'alleged' while recording that patient received burn injuries due to accidental fire on account of burst of stove. Probability is that what was recorded by Dr. Krishan Kumar was at the instance of Satbir who was accompanying Saroj at the time of her examination by Dr. Krishan Kumar. The statement of Dr. Umesh Gupta (PW-9) also cannot be accepted. Dr. Umesh Gupta (PW-9) in his statement has stated that Exhibit P-22, that is, the case history of the patient was prepared by Dr. Sushil Mangla and the same was prepared as was told by the patient. She told that she received the burn injuries due to burst of stove. It was further stated by this Medical Officer that vide Exhibit P-24, he opined that it was a case of alleged history of accidental burns due to burst of stove as told to him by the patient at the time of her admission. Surprisingly, there is no mention of the fact that the deceased had informed both the Medical Officers that she received burn injuries by accidental fire due to stove bursting. On what basis, Dr. Umesh Gupta has given his opinion which is hog- wash. It is difficult to believe that Doctors made their deposition in the Court on the basis of their memory. The doctors are concerned with the description of the injuries etc., the nature thereof and the treatment what they give as history mention cannot be taken as a gospel truth because it is told by someone else. In a similar natured case, Surinder Kumar vs. State of Hayana 1992 Supp (2) SCC 559, Hon'ble Supreme Court accepted the dying declaration recorded by Crl. Appeal No. 402-DBA of 2001. 12 the Magistrate discarding the observation of the Medical Officer that he was informed by the deceased before recording of the dying declaration by the Magistrate that she got the burn injuries while cooking food on gas-stove. This being so, reliance placed on the evidence of Dr. Krishan Kumar (PW-13) and Dr. Umesh Gupta (PW-
9) by learned trial Judge is wholly mis-conceived.
30. So far as the fact of parents of the deceased having not supported the prosecution case is concerned, that could be for reason best known to them. They wanted to oblige the accused as it is commonly seen that in such type cases, endeavour on the part of the accused is always to win over the parents by hook or crook. Nonetheless, it is not significant to mention here legally but it can be taken note of the fact that parents in their statements recorded by the Police had stated that their daughter was subjected to cruelty by the accused in relation to demand of dowry and she had told them that she was set afire by her husband Ram Phal whereas other three accused caught hold of her. So, their having not supported the prosecution case carries no weight in view of the dying declaration made by the deceased.
31. Authorities referred to by learned counsel for the respondents have been perused.
32. In Smt. Kamla 's case (supra), it was held by Hon'ble Supreme Court that dying declaration can form the basis of conviction if it is voluntary, reliable and made in fit mental condition. In that case, there were glaring inconsistencies in the four dying declarations. In such circumstances, the Court disbelieved such dying declarations. No such infirmity has been found in the dying declaration in the present case.
33. In Heikrujam Chaoba Singh's case (supra), deceased made dying declaration before his brother and in the presence of 3-4 persons. The prosecution did not examine those 3-4 uninterested persons to prove the dying declaration. Hence, the dying declaration was not relied upon. Ratio of the case is not applicable to the facts of the instant case inasmuch as in the case in Crl. Appeal No. 402-DBA of 2001. 13 hand, dying declaration was recorded by the Magistrate and at that time, nobody else was present as stated by the Magistrate.
34. Paparambaka Rosamma's case (supra), was overruled by Five Judge-Bench of the Supreme Court in Laxman vs. State of Maharashtra, 2002(4) RCR (Crl.) 149 SC .
35. In Nallalpati Sivaiah's case, there was medical evidence showing that deceased suffered 63 injuries so, he was not in fit state of mind to make the statement. Magistrate without obtaining opinion of doctor as to fitness of victim recorded his statement. In those peculiar circumstances, Hon'ble Supreme Court while explaining the ratio of Constitution Bench in Laxman's case (supra) held that though a Magistrate is competent to certify that injured was fit to make statement yet, if there is medical evidence available on the record in respect of unfitness of the injured then such medical evidence and attending circumstances altogether cannot be ignored merely because dying declaration has been recorded by a Judicial Magistrate. This authority is of no help to the accused-respondents because Dr. Anil Birla (PW-10) vide his endorsement/opinion (Exhibit P-10) opined that Saroj was fit to make the statement and thereafter dying declaration was recorded by the ACJM.
36. The alleged dying declaration before the Doctor which was erroneously relied upon by the trial Court does not stand the test of judicial scrutiny. The bursting of the stove appears to be a cock and bull story. How many households use kerosene stove. Most of the people have either graduated to LPG stoves or are still using their old fashioned hearths, Chuhlas, Angithies etc. One hardly hears of a stove burst unless a bride gets burns. So, in the first instance one wonders as to how many instances of stove bursts take place then in case after case, the persons accused of ghastly and abominable crime of bride burning harps on this hackneyed theme unabashedly. One wonders all the more why only the brides, subjected to cruelty in relation to demands for dowry, become victim of stove bursts in their matrimonial homes. Are the stoves having Crl. Appeal No. 402-DBA of 2001. 14 some kind of partiality or bias so as to target the brides only. Why the mother-in-law and sister-in-law do not sustain burn injuries from accidental stove burns. Where is that stove which had a burst in this case. Was it produced before or pointed out to the Investigating Officer. No satisfactory answer is coming from the defence to these quarries.
37. It is now being argued for the accused-
respondents that the earlier version before the Doctor was true and the dying declaration (Exhibit P-12) is result of tutoring. Who could tutor the deceased except her parents. The parents in this case have toed the line favourable to the accused by resiling from what they had stated before the Police. Who else could tutor the deceased. Defence has no answer to it much less a satisfactory one. It has already been observed that Sh. K.K. Bali, ACJM (PW-4) being responsible Judicial Officer had satisfied himself, at the time of recording dying declaration (Exhibit P-12) that the deceased was in a fit and disposing state of mind. She made the dying declaration voluntarily. If at all, there was probability of some tutor version being introduced, it was when the Doctor received the information that it was a case of accidental stove burst. Saroj (deceased) reached the hospital accompanied by her Jeth Satbir. She had extensive burns to the extent of 70 to 80%. Death was staring in her face. She had no one who could side with her at that time and place. Could she dare to utter any word against her husband or in-laws in that helpless situation. No, certainly not. If at all, information was given to the Doctor which could not be the voluntary declaration by the deceased in the pre-dominant presence of her Jeth Satbir. The other eventuality could be that Jeth Satbir gave the information to the Doctor. In fact, that is a stronger probability in view of the reasons already stated and the circumstances that deceased never thumb marked or signed the alleged dying declaration. The version of accidental stove burst is surrounded by numerous and explained suspicions and belies truth.
38. Above being the position, the entire approach of Crl. Appeal No. 402-DBA of 2001. 15 the learned trial Judge in acquitting the accused was lopsided and rather, contumacious.
39. In upshot, for the reasons recorded supra, the appeal filed by the State against the acquittal of Ram Phal, Kishni Devi and Ram Mehar is accepted. Resultantly, the impugned judgment of acquittal is set-aside and the accused-respondents No.1, 2 and 4 are held guilty of offence under Section 302 IPC and convicted thereunder. Since it does not fall within the category of rarest of rare cases, this Court sentences accused-respondents No.1, 2 and 4 to undergo imprisonment for life and to pay a fine of Rs.10,000/- each. In default of payment of fine, they shall undergo further rigorous imprisonment for one year. They be arrested and sent to Jail to undergo the sentence passed. Trial Judge is directed to comply with this order forthwith under intimation to this Court.
(NAWAB SINGH) (K.S. GAREWAL)
JUDGE JUDGE
12.5.2009.
SN