Rajasthan High Court - Jodhpur
Shrawan Singh & Anr vs State on 7 February, 2018
Author: Virendra Kumar Mathur
Bench: Sangeet Lodha, Virendra Kumar Mathur
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Criminal Appeal No. 71 / 2012
1. Shrawan Singh s/o Sh. Harnam Singh,
2. Ram Gopal s/o Sh. Shrawan Singh
both the caste Baori and r/o Chak-01-CDR Dhani Rohi
Kharakheda, Police Station Sangaria, District Hanumangarh
(presently lodged in District Jail, Hanumangarh)
----Appellants
Versus
State of Rajasthan
----Respondent
Connected With
D.B. Criminal Appeal No. 72 / 2012
1. Kartar Singh s/o Sh. Shrawan Singh,
2. Smt Nan Kaur @ Nanko w/o Shrawan Singh
both the caste Baori and r/o Chak-01-CDR Dhani Rohi
Kharakheda, Police Station Sangaria, District Hanumangarh
(presently lodged in District Jail, Hanumangarh)
----Appellants
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr Pradeep Shah
For Respondent(s) : Mr J.P.S. Choudhary, Public Prosecutor
_____________________________________________________
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE DR. JUSTICE VIRENDRA KUMAR MATHUR Judgment Per Justice Virendra Kumar Mathur Date of Pronouncement: (07) /02/2018 Both the appeals are directed against the judgment dated 07.01.2012 passed by Additional Sessions Judge, Sangariya in Sessions Case No.06/2010 (State v. Shrawan Singh & Others) arising out of FIR No.638/2009 of Police Station Sangariya, District Hanumangarh, whereby learned Additional Sessions Judge convicted accused-appellants for offence under sec.302 & in (2 of 18) [CRLA-71/2012, 72/2012] alternative sec.302 read with sec.34 IPC, sections 326/34, 324/34, 325 & in alternative 325/34, 323 & in alternative 323/34 and 447 IPC and sentenced as follows:
Accused Shrawan Singh and Ram Gopal only Sec.302 & in alternative 302/34 IPC: imprisonment for life and fine of Rs.15000/- each, in default of payment of fine- to undergo further rigorous imprisonment for 15 months Accused Shrawan Singh, Ram Gopal, Kartar Singh & Mst Nan Kaur @ Nanko Sec.326 & in alternative 326/34 IPC: 7 years' rigorous imprisonment and fine of Rs.5000/- each, in default of payment of fine- to undergo further rigorous imprisonment for 5 months Sec.325 & in alternative 325/34 IPC: 3 years' rigorous imprisonment and fine of Rs.1000/- each, in default of payment of fine- to undergo further rigorous imprisonment for one months Sec.324 & in alternative 324/34 IPC: 2 years' rigorous imprisonment and fine of Rs.500/- each, in default of payment of fine- to undergo further rigorous imprisonment for 15 days Sec.323 & in alternative 323/34 IPC: 3 months' simple imprisonment each Sec.447 IPC: 3 months' simple imprisonment each Accused Raj Kaur w/o Ram Gopal and Bhajan Kaur w/o Hari Chand D/o Shrawan Singh were given benefit of doubt. In view of common set of facts pertaining to case of appellants in both these appeals and common judgment passed by learned trial judge, both the aforesaid appeals are being disposed of by this common judgment.
Brief facts of the case are that Ram Singh Baori, resident of Chak 5-CDR Rohi Kharakheda, who was admitted in CHC Sangariya, on 01.12.2009 at 10:00PM gave 'parcha-bayan' to ASI Mr Sant Ram, Police Station Sangariya. Upon his 'parcha-bayan', Police registered FIR No.638/2009 for offence under Sections 447, 323, 143 IPC and investigation was assigned to Mr Prithviraj, ASI.
(3 of 18) [CRLA-71/2012, 72/2012] In the 'parcha-bayan' Ex.P6, Ram Singh stated that on that day in the morning at 9:30AM he along with his wife Pammi were irrigating crop of Peas in their field. At that time Shrawan Singh s/o Harnam Singh, Kartar Singh s/o Shrawan Singh, Ram Gopal s/o Shrawan Singh, Nanko w/o Shrawan Singh, daughters of Shrawan- Sukkhi, Bhajan Kaur and Rajji (Raj Kaur) w/o Ram Gopal came to his field and stated that they will not allow him to take water for irrigation. Ram Gopal inflicted injury on his head by Gandasi and others gave lathi blows. His wife was also beaten by lathis and gandasi. When they (Ram Singh and his wife) raised noise then Chandan (Channi) Singh s/o Lal Singh, brother Sukhdeo Singh and father Krishna Singh came to rescue them but Shrawan Singh inflicted injury on the head of Krishan Singh by 'Kirpan' (short sword), Kartar Singh inflicted injury on the head of Krishan Singh by 'Jafti', Ram Gopal inflicted injury by 'Gandasi' on the head of his brother Sukhdeo Singh. All the assailants referred above gave beating to them after intruding into their field. It was also stated that earlier there was quarrel between them regarding boundary of the fields, for which a compromise was arrived at.
On 02.12.2009, Krishan Singh succumbed to injuries and died. Thereupon, offence under sec.302 IPC was also added in the aforesaid FIR No.638/2009 and investigation was made. During investigation, 'panchnama' was prepared, postmortem of deceased Krishan Singh was got done by a Medical Board, blood-stained clothes of deceased were recovered from site of the incident, site plan was prepared and blood-smeared soil was collected. Injury (4 of 18) [CRLA-71/2012, 72/2012] reports of Ram Singh, Smt Pammi, Sukhdeo Singh & Channi Singh and the postmortem reports of deceased Krishan Singh were taken on record and statements of injured persons as well as other persons were recorded.
A cross-case earlier to lodging of FIR No.638/2009 was got registered by one of accused persons of this case against the complainant party, wherein the SHO Police Station, Sangariya registered FIR No.637/2009 and investigated the matter.
After investigation in aforesaid FIRs, charge-sheet was filed by SHO Police Station, Sangariya against six accused persons - Shrawan Singh s/o Harnam Singh, Ram Gopal s/o Shrawan Singh, Kartar Singh s/o Shrawan Singh, Raj Kaur w/o Ram Gopal, Bhajan Kaur w/o Hari Chand D/o Shrawan Singh and Nan Kaur @ Nanko w/o Shrawan Singh for offence under Sections 302, 323, 324, 325, 326, 447, 148, 149 IPC before ACJM Sangariya, who committed the matter to the Session Court for trial.
During trial, PW2 Ram Singh admitted that accused Ram Gopal registered a case, in which he, his wife Pammi, Sukhdeo Singh and Channi Singh were accused and challan has been filed under Sections 447, 323, 341, 324, 148 IPC before ACJM Sangariya, which case is still pending. He has admitted that Sessions Case No.6/10 (State v. Shrawan Singh) and Cross Case No.26/2010 (State v. Ram Singh) were also pending in the same court. Therefore, the trial court proceeded to decide the cross- case also along with this case.
(5 of 18) [CRLA-71/2012, 72/2012] The prosecution examined 18 witnesses and exhibited 83 documents from Ex.P1 to P83 and also Articles 1 to 13. The accused persons were examined under sec.313 CrPC. In defence, the accused persons examined DW1 Dr Balwant Gupta and exhibited documents D1 to D24A.
After conclusion of the trial, the Additional Sessions Judge heard arguments of both sides and passed impugned judgment dated 07.01.2012 whereby appellants were convicted and passed order of sentence as aforesaid. Being aggrieved by the judgment of conviction and order of sentence, the appellants (from cross FIRs) preferred these two appeals on various grounds.
It was contended on behalf of appellants that the trial judge has grossly erred in law and facts in convicting and sentencing the appellants with the aid of sec.34 IPC. It is admitted case that a cross case earlier to lodging of FIR No.638/2009 was registered by one of accused persons of this case against members of the complainant party, on which the Station House Officer, Police Station Sangariya registered FIR No.637/2009 and investigated the matter. After investigation, he submitted charge-sheet Ex.D/12A against members of the complainant party. It is also an admitted case that in the cross case, in the incident shown therein members of both the parties received various injuries. The injuries were received by co-accused persons - Smt Raj Kaur w/o Ram Gopal, Smt Bhajan Kaur w/o Hari Chand, Smt Nan Kaur @ Nanko w/o Shrawan Singh, appellants Ram Gopal s/o Shrawan Singh and Shrawan Singh s/o Harnam Singh, as proved by DW1 Dr Balwant (6 of 18) [CRLA-71/2012, 72/2012] Gupta. Statement of DW1 Dr Balwant Gupta clearly reveals the fact that all the aforementioned persons sustained various grievous as well as simple injuries at the hands of complainant party, by sharp-edged as well as blunt weapons, not only on various parts of body but on vital parts too.
It was also contended that the facts, which have emerged on record, clearly go to show innocence of the appellants and it is apparent that whatever act which is alleged to have been committed by them, was in right to private defence of property as well as body and as such, no criminal liability can be fastened on the appellants. Otherwise also, the place of incident, where both alleged incidents took place, is in possession of appellants and co- accused persons. In this view of the matter, it did not lie in mighty pen of the trial court to have recorded finding of guilt against the appellants and they deserve honourable acquittal.
It was further contended that even otherwise also, present appellants have been implicated and sentenced with the aid of sec.34 IPC. There is no iota of evidence on record to substantiate the fact that the appellants along with other co-accused persons committed any crime, with a common intention to cause murder or to cause injuries to members of the complainant party. On the contrary, record available on the file clearly establishes that the incident had taken place in the property possessed by appellants and other co-accused persons, the members of complainant party made attempt to take forcible possession of the land and to dispossess the appellants and other co-accused persons and in (7 of 18) [CRLA-71/2012, 72/2012] that process, they cause injuries to appellants and other co- accused persons, on their vital parts also. This derived the appellants to protect their property and body, whereby they caused alleged injuries to members of the complainant party.
Learned Public Prosecutor vehemently opposed the contentions raised by appellants and contended that the prosecution was successful in establishing that the place of occurrence- Chak 1-CDR Rohi Kharakheda was possessed by complainants. In that field, accused-appellants trespassed with intention to cause murder and grievous injuries. PW15 Dr Naresh Garg prepared injury reports. After perusing the postmortem report and x-ray report of Krishan Singh (deceased), Doctor has given opinion that the injuries were inflicted by sharp-edged weapon on vital parts, which were sufficient in the ordinary course of nature to cause death. Other injured persons were also examined by Doctor Naresh Garg and their injury reports were prepared, which also shows severe injuries suffered by other injured persons Ram Singh, Sukhdeo and Channi Singh.
PW17 Mehmood Khan was Investigation Officer, who inspected and prepared site-plan, panchnama of dead-body of Krishan Singh, took samples of blood-smeared soil and also recovered blood-stained sword on the information of accused Shrawan Singh, blood-stained lathis on the information of co- accused Smt Nan Kaur @ Nanko, Smt Bhajan Kaur and Smt Raj Kaur, blood-stained 'Gandasi' on the information of Ram Gopal and blood-stained 'Jafti' on the information by Kartar Singh. The seized (8 of 18) [CRLA-71/2012, 72/2012] and recovered articles were sent to FSL for analysis. According to FSL report, human blood of Krishan Singh (deceased) was found on the recovered articles. From the FSL report, use of weapons was also confirmed in commission of the crime.
From the medical evidence and investigation, involvement of accused persons in commission of the crime was confirmed. The complainant party did not inflict any injury on accused persons. The accused persons falsely registered a cross-case for their defence. The defence evidence can not be believed.
Heard learned counsel for the parties and perused entire evidence on the record.
The prosecution has produced eye-witnesses PW2 Ram Singh, PW3 Smt Pammi, PW4 Sukhdeo Singh and PW6 Channi Singh. These witnesses were injured in the incident. All these witnesses stated that the accused party came to their field and stated that they will not allow Ram Singh and Pammi to take water for their Peas (eVj) crop. Accused Shrawan was having a sword in his hand, accused Ram Gopal was having 'Gandasi', accused Kartar Singh was having a 'Jafti" and ladies Smt Nan Kaur @ Nanko, Smt Bhajan Kaur and Smt Raj Kaur were having lathis in their hands. PW2 Ram Singh stated in his evidence that Ram Gopal inflicted injuries by 'gandasi' and thereafter each one was also inflicted injuries on Smt Pammi. He also stated that Krishan Singh, Sukhdeo and Channi Singh came to their rescue but the accused party also inflicted injuries on Krishan Singh, Sukhdeo and Channi Singh. Further, Kartar Singh was stated to have (9 of 18) [CRLA-71/2012, 72/2012] inflicted injuries by 'Jafti' on Krishan Singh and other injured persons. 'Jafti' was recovered from Kartar Singh during the investigation and sent for FSL examination but the FSL report Ex.P83 shows that human blood could not be detected on 'Jafti'. As per Investigation Officer, 'Jafti' is a wooden tool having sharp forks but there was no punctured wound on body of the deceased as well as other injured persons. Similarly, lathis were recovered from Smt Raj Kaur and Smt Bhajan Kaur but no human blood was detected on the lathis in FSL examination. The witness Ram Singh, who has given 'parcha bayan', has also given detail as to which accused was possessing which of weapons.
PW15 Dr Naresh Garg examined injured Ram Singh and injuries No.1 to 3 on head of Ram Singh were shown to be caused by sharp-edged weapon and injury No.4 by blunt weapon. Injuries No.1 to 3 have been stated to be simple in nature while injury No.4 was shown to be grievous with blunt weapon. Similarly, injury report Ex.P42 of Sukhdeo shows that injuries No.1 to 3 were caused by sharp edged weapon, out of which two injuries were on his head. After x-ray, injury No.3 of Sukhdeo Singh was found to be an incised wound, which was on his left-hand finger and injury No.5, which was on right hand middle finger was shown to be caused by blunt weapon. Other injuries were stated to be simple in nature.
Similarly, in the injury report Ex.P47 three injuries were shown to be caused to Channi Singh, out of which injury No.1 was cut wound and all the injuries were shown to be simple. Injury (10 of 18) [CRLA-71/2012, 72/2012] report of Mst Pammi (Ex.P52) shows two injuries, in which injury on left hand small finger was shown to be grievous in nature, caused by blunt weapon while other injury was shown to be simple in nature.
In view of type of injuries received by these eye-witnesses viz. Ram Singh, Mst Pammi, Sukhdeo Singh and Channi Singh as also on the head of deceased Krishan Singh, it is possible that all these persons, in exercise of their right to private defence, might have inflicted injuries to accused persons also.
The accused-appellants in defence have come forward with a story that in Chak No.1-CDR Kila No.2 Ram Singh and others came and gave beating to Shrawan Singh and his family members. This can not be believed. Shrawan Singh, Ram Gopal, Kartar Singh, Smt Bhajan Kaur, Smt Nan Kaur @ Nanko and Smt Raj Kaur @ Rajji received injuries, which are all simple in nature and it can not be over-ruled that said injuries can be self-inflicted.
From the evidence produced by the prosecution relating to eye-witnesses, medical evidence and evidence of recovery, it is well proved that accused Shrawan Singh and Ram Gopal were in possession of sharp-edged weapons. Gandasi was recovered from Ram Gopal and sword was recovered from Shrawan. Human blood was found on the sword but blood group of deceased can not be detected on it. On the Kameej, Chaddar, Kaccha, blood-smeared soil and lathi recovered at the instance of Smt Nanko, human blood was found. As per FSL report, on blood-stained Chaddar & kaccha of deceased Krishan Singh and blood-smeared soil, human (11 of 18) [CRLA-71/2012, 72/2012] blood of Group-B was found. On the 'gandasi' recovered from Ram Gopal also human blood of Group-B was found. Ram Gopal did inflict injury by Gandasi upon Krishan Singh (deceased) and his B- group blood was detected on the Gandasi, which is confirmed in the FSL report.
From the prosecution evidence, accused Ram Gopal and Shrawan Singh were found to be in possession of sharp-edged weapons Gandasi & sword respectively and these two weapons were used for causing injuries to (deceased) Krishan Singh, Ram Singh, Smt Pammi, Sukhdeo Singh and Channi Singh. From the evidence, it is apparent that accused Ram Gopal and Shrawan Singh had knowledge that the injuries caused by them may be fatal but had no such intention to cause murder of Krishan Singh.
Where sharp edged weapons were being used then intention to cause grievous injuries can be found with the persons who are possessing sharp edged weapons. During occurrence of the incident, Kartar Singh was found possessing 'Jafti' and Smt Nanko was possessing lathi. Smt Bhajan Kaur and Smt Raj Kaur also caused injuries on deceased, however, it was found that they did not come to join unlawful assembly with accused Shrawan Singh, Ram Gopal, Kartar Singh & Smt Nanko but they obviously tend to reach at the site as they were having 'dhani' quite adjoining to the place of occurrence.
On behalf of appellants, plea of right of private defence was also raised. After over all consideration of evidence of PW2 Ram Singh, PW3 Smt Pammi, PW4 Sukhdeo Singh, PW6 Channi Singh, (12 of 18) [CRLA-71/2012, 72/2012] other eye-witnesses PW9 Gurnam Kaur, PW10 Krishna, evidence of Investigating Officer regarding recovery, recovery of Gandasi, sword, Jafti & lathi at the instance of Ram Gopal, Shrawan, Kartar Singh and Smt Nanko; it is established that accused Ram Gopal, Shrawan Singh, Kartar Singh and Smt Nanko committed criminal trespass in chak 1-CDR Kila No.1 with intention to commit the crime. In defence, the story which was projected by accused- appellants, according to which complainant party entered in the place of accused persons and committed offence as alleged by them in cross-case, can not be believed in the light of prosecution evidence. Accused Ram Gopal, Shrawan Singh, Kartar Singh and Smt Nanko were actual aggressors. Thus, the plea of right to private defence raised by appellants can not be accepted.
An argument was also put forth on behalf of accused- appellants that the offence would be invariably covered under Section 304 Part-II IPC. On behalf of the prosecution, it was argued that the court should proceed to decide pivotal issue of intention with care & caution, as that would decide whether the case falls under sec.302 or sec.304 Part-I or sec.304 Part-II. Intention can be gathered on a consideration of the following amongst other circumstances:
i) nature of the weapon used;
ii) weapon was carried or picked up from the spot;
iii) injury was aimed at any vital part of the body;
iv) amount of force employed in causing injury;
v) whether act was in course of sudden quarrel/or sudden fight;
(13 of 18) [CRLA-71/2012, 72/2012]
vi) whether there was premeditation;
vii) prior enmity, if any;
viii) any grave or sudden provocation;
ix) whether there was head of passion;
x) person inflicting injury, if had taken undue advantage or acted in a cruel or unusual manner;
xi) whether single blow or several blows were inflicted {Pulicheria v. State [(2006) 11 SCC 444]} Reliance was also placed on Bavisetti v. State of A.P.:
(2008) 15 SCC 725, reiterated and followed in Vijay Krishnan v. State: (2012) 1 SCC 592 and argued that where in a murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under sec.304 Part-II IPC. The nature of the offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances, which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstance could be very many, they being (a) whether the act was premeditated; (b) the nature of weapon used; (c) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards use of screw driver, the counsel stated that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death.
(14 of 18) [CRLA-71/2012, 72/2012] Merely because screwdriver was a usual tool used by the accused in his business, it could not be as if its use would be innocuous.
In the present case, whether the offence would be covered under sec.304 Part-II IPC or not?, in light of the judgments referred above, statement of PW15 Dr Naresh Garg was looked into. This witness examined body of deceased Krishan Singh on 01.12.2009 while he was posted at CHC Sangariya as Medical Officer. He found 5 injuries caused by sharp-edged weapon and other 5 injuries caused by blunt weapon on the person of Krishan Singh as follows:
1& dVk gqvk ?kko & 2" X 1" X 1" QzUVy Hkkx ds e/; esaA 2& dVk gqvk ?kko & 2" X 1" X ½" QzUVy Hkkx ds e/; esaA 3& dVk gqvk ?kko & Ms< bap X ½" X ½" QzUVy jhtu ds ijksDlhey Hkkx ijaA 4& dVk gqvk ?kko & lk<s rhu bzp X 1" X 1" iSjkbZVy jhtu ds nka, Hkkx ijA 5& dVk gqvk ?kko & 3" X 1" X 1" nka;h iSjkbZVks vkWDlhihVy jhtu ijaA 6& [kjksap & 3" X lok bzp & cka;k iSjA 7& nks [kjksap & 2" X ¼" izR;sd cka;h Vkax ds fupys Hkkx ijA 8& nks [kjksap & 1" X ¼" izR;sd cka;k ?kqVukA 9& [kjksap & 2" X 2" cka;k da/kkA 10& nka;h vka[k uhyh FkhA Likewise, Dr Naresh Garg conducted postmortem of deceased Krishan Singh on 02.12.2009 as member of Medical Board on the requisition by Police Station, Sangariya, wherein following injuries were recorded:
1& [kjksap & 3" X lok bap cka;k iSjA 2& [kjksap nks & 2" X ¼" izR;sd cka;h VkaxA 3& [kjksap nks & 1" X ¼" izR;sd cka;k ?kqVukA 4& [kjksap & 2" X 2" cka;k da/kkA (15 of 18) [CRLA-71/2012, 72/2012] 5& [kjksap & 1" X ½" nka;h dksguhA 6& flys gq, ?kko 2"x1"x1" e/; QzUVy] 2"x1"1/2" feM QzUVy] 1 1/2"x1/2"x1/2" QzUVy jhtu ij] 3 1/2"x1"x1" nka;k iSjkbVy Hkkx] 3"x1"x1" nkabZ iSjkbVks vkWDlhihVy jhtu ijA cksMZ dh jk; esa e`R;q dk dkj.k dkWek ¼csgks"kh½ dh fLFkfr FkkA tks fd bUVªk fØfu;y jDr L=ko dh otg ls gqvk gS tks fd mij fy[kh pksVksa dh otg ls gS tks fd izd`fr ds lkekU; vuqØe esa e`R;q dkfjr djus ds fy, i;kZIr gksuk crk;kA In his cross-examination Dr Naresh Garg (PW15) stated that Krishan Singh was admitted in the hospital at about 11:45AM on 01.12.2009. At the time of admission in the hospital, his pulse rate was 100 per minute and blood-pressure was 100/70mm. At that time heart, lungs and stomach of Krishan Singh were functioning properly. On the same day, in the evening relative of Krishan Singh was advised to take him to higher center looking to his condition. On same day at about 10:00PM his relative was again advised that the patient may be taken to higher center. On the same day, in the night at about 10:30PM Police was informed about injuries of Krishan Singh. In the cross-examination, Dr Naresh Garg further stated that due to head injury and excess bleeding, the patient had gone in coma. From over all consideration of the prosecution evidence, it may be inferred that if the patient would have been taken to higher center when it was first advised by the Doctor at about 6:00PM for proper treatment then chances of his survival can not be ruled out.
From over-all consideration of prosecution evidence and the attending circumstances, no single injury inflicted by the accused- appellants Ram Gopal and Shrawan Singh was sufficient to cause (16 of 18) [CRLA-71/2012, 72/2012] death. Further, the accused appellants had no intention to cause death or to cause any injury likely to cause death. Thus, argument of the appellants that the offence is covered under sec.304 Part-II IPC deserves merit. In this way, the case against accused-appellants Ram Gopal and Shrawan Singh falls under sec.299, punishable under sec.304 Part II IPC. We derive strength from judgment of the Apex Court in Thankachan v. State:
(2005) 11 SCC 536 in arriving at aforesaid conclusion.
However, it could not be proved beyond reasonable doubts that accused Kartar Singh and Smt Nanko had common intention of causing death of Krishan Singh. Kartar Singh and Smt Nanko along with Ram Gopal and Shrawan Singh inflicted grievous and simple injuries to injured person, is proved. The trial court recorded categorical finding in this respect, as follows:
et:c jkeflag ds rhu /kkjnkj gfFk;kj ls lk/kkj.k pksVsa rFkk cka;h vxzHkqtk esa dqUnvkyk ls xaHkhj pksV dkfjr gqbZ gSA blh izdkj lq[knso flag ds nks pksVsa /kkjnkj gfFk;kj dh crk;h x;h gSa ftlesa ,d pksV ck;sa gkFk dh chp dh maxyh ij /kkjnkj gfFk;kj dh xaHkhj izdkj dh ik;h x;h gS rFkk nk;sa gkFk dh chp okyh maxyh ij dqUnvkys dh xaHkhj pksV crk;h x;h gS] vU; pksV dqUnvkys dh lk/kkj.k jgha gSA blh izdkj pUuh flag ds pksV izfrosnu esa vafdr rhu pksVksa esa ls ,d pksV /kkjnkj gfFk;kj dh o nksa pksVsa dqUn gfFk;kj dh jgh gS ,oa iEeh ds dkfjr nks pksVksa esa ls ck;sa gkFk dh NksVh maxyh ij xaHkhj dqUnvkys dh pksV ,oa vU; pksV lk/kkj.k fpfdRldh; lk{; ls ikbZ xbZA ,slh voLFkk esa jkeflag] pUuh flag] iEeh] lq[ksnoflag dks pksVsa dkfjr djus esa jkexksiky }kjk x.Mklh] Jo.kflag }kjk ryokj ,oa djrkjfalag }kjk tiu ,oa ukudksa }kjk ykBh ls pksVsa igaqpkus dk lkekU; vk'k; jgk gS ,ao jkexksiky] Jo.kflag }kjk /kkjnkj gfFk;kj x.Mklh] ryokj }kjk Hkh xaHkhj ,oa lk/kkj.k pksVsa igaqpk;h x;h gSa ,oa djrkjflag] ukudksa }kjk Hkh dqanvkys ls jkeflag] lq[knsoflag] iEeh dks xaHkhj ,oa lk/kkj.k rFkk pUuhflag dks dqanvkys ls lk/kkj.k pksVsa vfHk;qDr jkexksiky] Jo.kflag ds lkekU; vk"k; ds vxzlj.k esa dkfjr dh x;h gSA d`'.kflag ds pd 1 lh Mh vkj esa fdyk ua- 1 esa vfHk;qDr jkexksiky] Jo.kflag] djrkj flag] ukudksa }kjk vkijkf/kd vfrpkj fd;k tkuk lkfcr gSA** (17 of 18) [CRLA-71/2012, 72/2012] In view of above discussion, we find no substance in Appeal No.72/2012 filed by accused-appellants Kartar Singh and Smt Nan Kaur @ Nanko. No case is made out for interference by this Court in the judgment of conviction. So far as sentence is concerned, it is found that accused-appellants Kartar Singh and Smt Nan Kaur @ Nanko were 18 years and 45 years of age respectively at the time of occurrence and thus, by now they have attained age of 36 years and 60 years respectively. They remained behind the bars during investigation, trial and after conviction by the court below. Accused-appellant Kartar Singh remained in imprisonment for around 02 years 04 months and the accused-appellant Nanko remained behind bars for around 7 months. Presently, both are on bail and during period of bail they have maintained good behaviour and have not reported to have indulged in commission of any other criminal offence. Thus, taking into consideration the nature of offence and totality of facts and circumstances of the case including their age, we consider it appropriate that their sentence may be reduced to the period of imprisonment already undergone. Accordingly, the appeal No.72/2012 is partly allowed. Both the accused-appellants are on bail. Their bail bonds are discharged. Consequently, they need not surrender.
So far as accused-appellants Shrawan Singh and Ram Gopal are concerned, their Appeal No.71/2012 is also partly allowed and their conviction under sec.302 IPC is altered to be under sec.304 Part II IPC, for which they are sentenced to undergo imprisonment for 10 years. Their conviction & sentence for remaining offences (18 of 18) [CRLA-71/2012, 72/2012] are maintained. All the sentences so awarded to them shall run concurrently.
As per jail record, accused-appellant Ram Gopal had completed 10 years 01 months & 07 days of imprisonment as on 10.10.2017. He shall be released forthwith, having undergone maximum sentence awarded, if not required in any other case.
The accused-appellant Shrawan Singh had completed 08 years 09 months & 24 days imprisonment as on 30.11.2016. If he has already undergone the imprisonment for 10 years, he shall be released forthwith, if not required in any other case else he will complete remaining period of the sentence.
(VIRENDRA KUMAR MATHUR), J. (SANGEET LODHA), J. mma