Rajasthan High Court - Jodhpur
Shyoprakash @ Sukhdev Singh vs State on 22 August, 2013
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
DB Murder Reference No.2/2012
With 2 connected appeals.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:: JUDGMENT::
:::::
1. D.B. Murder Reference No.2/2012
State Vs. Shyoprakash @ Karm Singh @ Sukhdev Singh
2. D.B. Cr. Appeal No.446/2012
Shyoprakash @ Sukhdev Singh Vs. State
3. D.B. Cr. Appeal No.727/2012
Dulla Singh & Nirmal Singh Vs. State
DATE OF ORDER : 22nd August 2013
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
HON'BLE MR. JUSTICE V.K. MATHUR
By post.
Mr. K.R. Bhati ]
Mr. B.P. Dadhich ], for the appellants.
Mr. K.R. Bishnoi, Public Prosecutor.
<><><>
BY THE COURT:
After having heard the learned counsel for the appellants and the learned Public Prosecutor and having gone through the records, for the peculiar circumstances arising out of a wholly unjustified sentencing order dated 06.04.2012, as passed by the Addl. Sessions Judge No.2, Sriganganagar awarding, inter alia, death penalty to one of the accused Shyoprakash @ Karm Singh @ Sukhdev Singh with reference to the provisions of Section 303 IPC, we are clearly of the view that in order to secure the ends of justice, the sentencing part of the order impugned deserves to be set aside and the question of proper sentencing deserve to be remitted to the learned Trial Court. 2
DB Murder Reference No.2/2012 With 2 connected appeals.
As the matter regarding sentencing is proposed to be remitted to the learned Trial Court, dilatation on all the factual aspects in this order does not appear necessary. Only a brief reference to the relevant background aspects would suffice.
On a charge-sheet filed after investigation in FIR No.91/2009 of Police Station Lalgardh Jatan, Srigaganagar before the Judicial Magistrate, Sadulshahar, the matter was committed to the Court of Sessions and was ultimately taken up for consideration by the Addl. Sessions Judge No.2, Sriganganagar. The accused No.1 Dulla Singh @ Nirmal Singh (appellant of Cr. Appeal No.727/2012) and the accused No.2, Shyoprakash @ Karm Singh @ Sukhdev Singh (appellant of Cr. Appeal No.446/2012) were charged for the offences under Sections 302, 307, 341, 324, 326 read with Section 34 IPC and Section 27 of the Arms Act whereas the accused Nos.3 to 5, Harnek Singh @ Lali, Ashok Kumar and Manjeet Singh Sikalighar, were charged for the offence under Section 302/120B IPC. After taking evidence and hearing the parties, the learned Addl. Sessions Judge No.2, Sriganganagar proceeded to acquit the accused Nos.3 to 5 while extending them benefit of doubt. However, the accused No.1 Dulla Singh @ Nirmal Singh and the accused No.2 Shyoprakash @ Karm Singh @ Sukhdev Singh were convicted for the offences under Sections 302, 307, 341, 324, 326 read with Section 34 IPC and Section 27 of the Arms Act.
After hearing the parties on the question of sentence, the learned Trial Judge referred to the fact that the accused No.2 Shyoprakash had been convicted in the past by the Addl. Sessions Judge (Fast Track), Sriganganagar in the judgment and order dated 3 DB Murder Reference No.2/2012 With 2 connected appeals.
03.07.2003 (in Sessions Case No.67/2002) for the offence under Sections 348, 449, 341, 364, 342, 302/149, 323 and 324 IPC; and was, inter alia, awarded the punishment of life imprisonment for the offence under Section 302 IPC. The learned Judge also observed that the accused Shyoprakash was granted temporary suspension of execution of sentence by the order dated 06.02.2004 by this Court in the pending appeal (No.932/2003) but then, he did not surrender as required within time and then, standing warrant was ordered to be issued against him. The learned Judge further observed that this Court proceeded to dismiss the appeal to the extent it relate to this accused Shyoprakash. The learned Judge, therefore, found that there was no appeal of the accused Shyoprakash pending against the conviction in Sessions Case No.67/2002 and the judgment and order dated 03.07.2003 had acquired finality against him. The learned Judge, thereafter, observed that when the accused Shyoprakash had committed another offence of Section 302 IPC in the present case while being under sentence of life imprisonment, he was required to be dealt with under the mandatory provisions of Section 303 IPC and was, therefore, required to be awarded death penalty.
With these considerations and observations, for the offence under Section 302 IPC, the learned Judge awarded the punishment of life imprisonment to the accused No.1 Dulla Singh and also imposed a fine of Rs.10,000/- on him, but awarded death penalty to the accused No.2 Shyoprakash and also imposed a fine of Rs.10,000/- on him. The learned Judge also awarded life imprisonment to these accused persons for the offence under 4 DB Murder Reference No.2/2012 With 2 connected appeals.
Section 307 and in the alternative, for 307/34 IPC and further varying sentences for other offences, they were convicted for.
For the death penalty having been awarded, the sentence has been submitted to this Court for confirmation per Section 366 of the Code of Criminal Procedure and thereupon, Murder Reference No.2/2012 has been registered. The accused No.2 Dulla Singh has filed a regular appeal against the judgment and order dated 06.04.2012 being D.B. Cr. Appeal No.727/2012. The accused No.2 Shyoprakash has sent the jail appeal that has been registered as Appeal No.446/2012.
Taking up this murder reference for consideration, a co- ordinate Bench expressed its shock and anguish in the order dated 27.07.2012 that the learned Sessions Judge has passed the order per Section 303 IPC while totally ignoring the mandate of the Hon'ble Supreme Court in several cases including that in Mithu Vs. State of Punjab : AIR 1983 SC 473 wherein the said provisions of Section 303 IPC were held unconstitutional. The Bench considered it proper to bring the fact to the notice of the Hon'ble the Chief Justice and passed the order as under: -
"While adjudicating D.B. Cr. Murder Reference No.02/12 we noticed that the trial court by relying upon provisions of Section 303 Indian Penal Code awarded death sentence to accused Shyoprakash @ Karam Singh @ Sukhdev Singh. Necessary discussions made by the trial court in this regard reads as under: -
"52.ध र 303 भ .द.स. क पररभ ष इस पक र ह: -
आज वन ससदद ष द र हत क स ए दण!-वह मत# $ स दणण!त कक ज ग । भ .द.स. क ध र 303 क शबद व , क सरसर, त-र स अव कन कक ज न स ज हहर ह त ह कक ह ध र आज पक ह न क स मन क ई ववकलप नह, ह, हद क ई आज वन क र व स क दण!हदष रहत ह$ए क ई व क8 हत क अपर ध क ररत करत ह, त उस मत# $दण! हद ज न ववच रण न क स ए ब ध क र, ह। अत: असभ $8 श पक श उर@ कम@ससह क भ .द.स. क ध र 302/34 सपहAत ध र 303 क अध न रहत ह$ए मत# $ दण! स दणण!त कक ज न ववधधसममत पत त ह त हD।"5
DB Murder Reference No.2/2012 With 2 connected appeals.
"54.......................... ............................... असभ 8 $ श पक श उर@ कम@ससह उर@ सख $ दवससह क भ .द.स. क ध र 302/34 क अपर ध क स ए ध र 303 भ .द.स. क अन$सरन मF मत# $ण! स दणण!त कक ज त ह तथ दस हज र रप क अथ@दण! स भ दणण!त कक ज त ह, अथ@दण! अद न करन क सरI त मF पत क असभ $8 6 म ह क स ध रण क र व स और भ$गतग असभ $8 श पक श उर@ कम@ससह उर@ स$खदवससह क तब तक र स पर टक ज , जब तक उसक मत# $ नह, ह ज त ।"
While examining constitutionality of Section 303 Indian Penal Code providing mandatory imposition of death sentence on a life-convict undergoing life sentence Hon'ble Supreme Court in Mithu v. State of Punjab [AIR 1983 SC 473]; Ranjit Singh v. Union Territory [1983 Cr.L.J. 1730 (SC)] and Bhagwan v. State of U.P. [AIR 1984 SC 1120] has already declared the provision aforesaid unconstitutional. Section 303 Indian Penal Code, thus, is no more exists and, therefore, no capital punishment mandatorily as per provisions of Section 303 Indian Penal Code could have been awarded.
It is quite serious that the trial court in the instant matter settled death sentence on basis of a provision that is no more a part of statute book. It is always expected from a member of Higher Judicial Services to have knowledge of prevalent law and at least regarding authority to award death sentence. The manner in which the trial court in the instant matter has awarded death sentence is not only strange and shocking but also depicts inefficiency of the officer concerned.
We deem it appropriate to direct the Deputy Registrar (Judicial) of this Court to bring this fact in knowledge of Hon'ble the Chief Justice by placing a copy of this order before His Lordship.
Let this reference alongwith other connected appeals be listed for hearing on 1st August, 2012."
It may be observed at this juncture that the accused Shyoprakash appears to be involved in other cases too and 2 other appeals bearing No.932/2003 and 199/2005 have also been placed alongwith these matters on Board today.
Perusal of the record of D.B. Cr. Appeal No.932/2003 makes out that it relates to judgment and order dated 03.07.2003 as passed by the Addl. Sessions Judge (Fast Track), Sriganganagar in Sessions Case No.67/2002 realting to FIR No.53/2002, Police 6 DB Murder Reference No.2/2012 With 2 connected appeals.
Station Chunawad. In the said case, the present appellant Shyoprakash was tried alongwith other accused persons and the present appellant Shyoprakash and the accused Mahaveer Prasad were convicted in the said case, inter alia, for the offence under Section 302 IPC and were sentenced, inter alia, to life imprisonment. The present appellant Shyoprakash, who is the appellant No.2 in the said appeal availed of temporary bail under the order passed by the Court on 06.02.2004 in the said Appeal No.932/2003 but failed to surrender and his arrest could not be secured despite efforts. Ultimately, by an order dated 26.08.2008, this Court proceeded to dismiss the said appeal to the extent it related to this accused Shyoprakash. However, it is borne out that the accused Shyoprakash came to be arrested on 27.06.2009. Taking note of all the facts and circumstances of the case and the law laid down by the Hon'ble Supreme Court in Bani Singh: (1996) 4 SCC 720, a co- ordinate Bench has, by the order dated 27.11.2012, ordered restoration of the appeal in relation to the accused Shyoprakash while recalling the order dated 26.08.2008. In this manner, D.B. Cr. Appeal No.932/2003 now remains pending in relation to the accused Shyoprakash too.
Irrespective of what has been noticed above, so far the impugned order dated 06.04.2012 is concerned, we are constrained to observe that the learned Addl. Sessions Judge No.2, Sriganganagar appears to have proceeded rather in a cursory manner and has failed to take note of the fundamental aspect of law that Section 303 IPC has since been declared unconstitutional by the Hon'ble Supreme Court. The matter related to awarding of 7 DB Murder Reference No.2/2012 With 2 connected appeals.
nothing less than a death penalty and while doing so, it was minimum expected of the learned Judge to have remained careful as regards application of law. Perusal of the order impugned makes out that without discussing any other aspect, the learned Judge awarded death penalty taking Section 303 IPC to be of mandatory application. It has not been the finding that such penalty was being considered appropriate by the learned Judge while taking it to be rarest of rare cases.
The manner of sentencing in this matter by the learned Trial Judge having suffered from a fundamental error of approach, in our view, in order to secure ends of justice, it is necessary that such an order be set aside but at the same time, the matter be remitted to the learned Judge for hearing the parties again on the question of sentence and then, for passing appropriate order in accordance with law.
In view of the above, the sentence passed in the impugned order dated 06.04.2012 is set aside and the question of awarding of appropriate sentence is remitted to the Trial Court for decision afresh in accordance with law. As a necessary consequence, the proceedings in Murder Reference No.2/2012 stand terminated. However, as observed, the question of passing of appropriate sentence shall be re-considered by the Trial Court.
For the purpose of carrying out the requirements of this order, the respondent-State shall ensure presence of both the accused persons (i) Sheo Narayan @ Karm Singh @ Sukhdev Singh S/o Sheo Karan @ Dharma Singh and (ii) Dulla Singh @ Nirmal Singh S/o Gurnam Singh before the Trial Court on 13.09.2013. It shall be 8 DB Murder Reference No.2/2012 With 2 connected appeals.
expected of the learned Trial Judge to hear the accused persons as also Public Prosecutor and, thereafter, pass appropriate order of punishment in accordance with law.
In the interest of justice and in order to avoid multiplicity of proceedings, it is also considered appropriate and hence ordered that the order now to be passed by the learned Trial Court shall also form the subject matter of consideration of these appeals, i.e., Cr. Appeal No.446/2012 and 727/2012, which will remain pending and would be taken up for consideration after the order on the question of sentence is received from the Trial Court. It shall be expected of the Trial Court to pass requisite order at the earliest and in any case, within 15 days of the date of appearance fixed by this order and send the same immediately to this Court. The record be sent to the Trial Court immediately which will of course, be returned by the Trial Court after carrying out the requirements of this order.
List these appeals in the first week of October 2013. Before parting, we may also observe that other appeals involving the very same accused Shiv Narayan @ Sheo Narayan have also been placed for consideration alongwith these appeals. However, the said matters relate to the different Sessions Cases and, therefore, the said appeals (Nos.932/2003 and 199/2005) be processed separately and be placed for hearing at their turn. In this regard, we may also observe that the office appears to have prepared a composite paper book in relation to Murder Reference No.2/2012 and Cr.Appeals Nos.932/2003, 199/2005, 446/2012 and 727/2012. As noticed, Appeals Nos.199/2005 and 932/2003 are related with different sessions cases. Hence, the part of the paper 9 DB Murder Reference No.2/2012 With 2 connected appeals.
book concerning said two appeals may be segregated for appropriate proceedings. The learned Amicus Curiae has also returned the paper book for appropriate proceedings by the office.
Needless to observe that we have not pronounced on the merits of any of the case either way, which shall remain the matter of consideration at the relevant stage.
(V.K. MATHUR),J. (DINESH MAHESHWARI),J.
cpgoyal//-
10
DB Murder Reference No.2/2012 With 2 connected appeals.
D.B. Cr. Appeal No.446/2012 Shyoprakash @ Sukhdev Singh Vs. State DATE OF ORDER : 22nd August 2013 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE V.K. MATHUR By post.
Mr. K.R. Bhati ] Mr. B.P. Dadhich ], for the appellants.
Mr. K.R. Bishnoi, Public Prosecutor.
<><><> Vide common order made in D.B. Murder Reference No.2/2012 : State Vs. Shyoprakash @ Karam Singh @ Sukhdev Singh.
By order By order [Court Master] [Court Master] 11 DB Murder Reference No.2/2012 With 2 connected appeals.
D.B. Cr. Appeal No.727/2012 Dulla Singh & Nirmal Singh Vs. State DATE OF ORDER : 22nd August 2013 PRESENT HON'BLE MR. JUSTICE DINESH MAHESHWARI HON'BLE MR. JUSTICE V.K. MATHUR By post.
Mr. K.R. Bhati ] Mr. B.P. Dadhich ], for the appellants.
Mr. K.R. Bishnoi, Public Prosecutor.
<><><> Vide common order made in D.B. Murder Reference No.2/2012 : State Vs. Shyoprakash @ Karam Singh @ Sukhdev Singh.
By order By order [Court Master] [Court Master]