Madhya Pradesh High Court
Raghunath @ Jagan vs State Of M.P. on 25 August, 2022
Author: Rohit Arya
Bench: Rohit Arya, Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL APPEAL No.57 of 2001
Between:-
BABLU ALIAS BABULAL S/O PYARA
HARIJAN, AGED 18 YEARS, R/O VILLAGE
SADUMARA, POLICE STATION
SHAHDORA, DISTRICT GUNA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI S.S. GAUTAM - ADVOCATE WITH SHRI
DEVESH SHARMA-ADVOCATEAPPOINTED FROM LEGAL
AID AS COUNSEL FOR APPELLANT. )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION SHAHDORA, DISTRICT
GUNA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE
GENERAL)
AND
CRIMINAL APPEAL No.91 of 2001
2
Between:-
RAGHUNATH ALIAS JAGNA S/O KHEMA
HARIJAN, AGED 18 YEARS, R/O VILLAGE
SADUMARA, POLICE STATION
SHAHDORA, DISTRICT GUNA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI S.S. GAUTAM - ADVOCATE WITH SHRI DEVESH
SHARMA- ADVOCATE APPOINTED FROM LEGAL AID AS
COUNSEL FOR APPELLANT. )
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION SHADORA, DISTRICT
GUNA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE
GENERAL)
--------------------------------------------------------------------------------
Reserved on 20.07.2022
Delivered on 25.08.2022
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These appeals coming on for hearing this day, Hon'ble Shri
Justice Milind Ramesh Phadke, passed the following:
JUDGMENT
3
1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.91/2001 (Raghunath @ Jagna Vs. State of Madhya Pradesh) since the connected appeal has arisen from the common judgment passed by the learned Trial Court.
2. Feeling aggrieved by the judgment of conviction and order of sentence dated 16.12.2000 passed by the Learned Additional Sessions Judge, Ashoknagar, District Guna, in Sessions Trial No.106/2000, convicting appellants of this appeal as well as appellants of connected Criminal Appeal No.91/2001 under Sections 302/34 of IPC and thereby sentencing them to suffer life imprisonment, the appellants have preferred this appeal under Section 374 (2) of Code of Criminal Procedure, 1973.
3. In brief, the case of prosecution is that deceased Sanjeev Kumar was a student of Class Xth and used to go to Shadhora for his studies. Accused Jagna @ Raghunath, Babulal and witness (PW-2) Brijbhan were also studing with him. On 01.01.2000, when deceased Sanjeev Singh was going for taking tuitions at Shahdhora that on the way he met the accused Jagna @ Raghunath and Bablu. They both asked Rs.100/- for speculating (Satta) but Sanjeev Singh refused to give them the money. When he was returning from Shadhora to his home at Sadmura at about 12.30 p.m. that on the way at Kundalpur Ka Bag he met both the accused persons. As witness Brijbhan (PW.2) who was accompanying the deceased on another cycle had a flat tyre, he was laid back at a cycle shop for pumping up the tyre and in the mean while 4 deceased moved ahead. The accused persons obstructed his way, accused Babulal caught hold off his hands and accused Jagna @ Raghunath took out a knife out of his pocket and inflicted injury above right eye. As deceased Sanjeev Kumar cried in pain, Babulal freed his hands and gave a lathi blow on his left hand and when deceased Sanjeev Kumar retaliated accused Jagna @ Raghunath took lathi from Babulal and gave a lathi blow on the back of deceased. Hearing the hue and cry Harveer Singh (PW.1), Brijbhan (PW.2) and Randheer Singh (PW.3) came on the spot. Along with the present accused persons, accused Raghuveer, Munesh and Lakhan armed with lathi were also present on the spot and were extorting to kill deceased Sanjeev Kumar.
4. Since Sanjeev was badly injured he was picked up by Harveer Singh, Brijbhan and Randheer Singh and while they were bringing him home, he fell down in front of house of Imrat Singh, so leaving deceased the others went to the house of the deceased to inform his family members. After sometime as he regained strength somehow he managed to reach home, there he told the incident to his family member and then along with his father and brother went to Police Station Shadhora and lodged the report Ex. P/10 on the basis of which F.I.R. was registered vide Crime No.1/2000. Immediately he was sent for medical examination, but during treatment on 02/01/2000 Sanjeev Kumar succumbed to his injuries and died.
5. Since one of the accused Lakhan s/o Khema was absconding from the date of incident, challan was submitted in his 5 absence, after declaring him as absconding.
6. The Investigating Officer, Anil Tripathi (PW.11) on receiving the information recorded the statements of Mahendra, Laljiram, Kamar Bai and arrested accused Jagna @ Raghunath and Babulal on 07/01/2000 when they themselves surrendered in the Police Station vide arrest memo Ex.P/14. At the behest of accused Jagna @ Raghunath a knife was recovered vide Ex. P/7 and one lathi was recovered from accused Babulal vide Ex.P/6. On 1.1.2000 Dr. P.K. Pathak (PW.7) examined the deceased for the first time and vide MLC Ex. P/8 found following three injuries on his person:
"i) One Lacerated wound 2 X ½ X ½
cm on left eye lid with blood oozing
out.
ii) One contusion on upper limb 2 X 2
cm.
Iii) pain in lumber region on right side."
7. Looking to the injuries deceased Sanjeev was admitted in surgical ward. Dr. Sitaram Singh Raghuwanshi (PW-10) who conducted X-Ray Ex.P/12 of deceased Sanjeev found fracture of fronto-parietal region. Dr. Shivram Singh (PW-8) who conducted the post-mortem (Ex. P/9) on the body of the deceased at Guna Hospital found following injuries on the person of deceased Sanjeev:
"(i) Stitched wound 2.5 cm in length over left lateral supra-orbital region with clotted blood and black eye formation left side.
(ii) Contusion over left arm 2 cm x 2 cm 6 laterally bluish in colour.
(iii) Contusion bluish right lumber region 4 x 4 cm."
8. Upon internal examination fracture of left fronto-parietal was found. Brain membrane was found congested. On upper side of the membrane there was a blood clot in 10 x 8 cm area and on lower side there was a clot in 6 cm x 6 cm area. It was opined by the doctor that the injuries were of within 24 to 36 hours of the death and were caused by means of hard and blunt object. Vide post mortem report (Ex.P/9) it was also opined that death had occurred while the deceased was in coma, due to head injury and was homicidal in nature.
9. On completion of the investigation, charge sheet was filed against the accused persons in the court of Judicial Magistrate First Class, from where the case was committed to the Court of Sessions on 29/03/2000.
10. The learned Trial Judge on the basis of the averments made in the charge-sheet framed charges punishable under Sections 148, 149 and 302 of IPC and put the Session to trial.
11. In order to bring home the charges, the prosecution examined as many as 11 witnesses and placed Ex. P/1 to P/14 documents on record. The defense of appellants is of false implication and the same defense they set forth in their statements recorded under Section 313 Cr.P.C. The accused/appellants have examined one R.B. Jain (DW/1) and one Khemchand (DW/2) in their defense. One witness Pyara S/o Shri Darrauua was examined 7 as a witness in Cr.A.No.106/2000 with regard to age of accused Babulal.
12. The learned Trial Judge on the basis of evidence placed on record while acquitting co-accused Raghuveer & Munesh from all charges came to hold that charge under Section 302/34 of IPC has been proved against the appellants/accused as a result they were convicted and sentenced as mentioned hereinabove.
13. In this manner, this appeal and the connected appeal came to be filed by the appellants assailing their judgment of conviction and order of sentence passed by the learned Trial Court.
14. The following points were raised by the learned counsel appearing for appellants Babulal and Jagna @ Raghunath in furtherance of his arguments:
"(i) The learned Trial Court erred in not considering the age of the appellants, who were minor i.e. below 16 years of age at the time of occurrence of the incident on 01/01/2000, thus should had proceeded treating them to be juveniles as per Juvenile Justice Act, 1986. Also with the advent of Juvenile Justice (Care and Protection of Children) Act, 2000, (herein after called the 2000 Act), which came in effect from 1.4.2001, since the age was increased to 18 years for considering Juvenility and as per the case law discussed in Pratap Singh Vs. State of Jharkhand reported in (2005) 3 SCC 551, the 2000 Act would be applicable to a proceeding in any court/authority initiated under the 1986 Act which was pending when the 8 2000 Act came into force and the person had not completed 18 years of age as on 01/04/2001 he would be treated as juvenile and since the present appeal was pending as on 01/04/2001, and the appellants were below 18 years and were juvenile, therefore, the conviction based upon treating them to be major, is vitiated and deserves to be set aside.
(ii) There is no explanation afforded by the prosecution for delay in lodging the F.I.R, which was lodged with a delay of 4 to 4 ½ hours at about 4.00 p.m. on 01/01/2000, whereas the incident allegedly took place at about 12.30 p.m. and the distance of Police Station from the place of incident was hardly 1.5 kms.
(iii) There was no explanation for delay of 2 to 4 days in recording of the statements of witnesses who were present with the deceased at the time F.I.R. was lodged, thus, there statements should not have been relied. Even the presence of eye witness Brijbhan (PW.2) is highly suspicious as there was material discrepancy in the documentary evidence and ocular statements and when the presence of Harveer (PW.1) and Randheer (PW.3) had been disbelieved by the Trial Court.
(iv) Seizure of arms from the accused persons were not proved by the prosecution, as the seizure witness was not consistent with his version and no blood was found on the seized weapons, which creates doubt.
(v) There is major discrepancy and inconsistency in 9 ocular evidence and the medical evidence as the injury on head medically was found to have been caused by hard and blunt object, whereas as per the deceased himself & eye-
witnesses version the injury to the deceased was caused by means of knife which is hard and sharp object. Also the Doctor who had conducted the postmortem had not established the nature of death whether the death was homicidal/ suicidal/accidental, which makes the story of prosecution doubtful.
(vi) Lastly, the dying declaration in the form of report Ex.P/10 recorded at the behest of deceased and his statement under section 161 Cr.P.C. Ex. P/11 creates suspicion, as they were not recorded by either Magistrate or Doctor and were rather tutored or prompted, thus, should not have been believed.
15. In furtherance of the first point the learned counsel for the appellant argued that learned Trial Court misdirected itself in not considering the age of accused Jagna @ Ragunath, who apparently was of the age of 14 years 11 months at the time of incident since his date of birth was 04/02/1985 and as per the definition of 'Juvenile' contained in Juvenile Justice Act, 1986:
"A boy who has not attained the age of 16 years and a girl who had not attained the age of 18 years", accused/appellant Jagna @ Ragunath was a juvenile on 01/01/2000, i.e. the date of incident and he could not have been tried as a major, thus, the entire trial stands vitiated, resulting in his acquittal."10
16. It was also contended that after the repeal of the Juvenile Justice Act, 1986 by "Juvenile Justice (Care and Protection of Children)Act, 2000, age for juvenility was increased to 18 years and under the 2000 Act, a boy below the age of 18 years on the date of commission of offence prior to 01/04/2001 would be treated as Juvenile even if the claim of juvenility was raised after they had attained the age of 18 years on or before the commencement of the Act and were undergoing sentence upon being convicted. To bolster his submissions a chart depicting the respective ages of the both the accused/appellants was submitted, which is reproduced as below:
Description Date Age on 1.1.2000
Date of Birth 04.02.1985
(Raghunath @
Jagna)
Date of Incident 01.01.2000 14 years 11 months
Date of Arrest 07.01.2000 14 years 11 months
and 6 days
Date of Conviction 16.12.2000 15 years 10 months
(Age Determined and 12 days
under the Act 1986)
Date of Birth of co- 06/08/83 16 years 4 months
accused Babulal and 26 days
17. It was further argued that even if the age of both the accused/appellants were considered above 16 years as on 01/01/2000, but in the light to 2000 Act, on 01/04/2001, on which 11 date the Act of 2000 became applicable, their age were below 18 years, thus, even otherwise they were juvenile and could not have been convicted. Reliance was placed by the learned counsel for the appellant in the matter of Pratap Singh Vs. State of Jharkhand and another, reported in (2005) 3 SCC 551.
18. With regard to second contention raised by the learned counsel for the appellant it was argued that deceased in his report Ex. P/10, as well as his statements under section 161 Cr.P.C. Ex. P/11, had specifically mentioned the time of occurrence of the incident as 12.30 pm on 01/01/2000, but the matter was reported to the Police at about 4.00 pm (as per the statements of Dhaniram Kalawat (PW.9)) and there was no explanation about the delay of about 4 ½ hours, when the Police Station was at just 1 ½ kms distance, which fact cannot rule out the recording of F.I.R. after pre-mediation of minds. Reliance was placed by the learned counsel for the appellant in the matter of Ganesh Bhavan Patel and another Vs. State of Maharashtra, reported in AIR 1979 SC 135.
19. Third contention regarding recording statements of witnesses after 2-4 days of the incident, was agitated on the ground that though the alleged eye-witnesses were present at Police Station at the time of lodging of the complaint by deceased, their statements under section 161 Cr.P.C. were not recorded by the Police, for which there was no explanation given by the Investigating officer, which caste's a shadow over the prosecution case.
1220. In furtherance of his arguments learned counsel for the appellants argued that the presence of the eye-witnesses at the scene of occurrence though could not be established by the prosecution and even held by the Trial Court, but even then the prosecution story was held to be proved. To elaborate it was contended that from Ex. P/1, which is the spot map, Brijbhan (PW.2) is said to have heard the screams from a distance of 250 meters, whereas according to the Patwari Map Ex. P/2, the distance is shown to be about 700 feet. In the court statement of Brijbhan (PW.2) in para 10 he stated that he heard the voice of deceased from a distance of 200 feet, thus, there was material discrepancy in the documentary and ocular statement of the eye- witness. Also in the spot map Ex.P/1, the place shown where the deceased fell down after he got injured, no blood soaked soil was found, rather was found about 300 meters away from the spot and there was conspicuous absence of Brijbhan in the spot map, which creates doubt about his presence.
21. With regard to the fourth contention it was argued that as the accused persons had surrendered themselves at the Police Station and recovery of weapons had been shown at the Police Station itself, the statement of Imrat Singh (PW.6), the witness to the seizure memo, would be relevant to take note of which makes it clear that the weapons were planted and in fact were not produced/recovered at the instance of the accused persons. Even the make of knife had not been mentioned in the seizure memo Ex. P/7. Another aspect pointed out was that the other witness to the 13 seizure memo Randheer Singh was not examined and was given up by the prosecution and as no blood stains were found over knife, it castes cloud over the prosecution story.
22. The learned counsel for the appellants made a further attempt to criticize the prosecution story by contending that there is a marked inconsistency between the ocular evidence and medical evidence, in so far as Dr. P.K. Pathak (PW/7), who had done the MLC of deceased had stated in para 1 of his ocular statement before the court that all injuries sustained by the deceased were caused by means of hard and blunt object. Further in para 2 he had stated that injury No.1 could be caused if the head is hit by a hard and blunt object in speed, and in para 5 he stated that injury above left eye cannot be caused by means of a knife. Further, statement of Dr. Shivram Singh Raghuvanshi (PW.8) was referred, who had conducted the post mortem, in para 7 had stated that injury on head could be caused even from fall from bicycle. The factum of fracture of fronto-parietal region was also confirmed by Dr. Sitaram Singh Raghuvanshi (PW/10) and since he had admitted that deceased was of his caste, his statement appears to be biased and should not have been relied. It was further argued that even the nature of death had not been established by the prosecution as from the report of Dr. Shivram Singh Raghuvanshi (PW/8) it is not established, whether the death was homicidal/accidental or suicidal and in absence thereof it could not be said that the death occurred due to injuries caused by the accused/appellants. Reliance was placed by the learned 14 counsel for the appellant in the matter of Amar Singh Vs. State (NCT of Delhi), reported in 2020 Cr.L.R. (SC) 1030.
23. With regard to the last contention about treating the report Ex.P/10 and statement under section 161 Cr.P.C. to be dying declarations, it was vehemently argued that both could not have been treated as dying declarations, as they were not recorded either by any Magistrate or a Doctor. At the time of their recording father and brother of deceased were standing over there, therefore, suspicion of it being tutored/prompted, cannot be ruled out. Also the contents of F.I.R. Ex. P/10 is not corroborated with the ocular as well as medical evidence, thus, belying the story of the prosecution, the benefit of doubt deserves to be given to the accused/appellants and they be acquitted.
24. Lastly, it was contended though not with full precision that the prosecution also failed to prove the motive available with the accused/appellants for murder of Sanjeev, apart from paltry demand of Rs.100/- for speculation (Satta) by the accused/appellants and refusal thereof by the deceased.
25. Thus, on the strength of the above arguments it was contended that the prosecution had miserably failed to prove its case and prayed for allowing the appeal and consequently acquitting the appellants of the charge of offence under section 302/34 I.P.C.
26. Per contra learned Government Advocate appearing for the State submitted that regarding the claim of the accused/appellants as to they being juvenile at the time of incident, Trial Court vide 15 separate orders dated 29/05/2000 in case of Jagna @ Raghunath and 28/09/2000 in case of Babulal had categorically given finding as to their age on 01/01/2000 and came to a conclusion that both were above the age of 16 years, which as per the definition of juvenile under the 1986 Act, were not juvenile and since the trial had concluded in the month of December, 2000 itself, the benefit of 2000 Act cannot be derived by the appellants which came into effect on 1.4.2001 and their claim once rejected after due appreciation of documentary and oral evidence cannot be agitated at this juncture. It was further submitted that so far as age of accused/appellant Babulal is concerned, who is appellant in Cr.A. No.57/2001, the Trial Court vide order dated 28/09/2000 had accepted his date of birth mentioned in the school certificate, according to which the date of birth of accused/appellant was 06/08/1983 and on 01/01/2000, i.e. on the date of incident he was approx. 16 years 5 months, thus in any way he was not juvenile. Regarding accused/appellant Raghunath @ Jagna the Trial Court vide order dated 29/05/2000 had rightly concluded that since there was overwriting in the mark sheet of middle school submitted on his behalf as a proof of age, which was the basis of recording the date of birth in the school entry register of Higher Secondary School, Shadhora and issuance of certificate by the Principal of the school, could have been believed. Apart from that from the statements of father of accused/appellant Raghunath @ Jagna it could be gathered that his age was about 20-21 years at the time of incident as he was 5-6 years younger to the eldest son Lakhan, 16 who was 26 years of age, coupled with the fact that in the voter list of the year 1999 the age of accused/appellant Raghunath @ Jagna was mentioned as 18 years, thus, he was aged about 20 years at the time of incident.
27. Learned Government Advocate further contended that so far as delay of approx. 4 ½ hours in lodging the F.I.R. is concerned, from the contents of the F.I.R. and the statements of deceased recorded under section 161 Cr.P.C., it is clear that immediately after the incident when Brijbhan (PW.2), Harveer Singh (PW.1) and Randheer Singh (PW.3) were taking him home, he fell down in front of the house of Imrat Singh. All the three after making him comfortable went to his house for informing his parents about the incident and as & when he regained strength after recovering from giddiness, he himself on his own went home and thereafter informed the incident to his father, brother and other family members. Thereafter, he was taken by his father in the Tractor to the Police Station, where he lodged the F.I.R., thus, as such though there is no delay in lodging the F.I.R., but even if is assumed that there is a delay it had been very well explained.
28. With regard to the contention of the appellants as to presence of eye-witness Brijbhan (PW.2) on the spot is concerned it was argued by learned Government Advocate that the counsel for the appellant had muddled himself with the actual distance of his presence in the spot map, patwari map and the statements, which are mentioned either in meters or feet and when calculated in either terms would be the same. (250 meters in spot map is 17 equivalent to 820 feet, which is approx., same to what is mentioned in Patwari map i.e. 700 feet) and as alleged by the counsel for the appellant that Brijbhan (PW.2) had not stated from which distance he heard the voices, thus, on that basis the presence of Brijbhan (PW.2) cannot be doubted. As regards seizure of weapons from the accused/appellants not proved as argued by the learned counsel for the appellants, it was contended by the learned Government Advocate that seizure Ex. P/6 & P/7 were duly proved by the Investigating Officer Anil Tripathi (PW.11) and Imrat Singh (PW.6), who had also duly supported the seizure memo, thus, the arguments on behalf of appellants are misplaced. To bolster his submissions he placed reliance in the matter of Modan Singh vs. State of Rajasthan, reported in (1978) 4 SCC 435, wherein it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. He further placed reliance in the matter of Mohd. Aslam Vs. State of Maharashtra, reported in (2001) 9 SCC 362. In Anter Singh Vs. State of Rajasthan, reported in (2004) 10 SCC 657, it was further held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated, but in the present matter apart from the Investigating Officer, the seizure witness Imrat Singh (PW.6) had also supported the case of the prosecution.
1829. Controverting the arguments regarding inconsistency of ocular evidence with the medical evidence, it is submitted by the learned Government Advocate that though the Dr. P.K. Pathak (PW.7) had opined that the injury over the left eye, which was found to be a lacerated wound as per MLC and was the cause of death, was caused by means of hard and blunt object, and though knife is not a hard and blunt object it is capable of inflicting lacerated wound instead of an incised wound. It was also contended that since no question was put to the Doctor by the Defence Counsel as to the nature of weapon which could have caused such injury it cannot be said that such injury could not have been caused with a knife.
30. With regard to absence of motive as argued by the learned counsel for the appellants, it was argued by the learned Government Advocate that motive behind the incident had well been established by the prosecution of demand of Rs.100/- by the accused/appellants from the deceased and refusal to accede to their demand by the deceased, which looking to their rural background was enough for provocation for committing the crime. Lastly, denying the contention of that the F.I.R. and the statement under section 161 Cr.P.C. recorded at the behest of deceased Sanjeev could not have been treated to be dying declaration, it was submitted that Hon'ble Supreme Court in the matter of Pradeep Bisoi @ Ranjit Bisoi vs The State Of Odisha in Criminal Appeal No. 1192/2018 decided on 10/10/2018, while discussing sections 32 of Evidence Act and sections 161 & 162 of Cr.P.C. had held 19 that statement recorded under section 161 Cr.P.C. after death could be used as dying declaration.
31. Thus, concluding his arguments he prayed for dismissal of the appeal.
32. Heard the learned counsel for the parties in extenso and perused the evidence on record.
Legal Issues Juvenility of the Accused/Appellants:
33. The present incident pertains to the year 2000. At that time Juvenile Justice Act, 1986 (herein after called "1986 Act") was the Governing Act which provided for the care, protection, treatment, development and rehabilitation of neglected or delinquent juveniles and for the adjudication of certain matters relating to, and their disposition. As per section 2 (h) of Juvenile Justice Act, 1986, Juvenile means:
"2 (h) "juvenile" means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years."
34. In the above context this Court is first required to analyze the question as to whether the accused/appellants were not juvenile on the date of incident 01/01/2000 within the meaning of Juvenile Justice Act, 1986, but with the advent of 2000 Act, since they had not completed the age of 18 years, can they be declared Juvenile and whether in that context the entire trial would be said to be vitiated?
35. Before alluding to the above question, we may note that the 20 issue with regard to the date, in so far as the age of both the accused is concerned and is relevant for determining the applicability of either of the two acts, who are claiming to be juvenile, is no longer res integra. The Constitutional Bench of Hon'ble Supreme Court in the matter of Pratap Singh Vs. State of Bihar, reported in (2005) 3 SCC 551, has held that the relevant date for determining the age of the accused, who claims to be a juvenile, would be the date on which the offence has been committed and not the date when he is produced before the authority or in the Court. The Hon'ble Supreme Court in the same matter had also dealt with the issue of applicability of 2000 Act in cases where proceedings initiated under the 1986 Act and were pending when the 2000 Act came into force with effect from 01/04/2001. Taking into consideration the provisions of Section 3 and 20 along with the definition of "juvenile" in Section 2 (k) of the 2000 Act, as juxtaposed with the definition of a male juvenile in Section 2 (h) of the 1986 Act, by majority, it was held that the 2000 Act would be applicable in a pending proceeding in any Court/Authority initiated under the 1986 Act, that is to say is pending when the Act of 2000 came into force and the accused had not completed 18 years of age as on 01/04/2001. Thus, it was held that a male offender, against whom proceedings had been initiated under the 1986 Act in any Court/Authority and had not completed the age of 18 years as on 01/04/2001, would be governed by the provisions of the 2000 Act.
36. Relevant extract of preposition as laid down in Pratap 21 Singh (supra) is reproduced hereinbelow:
"87. The salient features of the Act of 2000 may be noticed at the outset.
88. Section 1(3) of the Act of 2000 states that it would come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. The Central Government had issued an appropriate notification in terms whereof 1.4.2001 has been specified as the 'appointed date' from which the provisions of the said Act will come into force. The Act, thus, is prospective in its operation. However, the Act of 2000 has repealed the Act of 1986. It has obliterated the distinction between juvenile of different sex by reason whereof, a male juvenile would also be juvenile if he has not crossed the age of 18.
89. A person above 16 years in terms of the 1986 Act was not a juvenile. In that view of the matter the question whether a person above 16 years becomes 'juvenile' within the purview of the Act of 2000 must be answered having regard to the object and purport thereof .
90. In terms of the 1986 Act, a person who was not juvenile could be tried in any court. Section 20 of the Act of 2000 takes care of such a situation stating that despite the same the trial shall continue in that court as if that Act has not been passed and in the event, he is found to be guilty of commission of an offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any sentence in relation to the juvenile, he would be forwarded to the Board which shall pass orders in accordance with the provisions of the Act as if he has been satisfied on inquiry that a juvenile has committed the offence. A legal fiction has, thus, been created in the said provision. A legal fiction as is well- known must be given its full effect although it 22 has its limitations. [See Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. and Others [(2003) 2 SCC 111], ITW Signode India Ltd. vs. Collector of Central Excise- (2004) 3 SCC 48 and Ashok Leyland Ltd. Vs. State of Tamil Nadu & Anr., (2004) 3 SCC 1]
91. The effect of the expression "as if" has recently been considered in M/s Maruti Udyog Ltd. vs Ram Lal, (2005) 2 SCC 638.
92. Thus, by reason of legal fiction, a person, although not a juvenile, has to be treated to be one by the Board for the purpose of sentencing which takes care of a situation that the person although not a juvenile in terms of the 1986 Act but still would be treated as such under the 2000 Act for the said limited purpose. The Act provides for a beneficent consequences and, thus, it is required to be construed liberally.
93. We are not oblivious of the proposition that a beneficent legislation should not be construed so liberally so as to bring within its fore a person who does not answer the statutory scheme. [See Deepal Girishbhai Soni and Others Vs. United India Insurance Co. Ltd. Baroda, (2004) 5 SCC 385].
94. However, as would appear from the provisions of the Act of 2000 that the Scheme of the 2000 Act is such that such a construction is possible. The same would also be evident from Section 64 which deals with a case where a person has been undergoing a sentence but if he is a juvenile within the meaning of the 2000 Act having not crossed the age of 18, the provisions thereof would apply as if he had been ordered by the Board to be sent to a special home or the institution, as the case may be.
95. Section 20 of the Act of 2000 would, therefore, be applicable when a person is below 23 the age of 18 years as on 1.4.2001. For the purpose of attracting Section 20 of the Act, it must be established that: (i) on the date of coming into force the proceedings in which the petitioner was accused was pending; and (ii) on that day he was below the age of 18 years. For the purpose of the said Act, both the aforementioned conditions are required to be fulfilled. By reason of the provisions of the said Act of 2000, the protection granted to a juvenile has only been extended but such extension is not absolute but only a limited one. It would apply strictly when the conditions precedent therefor as contained in Section 20 or Section 64 are fulfilled. The said provisions repeatedly refer to the words 'juvenile' or 'delinquent juveniles' specifically. This appears to be the object of the Act and for ascertaining the true intent of the Parliament, the rule of purposive construction must be adopted. The purpose of the Act would stand defeated if a child continues to be in the company of an adult. Thus, the Act of intends to give the protection only to a juvenile within the meaning of the said Act and not an adult. In other words, although it would apply to a person who is still a juvenile having not attained the age of 18 years but shall not apply to a person who has already attained the age of 18 years on the date of coming into force thereof or who had not attained the age of 18 years on the date of commission of the offence but has since ceased to be a juvenile."
37. So far as appellant Babulal in Cr.A. No.57/2001 is concerned, only mark-sheet of Middle school of the year 1998 and certificate issued by Principal, Government Higher Secondary School, Shadhora was produced, according to which the date of 24 birth of accused/appellant Babulal was 06/08/1983. Learned Trial Court while conducting inquiry so as to his age, vide order dated 28/09/2000 had found the mark sheet and the school certificate to be genuine documents and concluded that the age of accused/appellant Babulal at the time of incident was above 16 years. From the date of birth as found proved if age is calculated it comes to be 16 years 4 months and 25 days to be precise. Thus, as per the 1986 Act, he was not juvenile. Later the 1986 Act came to be repealed with the advent of Juvenile Justice (Care and Protection of Children) Act, 2000. Though the judgment of conviction passed by learned Trial Court was on 16.12.2000 and the 2000 Act was made applicable from 1.4.2001, since the appeal which was pending against the judgment of conviction dated 16.12.2000 being continuation of trial the question of juvenility will have to be considered in the light of provisions of 2000 Act, and therefore, in wake of provisions of 2000 Act as well as preposition as laid down in Pratap Singh (supra) the age of appellant Babulal at the time of coming into force of 2000 Act i.e. 1.4.2001 was 17 years 7 months and 25 days approx. and thus he should be treated as a juvenile and is hereby treated as juvenile.
38. In such a situation the question for consideration with regard to accused/appellant Babulal, is as to what order on sentence should be passed for the offence u/s 302/34 I.P.C?
39. In a similar situation Supreme Court in the matter of Dharambir Vs. State (NCT of Delhi) and another reported in 25 (2010) 5 SCC 344 in para 18 to 20 had held:
"18. Section 15 of the Act of 2000 provides for various orders which the Juvenile Justice Board (for short "the Board") may pass against a juvenile when it is satisfied that (2009) 13 SCC 211 the juvenile has committed an offence, which includes an order directing the juvenile to be sent to a special home for a period of three years. Section 16 of the Act of 2000 stipulates that where a juvenile who has attained the age of sixteen years has committed an offence and the Board is satisfied that the offence committed is so serious in nature that it would not be in his interest or in the interest of other juvenile in a special home to send him to such special home and that none of the other measures provided under the Act is suitable or sufficient, the Board may order the juvenile in conflict with law to be kept in such place of safety and in such manner as it thinks fit and shall report the case for the order of the State Government. Proviso to sub-section (2) of Section 16 of the Act of 2000 provides that the period of detention so ordered shall not exceed in any case the maximum period provided under Section 15 of the said Act, i.e., for three years.
19. In the instant case, as per the information furnished to us, the appellant has undergone an actual period of sentence of 2 years, 4 months and 4 days and is now aged about thirty years. We feel that, keeping in view the age of the appellant, it may not be conducive to the environment in the special home and to the interest of 26 other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to special home or for keeping him at some other place of safety for the remaining period of less than eight months, the maximum period for which he can now be kept in either of the two places.
20. Accordingly, while sustaining the conviction of the appellant for the afore- stated offences, we quash the sentences awarded to him and direct his release forthwith, if not required in any other case. The appeal succeeds partly to the extent indicated above."
40. Thus, taking a similar view, so far as accused/appellant Babulal in Cr.A. No.57/2001 is concerned, since he had undergone an actual period of sentence of 1 year, 4 months and 9 days and today would be aged about thirty nine years, we feel that, keeping in view his age, it may not be conducive to the keep him in the special home and it would also not be appropriate to the interest of other juveniles housed in the special home, to refer him to the Board for passing orders for sending the appellant to special home or for keeping him at some other place of safety for the remaining period, which as per proviso to sub-section (2) of Section 16 of the Act of 2000 shall not exceed in any case the maximum period provided under Section 15 of the said Act, i.e., for three years, the maximum which he can now be kept in either of the two places. Accordingly, we sustain the conviction, but quash the sentence awarded to him and give a direction of his release, if not required 27 in any other case. Criminal appeal No.57/2001 is thus, partly allowed to the extent indicated above.
41. Now on the touchstone of the above legal proposition, the case of accused/appellant Raghunath @ Jagna is put to test and it is found that Trial Court while deciding the issue vide order dated 29/05/2000 had rightly concluded that there is overwriting over the date of birth 04/02/1985 mentioned in the mark-sheet of Middle School for the year 1999, which is even visible to the eyes of this Court. We also concur with the findings given by Trial Court while observing that R.B. Jain (DW.1), Principal of Higher Secondary School, Shadhora, who had issued the certificate of age & had admitted that in the school entry register the date of birth was filled by the clerk and the entry in the register was made on the basis of T.C. of Middle School from where the accused/appellant Raghunath @ Jagna had shifted, that he had no personal knowledge of his date of birth and only on the basis of entries in the school entry register that he had issued the certificate, which could not be believed. It was also admitted by him that there was overwriting in the mark sheet Ex. P/2, which was of Middle School of the year 1999. Further it was held though original T.C., admission form and mark-sheet were available with the school, they were not called for.
42. The Trial Court had also examined father of the accused/appellant Raghunath @ Jagna as DW.2. He in his statement had admitted that his eldest son is aged 26 years and Ragunath was 5-6 years younger to him, on the basis of which his 28 age comes to 20-21 years. This fact also finds support from the voter list of the year 1999, where name of accused/appellant Raghunath @ Jagna's name is appearing at S.No. 649, and his age mentioned is 18 years. Thus, it was concluded by the Trial Court that accused/appellant Raghunath was not juvenile as on 01/01/2000. We are, in agreement with the findings arrived at by the Trial Court. The overwriting in the mark sheet is distinctly visible and thus, could not be reckoned for assessing the age of the accused/appellant Raghunath, so also the school certificate issued by the Principal appears not to be a genuine document as source of entries made therein could not be established by cogent evidence. In the appeal though with vehemence the point of juvenility of the accused/appellants was raised but to substantiate the claim, no fresh documents/evidence/material was produced on behalf of the claimant so as would had prima facie satisfied us to come to a conclusion to hold an inquiry into the claim of juvenility would be necessary, as it was for the claimant to have discharged the initial burden, as he was claiming the juvenility. As to what materials would prima facie satisfy the Court and/or are sufficient for discharging the initial burden cannot be cataloged nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility?
43. Thus, in the present context if the determination of the age is to be done on the basis of voter list it is necessary that the same would have to be considered as per Section 35 of the Indian 29 Evidence Act, inasmuch as any public or official document maintained in the discharge of official duty would have greater credibility than private documents. (reference be had to the decision of Supreme Court in the matter of Rishipal Singh Solanki vs The State Of Uttar Pradesh, reported 2021 SCC Online SC 1079 .
44. Thus, on the basis of above discussion, this Court concludes that accused/appellant Raghunath @ Jagna was not juvenile on the date of incident i.e. 01/01/2000 and the Trial Court had rightly tried the case treating him to be major, thus, first argument is answered accordingly.
45. So far as argument of the learned counsel for the appellants that the F.I.R. being vitiated due to delay of approx.. 4 to 4 ½ hours in its lodging and in absence of any explanation for the same by the prosecution, is concerned, it had been time and again discussed and observed by various Courts that as such there is no length of time which is set either by the legislature or the judiciary for giving information of a crime to the police, however, the FIR has to be filed within reasonable period. The issue of reasonable time being a matter is for determination of judge in each case, mere delay in filing the FIR with the police is therefore, not essentially, as a matter of law, lethal to prosecution.
46. In the present matter, F.I.R. lodged at 4 pm of the incident which took place at 12.30 pm, cannot be said to be a delayed F.I.R., as the deceased, who had lodged the F.I.R. himself, had given an explanation regarding the time of his reaching the Police 30 Station. He had specifically stated that immediately after the incident, when he was being brought home by Harveer Singh (PW.1), Brijbhan (PW.2) & Randheer (PW.3), he fell down in front of house of Imrat, there he sat for some time and after regaining strength reached home and told about the incident to his family members. Thereafter, along with his father and brother he went to Police Station and had lodged the F.I.R. Thus, the contention of delayed F.I.R has no force and is hereby rejected.
47. In this connection, it will profitable to take note of the following observation made in Tara Singh Vs. State of Punjab, AIR (1991) SC 63:
"The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such 31 innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case."
48. So far as contention of the learned counsel for the appellant regarding dent being caused in the prosecution case due to delay in recording statement of the some of the eye-witnesses under section 161 Cr.P.C. is concerned, though has substantial force, cannot be outrightly accepted, firstly the case of the prosecution is not based upon testimony of those witnesses, as none of them were eyewitnesses and secondly the F.I.R was itself lodged by the deceased and his statements under section 161 Cr.P.C. was also recorded immediately after he returned from the hospital after getting treatment and was duly corroborated with the statement of another eye-witness i.e. Brijbhan (PW.2), who was named as an eyewitness in the F.I.R.
49. So far as presence of Harveer Singh (PW.1) and Randheer (PW.3) on the spot being doubtful as argued is concerned, the Trial Court after a detailed discussion had given a finding that they were 32 not eyewitnesses and we see no reason for departure from the same, but they not being eyewitnesses has no bearing over the prosecution story due to the fact as discussed above that F.I.R. was lodged by deceased himself, had got his statement under section 161 Cr.P.C. promptly recorded, which would treated as dying declaration, as would be discussed in later para's and was duly supported by the Brijbhan (PW.2), thus, the prosecution story was duly proved.
50. With regard to seizure of the weapon being doubtful, from the evidence it is seen that seizure Ex. P/6 & P/7 were duly proved by the Investigating Officer Anil Tripathi (PW.11) and Imrat Singh (PW.6), the seizure witness, except for minor discrepancies, had also supported the seizure memo, thus, in absence of any incriminating material or any contradiction in the statements of seizure witness only on the basis of suspicion, the seizure cannot be doubted, therefore, the arguments on behalf of appellants are misplaced. The above finding finds support from the decisions of the Hon'ble Supreme Court in the matter of Modan Singh vs. State of Rajasthan (supra), Mohd. Aslam Vs. State of Maharashtra (supra) and Anter Singh Vs. State of Rajasthan (supra) as relied by the Government Advocate.
51. Regarding discrepancy in the ocular statement and the medical evidence as advanced by the learned counsel for the appellant to contend that deceased and Brijbhan (PW.2) had stated that accused/appellant had caused a knife injury over the left eye, 33 but the Dr. Shivram Singh (PW/8) who had conducted the post mortem & Dr. P.K. Pathak (PW/17) who had conducted MLC had opined that the injury sustained by the deceased over the left eye was caused by means of hard and blunt object, thus, the very version of the prosecution story becomes doubtful, as by means of knife, which is a hard & sharp object, an incised would be caused and not a lacerated wound. Before adverting to above contention, it is profitable to refer "Medical Jurisprudence" by Dr. R. M. Jhala and Dr. V. B. Raju (third edition), Chapter XXIII under the head "Injuries in Medicine. Abrasions, Contusions, Bruises, Lacerated Wounds, Incised Wounds."
At page 167, the Authors have observed as under:
"Some authors go to the extent of stating that a lacerated wound is always a contused lacerated wound. But this is not correct. Processes of pinning or fixing and tearing do not require contusing or crushing force necessarily to bring about a tear or laceration. It is the angularity, which is very necessary for pinning, that governs laceration. If cutting force is not steadily applied, even a knife is capable of producing lacerated wound. This occurs when there is shaking of hand, grasping the knife as in struggle or if the body moves as during struggle or attempted escape. In these cases the knife fixes and skin tears instead of knife moving and skin being steady."
52. From the above observation, even by means of a knife a lacerated would be caused and if we look to history of the 34 accused/appellant, he appears to have no criminal past, thus, could be said not to be well versed with the use of knife as a hardened criminal and situation of any kind as stated in the above excerpt cannot be ruled out. Therefore, we are of the opinion that the injuries in question can also be caused by a knife specially in view of the fact that no question in this regard was put to Dr. P.K. Pathak (PW.7) and in view of the fact that there is no reason for Brijbhan (PW.2) to testify falsely against the accused. Thus, this argument is also misplaced & cannot be accepted.
53. With regard to the argument that Trial Court had erred in holding that the contents of F.I.R. and the statement under section 161 Cr.P.C. comes within the purview of Dying Declaration, when admittedly it was neither recorded by a Magistrate or the Doctor nor it fulfills the criterion of section 32 of the Evidence Act, it is observed from the impugned judgment that the Trial Court had not in specific terms has held as above, but since this point was raised by the counsel for the appellants, it is addressed upon and for that purpose it is necessary to refer to provisions of section 32 of the Evidence Act and sections 161 & 162 of Cr.P.C.
54. Section 32 in so far as relevant in the present case is as follows:-
"S.32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. -- Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become 35 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. Such 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.
Other provisions relevant to be noticed are Section 161 and Section 162 of the Code of Criminal Procedure. Section 161 deals with examination of witnesses by police. Section 162 deals with "statements to police not to be signed - Use of Statements in evidence.
Section 162 Cr.P.C. is as follows:-
"162. Statements to police not to be signed:
Use of statements in evidence.-- 162 (1) .............
162 (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions of section 27 of that Act.36
Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.
Sub-section (2) to Section 162 incorporate a clear exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of Indian Evidence Act, thus, is clearly relevant and admissible.
55. In Mukeshbhai Gopalbhai Barot vs. State of Gujarat, reported in (2010) 12 SCC 224, the Hon'ble Supreme Court had occasion to consider Sections 161 and 162 of Cr.P.C. and Section 32 of the Evidence Act. In the above case, the victim, who received burn injuries on 14.09.1993 was admitted to Civil Hospital. Her statement was recorded by Executive Magistrate and by the Police. The statement recorded by police under Section 161 Cr.P.C. was discarded by the High Court taking the view that it had no evidentiary value. The view of the High Court was not accepted by this Court. In paragraph No. 5, this Court held that the statement of persons recorded under Section 161 can be treated as dying declaration after death. In paragraph No. 5, following has been laid down:-
"5. A bare perusal of the aforesaid provision when read with Section 32 of the 37 Indian Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. The observation of the High Court that the dying declarations Ex.44 and 48 had no evidentiary value, therefore, is erroneous. In this view of the matter, the first dying declaration made to the Magistrate on 14th September 1993 would, in fact, be the First Information Report in this case."
56. The same analogy applies where F.I.R. is recorded by the deceased himself, the statement made therein is to be treated as a dying declaration and is admissible under Section 32(1) of the Evidence Act. Reference be had to the decision of Supreme Court in the matter of Munnu Raja & Anr vs. The State Of Madhya Pradesh, reported in AIR 1976 2199.
57. Thus, this question is answered accordingly and goes against the appellants.
58. Learned counsel for the appellant first emphatically tried to convince us that the evidence on record does not inspire confidence and both the appellants deserve a clear acquittal; at any rate, benefit of doubt, should be given to him. It was only when his aforesaid submission failed to make any impression on us with regard to accused/appellant Raghunath @ Jagna in Cr.A.No.91/2001, that he switched on to the alternative argument namely that the learned Trial Judge gravely erred in convicting the appellant under Section 302 IPC and should have instead convicted the appellant Raghunath @ Jagna under Section 326 38 IPC.
59. This alternate prayer made by the learned counsel for the appellant would be required to be analysed in the context of the prosecution story. As per the prosecution just prior to the incident the accused/appellants had demanded Rs.100/- from the deceased for speculating (Satta), but it was refused and he went for tuition. After couple of hours when he returned from tuition, the accused/appellants stopped him in the midst of his way to home and assaulted him by means of a vegetable knife and stick and caused a lacerated wound on the upper side of the left eye and contusion on upper limb. The manner of the incident as given out in the ocular account by the deceased himself and Brijbhan (PW.2) namely that the deceased was assaulted by the appellant Raghunath with a knife is corroborated by the nature of the injuries received by him by Doctor Dr. P. K. Pathak (PW/7), who conducted the MLC and had found three injuries (i) Lacerated wound on upper side of left eye lid measuring 2 c.m. x ½ c.m. x ½ c.m. (ii) one contusion on upper limb and (iii) pain in lumber region. Initially offence under section 324 I.P.C. was registered against the accused/appellants, and only when injured died the next day, offence u/s 302 I.P.C. was registered.
60. In support of the above contention it was argued on behalf of the accused/appellant Ragunath @ Jagna that the very intention of the accused/appellants was just to threaten the deceased or to teach him a lesson and not more than that, there was no intention to cause death or had knowledge that death would be caused by 39 means of said knife, as the weapon used in the incident was a vegetable knife, also there was just a single blow of it, no repeated blows were inflicted, also he had not taken any undue advantage or has not acted in a cruel and unusual manner and further looking to the proximity between the demand of money, its refusal by the deceased and occurrence of the incident, it could be said that it occurred in a heat of passion, which looking to the rural background of the accused/appellant cannot be said to be uncharacteristic and from the aforesaid act only the ingredients of section 326 I.P.C. i.e. (1) Voluntarily causing a hurt; (2) Hurt caused is grievous in nature; and (3) It was caused by dangerous weapons or means, are attracted and offence u/s 302 I.P.C. is not made out.
61. In our opinion, bearing in mind the manner in which the incident took place; the absence of previous enmity between the appellants and the deceased; the weapon of assault which was a vegetable knife; the nature of injuries sustained by the deceased, the Trial Court was not justified holding the appellant Raghunath @ Jagna guilty of the offence under Section 302 IPC, instead he would be guilty under Section 326 IPC for the grievous injuries inflicted by him to the deceased. The learned Trial Judge though had rightly accepted the involvement of the appellants in the instant crime and had rightly held that the prosecution had brought home the guilt of the appellant Raghunath @ Jagna beyond reasonable doubt, however, in our opinion, the learned trial Judge erred in convicting the appellant Raghunath @ Jagna under 40 Section 302 IPC. Accordingly the appellant Raghunath @ Jagna is convicted under section 326 IPC.
62. The question which arises is as to what should be the quantum of sentence which should be awarded to appellant Raghunath under Section 326 IPC ? We have given our anxious consideration to this question. In our opinion, looking to the totality of circumstances, period of sentence already under gone i.e. 2 years and 8 months approx. would meet the ends of justice.
63. In the result, the appeal so far as appellant Bablu @ Babulal in Criminal Appeal No. 57/2001 is concerned, is allowed and he is acquitted from the charges under section 302/34 I.P.C. and his sentence for life imprisonment is set aside. The amount of fine, if deposited, be refunded to him. He is on bail, his bail bonds are discharged.
64. In so far as appellant Raghunath @ Jagna in Criminal Appeal No.91/2001 is concerned, it is partly allowed, we set aside his conviction u/s 302/34 I.P.C. for life imprisonment, instead we convict him u/s 326 IPC. His sentence of life imprisonment under section 302 of IPC is hereby set aside and he is sentenced to undergo the period already undergone under section 326 IPC. The amount of fine, if deposited, be refunded to him. He is on bail, his bail bonds are discharged.
65. The Registry is directed to send a copy of this judgment immediately alongwith the record to the learned Trial Court, for information and necessary compliance.
4166. A copy of this judgment shall be placed in the record of connected Criminal Appeal No.91/2001 (Raghunath alias Jagna Vs. State of M.P.).
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
25/08/2022 25/08/2022
Pawar/-
ASHISH
PAWAR
2022.08.26
11:53:01
+05'30'