Karnataka High Court
Sri Siddanaika vs State By Mandi Police Station on 9 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 09TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL No. 1153/2021
BETWEEN:
SRI SIDDANAIKA,
S/O LATE DODDASWAMYNAIKA,
AGED ABOUT 54 YEARS,
R/AT HOSUR, GUNDLUPET TALUK.
... APPELLANT
(BY SRI SAMMITH S., ADVOCATE)
AND:
STATE BY MANDI POLICE STATION
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BANGALORE - 560 001.
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL.SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION
DATED 03.09.2005 AND SENTENCE DATED 05.09.2005 PASSED BY
THE III ADDITIONAL SESSIONS JUDGE, MYSORE IN S.C.NO.38/2003,
CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 OF IPC. THE ACCUSED IS
SENTENCED TO UNDERGO R.I FOR LIFE AND TO PAY FINE OF
RS.5000/- WITH DEFAULT SENTENCE OF S.I FOR THREE MONTHS.
APPELLANT PRAYS THAT HE BE ACQUITTED.
THIS APPEAL COMING ON FOR HEARING, THIS DAY,
B.VEERAPPA J, DELIVERED THE FOLLOWING:-
2
JUDGMENT
The accused, an Under Trial Prisoner, Central Jail, Mysuru has filed the present criminal appeal against the impugned judgment of conviction dated 03.09.2005 and order of sentence dated 05.09.2005 made in S.C.No.38/2003 on the file of the III Additional Sessions Judge, Mysuru, convicting the accused under the provisions of section 302 of IPC for rigorous imprisonment for life with fine of Rs.5,000/- with default clause.
2. The complaint was lodged by PW.1, who is the Jail Superintendent. PW.4 (C.W.11) was the Jailer C.W.14 was the Head Warder of Central Jail, Mysore. Accused Siddanaika and deceased Chinnaraju were the Under Trial Prisoners during the year 2002. On 30-7-2002, accused and deceased Chinnaraju were in Barrack No.4 along with 39-40 other Under Trial Prisoners. On the said date, during night, reformed prisoners PW.11 (C.W.2) Shivamurthy and C.W.3-Thirtheshwara were patrolling the barracks in the prison. C.W.11 (PW.4)- Krishnamurthy was the Jailer and C.W.14-Nanjaiah was the Head Warder on duty. At about 12.00 mid night, accused went to the 3 toilet, on his way back noticed Chinnaraju sleeping across his way and annoyed by the same, hit with Iron Bucket - MO.1 on the head of Chinnaraju who was asleep. On seeing the same, C.W.2-Shivamurthy who patrolling the barrack, called his companion Watcher C.W.3-Thirtheshwara and they together called Head Warder-C.W.14-Nanjaiah. On receiving information, Jailer-P.W.4 rushed to barrack No.4, secured key of said barrack from the staff at the main gate and informed P.W.1- Superintendent and Assistant Superintendent about the incident of assault in barrack No.4. On receiving information, P.W.1- Superintendent, Assistant Superintendent and their staff rushed to barrack No.4, entered the barrack by opening the gate and noticed Chinnaraju lying unconscious with bleeding head injury and 3-4 Under Trial Prisoners holding Under Trial Prisoner Siddanaika / accused. P.W.1-Superintendent immediately sent Chinnaraju to K.R. Hospital with escort of prison staff and instructed Assistant Superintendent to lodge complaint against Under Trial Prisoner - Siddanaika.
4
3. Accordingly, PW.13 / Station House Officer, Mandi Police Station registered complaint-Ex.P1 on 31-7-2002 against the accused for offence punishable under section 307 I.P.C. and submitted the same to the Court along with FIR-Ex.P22. In the meantime, as per the advice of the Medical Officer, K R Hospital, Mysore, P.W.1-Superintendent sent injured Under Trial Prisoner Chinnaraju to NIMHANS, Bengaluru with escort of Jailer Sunder and Prison staff. On the same day, i.e. on 31-7-2002, P.W.10- PSI, Mandi P.S. took up investigation and after investigation, filed the charge sheet against the accused. By that time Chinnaraju died, thereby the original provision under section 307 IPC was converted into section 302 IPC.
4. On the matter being committed to the learned Sessions Judge, learned Sessions Judge secured the presence of the accused and framed the charge, explained to him in the language known to him, who pleaded not guilty and claimed to be tried. In order to prove the case of the prosecution, the prosecution examined P.Ws.1 to 17 and got marked material documents Ex.P1 to Ex.P27 and material objects M.Os.1 to 3. 5 After the completion of the evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under Section 313 Cr.P.C. Accused denied the incriminatory evidence adduced by the prosecution witnesses and not adduced any evidence.
5. Based on the aforesaid pleadings, learned Sessions Judge framed two points for consideration, which read as under:
1) Whether prosecution proves homicidal death of U.T.P. Chinnaraju beyond reasonable doubt?
2) Whether prosecution proves that on 30-7-
2002 at about 12.00 mid night, accused U.T.P. with intention to cause death or head injury sufficient to cause death in the ordinary course hit Iron Bucket to the head of U.T.P. Chinnaraju who was asleep and caused the death?
6. Considering both the oral and documentary evidence on record, learned Sessions Judge answered both the points in the affirmative, holding that the prosecution has proved beyond 6 reasonable doubt that Under Trial Prisoner Chinnaraju's death is homicidal death. Further held that, on 30-7-2002, at about 12.00 midnight, accused - Under Trial Prisoner, with the intention to cause death, hit with iron bucket - MO.1 to the head of deceased Under Trial Prisoner Chinnaraju, thereby committed an offence punishable under section 302 of IPC and accordingly, learned Sessions Judge, by the impugned judgment of conviction and order of sentence, convicted the accused to undergo rigorous imprisonment for life with fine of Rs.5,000/-, with default sentence of simple imprisonment for three months. Hence, the present appeal is filed by the accused.
7. We have heard learned counsel for the parties to the lis.
8. Sri.Sammith.S, learned counsel for accused, contended with vehemence that impugned judgment of conviction and order of sentence convicting the accused to undergo rigorous imprisonment for life with fine for the offence under section 302 IPC is erroneous, contrary to the material on record and cannot be sustained. He would further contend that 7 the learned Sessions Judge has not appreciated the contradictions in the evidence of the prosecution witnesses, especially the non-consideration of two main material witnesses PW.2 and PW.3 who stated on oath that there was a quarrel between the accused and deceased and thereby the unfortunate incident occurred and the same has not been considered by the learned Sessions Judge. He would further contend that the learned Sessions Judge proceeded to consider the statement of PW.11 - Shivamurthy where he has deposed that on 30.07.2002, at about 12.00 midnight, all Under Trial Prisoners were sleeping and accused who woke up, went to toilet and on his way back noticed Chinnaraju sleeping across his way and annoyed by the same, hit with Iron Bucket - MO.1 to the head of Chinnaraju. Immediately, he called his companion Watcher C.W.3-Thirtheshwara and they together called Head Warder- C.W.14-Nanjaiah. Trial Court has not considered the fact that Shivamurthy - PW.11 was 30 feet away when the incident took place, which is admitted by himself, which creates suspicion about the credibility of evidence of PW.11 and there are full 8 contradictions and omissions and the same cannot be relied upon.
9. He would further contend that the Expert Witness PW.17 was considered as clinching witness and Trial Court proceeded to convict the accused erroneously despite lack of any other clinching evidence and lack of eyewitness. He would further contend that the prosecution has not produced any material, oral and documentary evidence, to prove the motive. In the absence of any material and in the absence of eyewitness to the incident, as admitted by PW.2, 3 and 11, the unfortunate incident had occurred due to the sudden quarrel between the accused and deceased, thereby it is a clear case falls under the provisions of exception (4) to section 300 of IPC and thereby, section 304 Part II of IPC attracts and not section 302 of IPC. Therefore, he sought to allow the appeal.
10. Per contra, Sri.Vijayakumar Majage, learned Addl. SPP, while justifying the impugned judgment of conviction and order of sentence passed by the Trial Court, contended that when the unfortunate incident occurred in the midnight at about 9 12.00 a.m. on 30.07.2002, in barrack No.4, not only accused and deceased Chinnaraju, there were 39-40 other Under Trial Prisoners. When the accused on his way noticed Chinnaraju sleeping across his way, annoyed by the same, hit on his head with the iron bucket, thereby it is a clear case of murder, attracting the provisions of section 302 IPC. Further evidence of PW.2, PW.3, PW.11 and PW.17 clearly depicts that accused had developed animosity against deceased, thereby with an intention to murder him hit on his head with iron bucket MO.1. Therefore, the Trial Court considering both the oral and documentary evidence, was justified in convicting the accused for the offences punishable under the provisions of section 302 of IPC. Therefore, he sought to dismiss the appeal.
11. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration, in the present appeal, is:-
"Whether the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court 10 convicting the accused for imprisonment of life under the provisions of section 302 of IPC, and whether he has made out a case to modify the impugned judgment of conviction and order of sentence passed by the Trial Court, in the peculiar facts and circumstances of the present case?"
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully.
13. It is an undisputed fact that the unfortunate incident occurred on 30.07.2002 at about 12.00 midnight at barrack No.4 in Central Prison, Mysuru where the deceased, accused and other 39-40 Under Trial Prisoners were stationed. The incident happened within the jail prison and it is not in dispute that there was a quarrel between the accused and the deceased, as spoken to by PW.1, PW.2, PW.3 and PW.11, and unfortunately, the incident occurred and thereby the evidence of the Doctor PW.17 11 and postmortem report Ex.P24 clearly depicts that it was homicidal death of the deceased in the prison.
14. This Court being the appellate court, in order to re-appreciate the entire evidence on record, it is relevant to consider the evidence of prosecution witnesses and material documents relied upon:-
a) PW.1 - M.C.Vishwanathaiah, Superintendent, Central Jail, Mysuru, who was the complainant, deposed that on 30.07.2002, he was at his residence within the premises of the Central Jail. At around midnight 12.10 a.m., the person who was appointed as a Sentry namely Kempegowda informed him that the accused Siddanaika was beating one Chinnaraju, another prisoner in the same barrack i.e., barrack No.4. Along with the Jailor and the Assistant Superintendent, he rushed to the spot and noticed that Chinnaraju was lying unconscious and there was a head injury and 12 he was bleeding. On enquiry, the Watchman Shivamurthy and Theertheshwara stated that when the accused Siddanaika got up and wanted to go to the toilet, he saw that Chinnaraju was sleeping on his way and took the iron bucket and hit Chinnaraju on the head. Chinnaraju was immediately sent to K.R.Hospital and a case was registered under section 307 IPC against the accused.
Thereafter Chinnaraju was shifted to NIMHANS, Bengaluru and after two days, he was admitted to Victoria Hospital, Bengaluru, where he died on 02.08.2002. He supported the case of the prosecution.
b) PW.2- Lakshmana, another Under Trial Prisoner, who deposed that he was a prisoner under trial for a complaint registered by the Forest Department for illegal acquisition of sandalwood logs and oil and he was kept in 13 barrack No.4 along with the accused, the deceased and few other prisoners. On the unfortunate midnight, there was some noise (galata) and he woke up immediately and saw the accused holding the iron bucket and Chinnaraju was lying unconsciously and was bleeding. The pillow he had slept on was full of blood. He further deposes that he did not know how Chinnaraju was injured and he has not seen the accused hit Chinnaraju with the iron bucket.
In the cross-examination, he admitted that he was in custody about 15 - 20 days prior to the incident.
c) PW.3 - Suresh - another Under Trial Prisoner deposes that he was under trial for a complaint registered by Kuvempunagar Police, Mysuru for torture and demand for dowry and was kept in barrack no.4 along with the accused and the 14 deceased and a few other prisoners.
Chinnaraju was injured, around midnight, he heard some noises and woke up. Chinnaraju was lying unconsciously in the same place where he was sleeping. The pillow and the bed were soaked in his blood which had bled from his head. He did not know who hit the injured. In the cross-examination, he has denied the police statement according to which he had stated that, on the day of the incident, he had not slept and was just lying and thinking about something; around midnight, the accused got up and saw that Chinnaraju was sleeping across and went to the toilet angrily, even after he came out, he saw that Chinnaraju was sleeping in the same position and the accused warned him and took the iron bucket and hit Chinnaraju on the head and he started bleeding. He denied the further statement made before the police.
15
d) PW.11 - Shivamurthy, Prisoner, Central Jail, Mysore, who deposed that, he was a prisoner serving his punishment and was posted for night duty as a guard. Along with him, Theertheshwara, another prisoner, was also posted as a guard. In barrack No.4, there were 40 prisoners including the accused and the deceased Chinnaraju. In the month of July 2002, one night around 12.30 a.m., while Theertheshwara and himself were guarding, some noise (quarrel) happened in barrack No.4. Before the quarrel, all prisoners in the room were sleeping. The accused got up and went to use the toilet. On his way back from the toilet, the accused hit the sleeping Chinnaraju on his head with the iron bucket - MO.1. He did not know why the accused hit Chinnaraju's head.
16
In the cross-examination, he has deposed that when he was guarding near barrack No.4, he was the one who witnessed the incident first and called Theertheshwar. It may be around 12.30 midnight. Later, he shouted and called for Head Warden Nanjappa. The accused hit Chinnaraju's head with the bucket only once. The bucket was kept to use to go to toilet. The bucket is an old one. The bucket is about 1 - 1.5 feet tall. All the members in barrack No.4 were sleeping.
Barrack No.4 is about 30 feet far from the place he was. He further denied that the police did not come to the place of crime nor conducted panchanama. He did not know what is written in the panchanama and he has not read it and it is not true to suggest that he has come under the influence of the jail authorities and is lying.
17
e) PW.17 - Dr.K.W.D.Ravichandar, Retired
Professor and Head of Forensic Science
Department, Mysore, who deposed that, in the year 2002, when he was working as the Head of the Forensic Science Department in the Medical Mahavidyalaya, on receiving the request sent by the Madivala Sub-Divisional Officer on 03.08.2002, he examined the dead body of Chinnaraju, aged 43 years, from 3.20 p.m. to 4.20 p.m. in the afternoon at Victoria Hospital's mortuary. He has noted down the marks found on the dead body during the examination. He further deposed that, above the right ear, there is a 'U' shaped suture of 21 cms. On removing the suture, the muscle beneath the skin was brown (blood clot) and was torn. The skull below the muscles was cracked here and there. He further deposed that he has explained in detail about the injury suffered by the brain. The right part of the 18 skull and the portion attached to it, which is the front part of the skull, was injured sufficiently and that portion of the bone was broken at several parts. He further deposed that he has sent his opinion under Ex.P25and he has explained the details of Chinnaraju's dead body in Ex.P24.
In the cross-examination, he has denied that it is not true that the postmortem report submitted at Ex.P24 is not the report of Chinnaraju's dead body.
(f) The other witnesses are police witnesses and the officers of the jail. They have supported the case of the prosecution.
15. A careful perusal of complaint at Ex.P1 dated 30/31.07.2002 by PW.1 - Superintendent, Central Jail, Mysuru depicts that the accused UTP No.16231, the deceased UTP No.12432 and other 37 Under Trial Prisoners were in barrack No.4. According to eyewitnesses, when the accused went to 19 toilet, the deceased Chinnaraju was sleeping across on the way of the accused, thereby there was a quarrel in barrack No.4 and after receiving information, he lodged the complaint against the accused who hit the deceased Chinnaraju with MO.1 - iron bucket. The jurisdictional police, at the inception, registered the case under the provisions of section 307 IPC, subsequently after the death of the deceased in NIMHANS, Bengaluru, the same was converted into section 302 IPC.
16. On perusal of both the oral and documentary evidence on record clearly depicts that the deceased and the accused were Under Trial Prisoners. On the date when the unfortunate incident occurred, at about 12.00 a.m. midnight, the accused went to toilet, on his way back, he saw Chinnaraju sleeping across his way and according to the other inmates of the jail, there was quarrel between the accused and the deceased and thereby the accused hit the deceased with iron bucket -MO.1 to the head of Chinnaraju who was sleeping. Admittedly, it is not the case of the prosecution that there was 20 any motive for the accused to cause death of deceased Chinnaraju. Both were Under Trial Prisoners.
17. As stated by PW.2 - Sri.Lakshmana, both in examination-in-chief and cross-examination, that about 12.00 a.m. in midnight, there was a quarrel and therefore, he woke up. By that time, he noticed the accused holding the iron bucket and Chinnaraju was lying unconsciously and blood was oozing from his head and how the injury was caused to the deceased is not known. He denied in his cross-examination the statement made by him as per Ex.P13 is false. PW.3 - Sri.Suresh who also stated on par with PW.2 that at about 12.00 a.m., when he was sleeping, there was a quarrel, thereby he woke up and saw the deceased in unconscious position and blood was oozing from his head and he was not aware who hit Chinnaraju and how he was injured. He further deposes that on the date, the deceased Chinnaraju and himself were sleeping together and he further denied the statement made before the police as per Ex.P14. PW.4 - Sri.V.Krishnamurthy also deposed that there was some quarrel in barrack No.4. PW.5 - Sri.M.H.Rajashekara, Chief 21 Watcher, Central Prison, Mysuru, who came to know that there was a quarrel in barrack No.4 and the accused hit the head of the deceased Chinnaraju. PW.17 - Dr.K.W.D.Ravichander who examined the body of the deceased and issued postmortem report Ex.P24, who stated on oath the external injuries as under:-
"External injuries
1. Inverted 'U' shaped surgically sutured wound of 21 cm is present over right temporo parietal scalp over the upper margins of temporalis muscle. On removal of the sutures the underlying temporalis muscle shows contused laceration and squamo temporal bone shows fessunid fractures."
PW.17 has opined that the death was due to 'COMA' as a result of head injury, by hard and blunt force impact to the right side of the head, during an assault.
18. The above material clearly depicts that there was a quarrel in barrack No.4 between the accused and the deceased. When the deceased was sleeping across the way of the accused, and the accused warned the deceased about it, but the deceased 22 refused to clear the way thereby the accused after coming from the toilet, hit on the head of the deceased with MO.1 - iron bucket, thereby the unfortunate incident has occurred due to sudden provocation between the parties, as spoken to by PWs.1, 2, 3, 11 and other witnesses, but the same has not been considered by the learned Sessions Judge. Though learned Sessions Judge has specifically recorded a finding at para 14 that, "It may be that accused had no intention to kill Chinnaraju. But it cannot be said that accused had no knowledge that he may cause death by hitting Iron Bucket forcibly to the head of sleeping Chinnaraju. At any rate, sudden provocation of accused without any justification for the same does not come under Exceptions 1 to 5 to murder defined under section 300 IPC.", the material on record clearly depicts that this is a clear case falls under Exception 1 to section 300 IPC, which reads as under:-
"Exception 1: When culpable homicide is not murder.
Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident."23
A careful reading of the said provision makes it clear that the culpable homicide is not murder when an offender while deprived of the power of self-control, by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.
19. In the present case, as already stated supra, the accused suddenly attacked the deceased, when deceased had not cleared the way to go to toilet and hit the deceased with iron bucket - MO.1, thereby caused head injury, resulting in culpable homicide not amounting to murder. Therefore, conviction of the accused under the provisions of section 302 IPC has to be modified and altered into section 304 Part I IPC. The said aspect of the matter has not at all been considered by the learned Sessions Judge.
20. It is also not in dispute that the evidence on record clearly establishes that the deceased, accused and other 39-40 prisoners were stationed as Under Trial Prisoners in barrack No.4. The material on record also depicts that there was no 24 enmity between the accused and the deceased, otherwise, the jail authorities would not have stationed the accused and the deceased in one barrack. None of the witnesses examined on behalf of the prosecution have whispered anything about the motive or enmity between the accused and the deceased. As admitted by PW.2, 3 and 11, the accused, the deceased and another Under Trial Prisoner PW.3 - Suresh were sleeping adjacently. Taking into consideration the material on record, it is a fit case to convert into section 304 Part I of IPC to meet the ends of justice and not under section 302 IPC.
21. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of NANAK RAM vs. STATE OF RAJASTHAN reported in 2014 Criminal Law Journal 1843 at para Nos.17, 18 and 19.
17. A fight suddenly takes place for which both parties are more or less to be blamed and it is a combat whether with or without weapons. It may be that one of them starts it, but if the other had not aggravated it by his own conduct, it would not have taken the serious turn it did. Heat of passion requires that there must be no time for the passions to cool down and in this case 25 the parties have worked themselves into a fury on account of the verbal altercation in the beginning. Out of the 9 injuries, only injury No.1 was held to be of grievous nature, which was sufficient in the ordinary course of nature to cause death of the deceased. The assaults were made at random. Even the previous altercations were verbal and not physical. The earlier disputes over land do not appear to have assumed the characteristics of physical combat. This goes to show that in the heat of passion upon a sudden quarrel the accused persons had caused injuries on the deceased. That being so the Exception 4 to Section 300, IPC is applicable. The fact situation bears great similarity to that in Ghapoo Yadav & Ors. v. State of M.P.(2003) 2 SCC 528: (AIR 2003 SC 1620).
18. Looking at the nature of injuries sustained by the deceased and the circumstances as enumerated above the conclusion is irresistible that the death was caused by the acts of the accused done with the intention of causing such bodily injury as is likely to cause death and therefore the offence would squarely come within the first part of Section 304, IPC and the appellants would be liable to be convicted for the said offence. The conviction of the appellants/accused under Section 304, Part II read with Section 149, IPC by the High Court is liable to be set aside.
26
19. We are of the considered view that imposition of 7 years rigorous imprisonment on each of the appellants for the conviction under Section 304, Part I, IPC would meet the ends of justice. We sustain the other conviction and sentences imposed on the appellants. We are also of the view that the appellants are not entitled for release on probation."
22. On re-appreciation of the entire material on record which clearly depicts that on 30.07.2002 at about 12.00 midnight, an unfortunate incident occurred in barrack No.4, Central Prison, Mysuru, when accused, deceased and other Under Trial Prisoners were sleeping. When accused went to the toilet, on the way, he noticed that the deceased was sleeping across on his way, thereby there was a quarrel between the accused and the deceased and due to sudden provocation, provoked by the deceased, the accused hit on the head of the deceased with Iron bucket - MO.1 and the same was due to sudden provocation where the accused lost self-control. So it is a fit case falling under section 304 Part I of IPC. 27
23. For the reasons stated above, the point raised in the present appeal has to be answered partly in affirmative, holding that the accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court, convicting the accused for rigorous imprisonment of life under the provisions of section 302 of IPC and has made out a case to modify into section 304 Part I of IPC.
24. In view of the above, we pass the following:-
ORDER
i) The criminal appeal filed by the appellant-Siddanaika is allowed-in-part.
ii) The impugned judgment and order of conviction dated 03.09.2005 and order of sentence dated 05.09.2005 passed by the III Additional Sessions Judge, Mysore in S.C.No.38 of 2003 in convicting the appellant/accused for the offence punishable under Section 302 of IPC and sentencing him to undergo 28 rigorous imprisonment for life with fine of Rs.5,000/-
with default sentence of simple imprisonment for three months is modified.
iii) The appellant is convicted under the provisions of Section 304 Part I of IPC and sentenced to undergo rigorous imprisonment for ten years with fine amount of Rs.10,000/- (Rupees Ten Thousand only), in default of payment of fine, he shall undergo imprisonment for a period of two years.
iv) The appellant is entitled for a set off as contemplated under Section 428 of Cr.P.C.
v) As we have modified the impugned judgment of conviction and order of sentence stated supra and since the accused is already in judicial custody for more than 21 years, which is more than the punishment imposed by us, the Jail Authorities are directed to release the accused forthwith on deposit 29 of fine amount, if he is not required in any other case.
Sd/-
JUDGE Sd/-
JUDGE Bss