Allahabad High Court
Gulli @ Nand Kishore vs State on 20 February, 2020
Bench: Pritinker Diwaker, Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 12.02.2020 Delivered on 20.02.2020 JAIL APPEAL No.6361 of 2008 Gulli @ Nand Kishore .......... Appellant Vs State of Uttar Pradesh .......... Respondent ____________________________________________________________ For Appellant : Sri Pradeep Kumar Mishra, Amicus For Respondent/State : Sri J.K. Upadhyaya, AGA _____________________________________________________________________ AND CRIMINAL APPEAL No.950 of 2005 1. Babu Lal 2. Kachere @ Ashok 3. Matole @ Santosh .......... Appellants Vs State of Uttar Pradesh .......... Respondents ________________________________________________________ For Appellants : Sri Vishnukant Tiwari For Respondent/State : Sri J.K. Upadhyaya, AGA ________________________________________________________ Hon'ble Pritinker Diwaker, J.
Hon'ble Shekhar Kumar Yadav, J.
Per: Pritinker Diwaker, J.
1. As these two appeals arise out of a common judgment and order dated 16.02.2005 passed by Additional Sessions Judge/Fast Track Court No.11, Jalaun at Orai, in Sessions Trial No.111 of 2003 (State Vs. Gulli @ Nand Kishore and others), they are being disposed of by this common order.
2. By the impugned judgment, the Court below has convicted appellant Gulli @ Nand Kishore under Sections 323/34, 324, 325/34 and 302 of IPC and sentenced him to undergo three months imprisonment, with a fine of Rs.500/-, in default of payment of fine, 10 days simple imprisonment; one year imprisonment, with a fine of Rs.1,000/-, in default thereof, two months simple imprisonment; two years rigorous imprisonment, with a fine of Rs.1,500/-, in default thereof, four months additional simple imprisonment; and life imprisonment, with a fine of Rs. 10,000/- respectively.
The Court below has further convicted appellant Babu Lal, Khachere @ Ashok and Mantole @ Santosh under Sections 323, 325, 324/34 and 302/34 and sentenced them to undergo three months imprisonment, with a fine of Rs.500/- each, in default of payment of fine, 10 days simple imprisonment; two years imprisonment with a fine of Rs.1,500/- each, in default thereof, four months simple imprisonment; one year imprisonment, with a fine of Rs.1,000/-, in default thereof, two months additional simple imprisonment; and life imprisonment with a fine of Rs. 10,000/- respectively with a direction that all the sentences to run concurrently.
3. As per prosecution case, Kiran Devi W/o of Ratan Kumar and sister-in-law of deceased Prem Narayan was having affair with the accused Gulli and the said relation was not liked by the deceased and he had shown his anger. Accused Gulli felt insulted because of this objection and on 18.03.2003, when PW-4 Durjan was returning to his house, at about 10.00 p.m, he was apprehended by the accused persons and was also subjected to abusive language. Seeing this, one Siya Sharan (not examined) informed PW-1 Surendra and PW-3 Prem Narayan about the said incident and it is said that Prem Narayan alongwith his wife Laxmi had gone to save his father. When Prem Narayan reached to the place of occurrence, he saw accused persons quarreling with his father. Prem Narayan intervened in the matter and it is said that accused Gulli caused axe injuries to him. Further case of the prosecution is that when PW-4 Durjan and PW-5 Laxmi also intervened in the matter, they were beaten by other accused persons by club and axe. According to prosecution case, number of villagers gathered there and saw the occurrence. On account of beating given to Prem Narayan by accused Gulli, he died at the spot itself.
4. On the basis of written report, Ex.Ka.1, lodged by PW-1 Surendra on 19.03.2003, FIR, Ex.Ka.16, was registered against all the four accused persons, under Sections 302, 324, 323, 504 and 506 of IPC.
5. Inquest on the dead body was conducted on 19.03.2003, vide Ex.Ka.2, and the body was sent for Postmortem, which was conducted on the same day vide Ex.Ka.6 by PW-6 Dr. Maniram. Autopsy Surgeon has noticed following four injuries on the body of the deceased: -
(i) Wound is 9 cm. above right ear pinna. Skull bone broken in two pieces. Brain Membranes - ruptured and cerebrum exposed. Incised wound of 11 cm X 2.5 cm present on right side of skull. is Horizontal.
(ii) Incised wound of 9 cm X 5 cm present on anterior end left side of neck. Wound is 4 cm deep. Trachea, Internal jugular vein, common and carotid artery and esophagus are cut. External jugular vein, sternohyoid muscle, Sterno eleidce mastoid muscle is also cut. Wound is transverse and is 3.5 cm above to clavicle.
(iii) Incised wound of 5 cm X 1.5 c.m present on right side of chest 10 cm below right nipple. Wound is oblique and is 2.5 cm deep.
(iv) Incised wound of 6 cm X 3 cm present on right hand metacarpal below thinner eminauce is broken and wound is passed from dorsal to palmar side.
Cause of Death - Homicidal death caused due to hemorrhage by ante mortem injuries.
6. Injured Durjan (PW-4) and Laxmi (PW-5) were medically examined, vide Ex.Ka.4 and Ex.Ka.5, by PW-6 Dr. Maniram who found following injuries on them.
Injuries on Durjan (PW-4):
(i) Lacerated wound of 4 cm X 0.8 cm present on left side of skull 11 cm above to left ear pinna. Wound is deep up to bone. Fresh bleeding seen on clearing the wound. Patient is conscious.
(2) Swelling seen on right arm in mid portion. Injury kept under observation and Advised X-Ray right arm.
(3) 3 cm X 2 cm swelling seen on lift scapular region of back.
(4) Abrasion of 1.5 cm X 0.5 cm present on dorsal part of left arm 5 cm below elbow joint. Colour of abrasion is red.
Injuries on Laxmi (PW-5):
(i) Incised wound of 7 cm X 4 cm present on dorsal part of right hand on middle part, wound is extending from 1 cm below writs joint up to metacarpal pharyngeal join. Tendon Fifth Metacarpal bone found to be cut and fracture. Fresh bleeding seen on vertical side. Wound is extending 2 cm below base of ring finger.
(2) Incised wound of 5 cm. X 1 cm present on right side of skull 12 cm above to right ear pinna. Bleeding seen on clearing the wound. Wound is deep upto bone.
7. The trial Judge has framed charge against all the accused-persons under Sections 504, 506(2), 323/34, 324, 325, 302/34 of IPC.
8. So as to hold accused persons guilty, the prosecution has examined nine witnesses. Statements of accused persons were also recorded under Section 313 of Cr.P.C in which, they pleaded their innocence and false implication.
9. By the impugned judgment, the trial Judge has convicted and sentenced the appellants as mentioned in para 1 of this judgment. Hence this appeal.
10. Sri Pradeep Kumar Mishra, learned counsel for the appellant in Criminal Appeal No. 6361 of 2008 submits:-
(i) that the act of accused appellant Gulli would not fall within the definition of murder and it would be culpable homicide not amounting to murder. He submits that quarrel was going on between Durjan and the accused persons and when deceased Prem Narayan reached to the place of occurrence, he seems to have been subjected to injuries unfortunately, resulting his death.
(ii) that the offence has been committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and, therefore, it would fall under Section 304 part-I of IPC.
(iii) that accused appellant Gulli is in jail since last 17 years and, therefore, his conviction be altered into Section 304 part-I of IPC and sentence be reduced to the period already undergone by him. It has been argued that appellant Gulli is a poor person; he is contesting this appeal through the legal aid and, therefore, he can pay very reasonable compensation to the deceased family.
11. In respect of accused-appellants, namely, Babu Lal, Khachere and Mantole in Criminal Appeal No. 950 of 2005, it has been argued by Shri Vishnu Kant Tiwari that:-
(i) the accused-appellants have not caused any injury to deceased Prem Narayan and, therefore, they cannot be convicted with the aid of Section 34 of IPC for committing the murder of the deceased.
(ii) except accused Gulli, other accused persons can, at best, be convicted under Section 325 of IPC for which, they have already remained in jail for about 4 months. It has been argued that these three appellants are also willing to pay reasonable compensation to injured Durjan.
12. On the other hand, supporting the impugned judgment and order, it has been argued by the State Counsel that the conviction of the appellants is in accordance with law. He submits that apart from accused Gulli, the other accused persons are also liable to be convicted with the aid of Section 34 of IPC and, therefore, their conviction under Section 302/34 of IPC is in accordance with law.
13. We have heard learned counsel for the parties and perused the record.
14. PW-1 Surendra, is a brother of the deceased and is also a son of PW-4 Durjan. He has stated that the deceased was residing at Orai, was working as a labour and at the eve of Holi, he came to his village. His sister-in- law Kiran Devi W/o Ratan Kumar was having relation with accused Gulli, which was objected by deceased Prem Narayan, as a result of which accused Gulli was not having good relation with the deceased. On the date of occurrence, when his father was returning to his village, after celebrating the Holi festival, at about 10.00 PM, near one culvert, accused persons apprehended him and started abusing him. This incident was witnessed by Siya Sharan (not examined) who immediately informed the same to him (this witness) and also to Prem Narayan. In turn, he, Prem Narayan and Laxmi had gone to the place of occurrence and there, they saw the accused persons carrying weapons with them and were quarreling with Durjan. When deceased Prem Narayan intervened in the matter, accused Gulli caused axe injury on his head and likewise, he also caused injury to PW-5 Laxmi and to Durjan. He states that hearing his cries, other villagers also gathered their and then the accused persons fled away from the spot. He states that deceased succumbed to his injuries at the place of occurrence itself. In his cross-examination but for minor contradiction, this witness remained firm and has reiterated as to the manner in which Prem Narayan was done to death by accused Gulli and Durjan and Smt. Laxmi were subjected to injuries.
15. PW-2 Hari Babu is a witness of inquest.
16. PW-4 Durjan is a father of the deceased Prem Narayan and PW-1 Surendra. He has stated that accused Gulli was having relation with his daughter-in-law Kiran, which was not liked by the deceased who had asked all the family members not to allow appellant Gulli to sit with the family members and on account of this, accused Gulli was not having good relation with the deceased. At the eve of Holi, when he was returning to his village, at about 10.00 p.m. he was apprehended by the accused persons and at that time, accused Gulli was having axe, whereas other accused persons were having club with them. He was being abused by the accused persons and while the quarrel was going on, deceased Prem Narayan, PW-1 Surendra and PW-5 Smt. Laxmi (PW-5) reached to the place of occurrence and then accused appellant Gulli gave a blow of axe on the head of the deceased, resulting his death, whereas he (Durjan) and PW-5 Laxmi were also beaten by them.
17. PW-5 Smt. Laxmi, is the wife of the deceased, has made almost similar statement as has been made by PW-4 Durjan and PW-1 Surendra. She too has stated that her sister-in law (Jethani) - Kiran was having relation with appellant Gulli and her husband came to know about the same who raised his objection. On the date of occurrence, accused persons apprehended her father-in law and when she along with the deceased and PW-1 Surendra had gone to intervene in the matter, her husband was done to death by accused appellant Gulli, who caused injures on the head of the deceased. She states that she was also beaten by Gulli, whereas her father-in-law PW-4 Durjan was beaten by other accused persons.
18. PW-6 Dr. Maniram, medically examined PW-4 Durjan, vide Ex.Ka.4, and noticed four injuries on his body. He further examined PW-5 Laxmi, vide Ex.Ka.5, and noticed two injuries, including a fracture of a metacarpal and damage to tandom. He also did postmortem of the deceased, vide Ex.Ka.6, and noticed four injuries.
19. PW-7 Dr. T.D. Gupta did X-Ray of PW-5 Smt. Laxmi, vide Ex.Ka.7, and PW-4 Durjan, vide Ex.Ka.8. He noticed fracture of forth and fifth metacarpal of right arm of Durjan.
20. PW-8 Jai Narain Verma, is the Investigating Officer, has duly supported the prosecution case. PW-9 Jagat Pal Singh assisted during investigation.
21. Close scrutiny of the evidence makes it clear that on 18.03.2003 when PW-4 Durjan was returning to his village, on the way at about 10.00 p.m., he was apprehended by the accused persons. There was exchange of words between them and information of this quarrel was given to deceased Prem Narayan, PW-1 Surendra and PW-5 Smt. Laxmi who immediately reached to the place of occurrence and while they were trying to intervene in the matter, they were also assaulted by the accused persons. As per evidence, it is the accused appellant Gulli who caused axe injuries on the head of the deceased, resulting his death. There is no evidence that except accused Gulli any other accused persons caused injuries to deceased Prem Narayan. Evidence also reflects that accused Babu Lal, Kachere @ Ashok, Mantole @ Santosh caused injuries to PW-4 Durjan, whereas injury to PW-5 Smt. Laxmi was caused by Gulli.
22. Considering all these aspects of the case, complicity of the accused persons in commission of the offence has been duly proved by the prosecution. If the evidence is viewed minutely, it is apparent that the deceased was done to death by Gulli and as the basic ingredients of Section 34 are missing, it is only Gulli who is liable to be convicted under Section 302 of IPC, whereas rest of the accused persons namely Babu Lal, Khachere @ Ashok, Mantole @ Santosh are not liable to be convicted under Section 302/34 of IPC or under Section 304 Part I or Part II of IPC. Their conviction under Section 302/34 of IPC for committing the murder of the deceased is accordingly set aside.
23. The next question, which arises for consideration of this Court is as to whether the act of accused-appellant Gulli would fall within the definition of 'murder' or it would be 'culpable homicide not amounting to murder'. Before proceeding further, it is relevant to refer to the provisions of Section 300 of IPC, which read as under:-
"300. Murder. - Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly. - If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or -
Thirdly. - If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or -
Fourthly. - If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
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.
The above Exception is subject to the following provisos:-
First. - That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly. - That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly. - That the provocation is not given by anything done in the lawful exercise of the right of private defence.
Explanation. - Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
Exception 2. - Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3. - Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4. - Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation. - It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5. - Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent."
24. Exception 4 to Section 300 of the IPC applies in the absence of any premeditation. This is very clear from the wordings of the Exception itself. The exception contemplates that the sudden fight shall start upon the heat of passion on a sudden quarrel. The fourth exception to Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of provocation not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1, but the injury done is not the direct consequence of that provocation. In fact, Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon an equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. 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. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two persons to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage".
25. Considering all these aspects of the case, we are of the view that the offence has been committed without premeditation in a sudden fight in the heat of passion upon sudden quarrel and the offender has not taken undue advantage or acted in a cruel or unusual manner.
26. The Apex Court in State of A.P. vs. Rayavarapu Punnayya and Another1 while drawing a distinction between Section 302 and Section 304 of IPC held as under:
"12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder" its specie. All "murder" is "culpable homicide" but not vice-versa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.
21. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."
27. In Budhi Singh vs. State of Himachal Pradesh2, the Supreme Court held as under:
"18. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury.
19. Another test that is applied more often than not is that the behaviour of the assailant was that of a reasonable person. A fine distinction has to be kept in mind between sudden and grave provocation resulting in sudden and temporary loss of self-control and the one which inspires an actual intention to kill. Such act should have been done during the continuation of the state of mind and the time for such person to kill and reasons to regain the dominion over the mind. Once there is premeditated act with the intention to kill, it will obviously fall beyond the scope of culpable homicide not amounting to murder....."
28. In Kikar Singh vs. State of Rajasthan3 the Apex Court held as under:
"8. The counsel attempted to bring the case within Exception 4. For its application all the conditions enumerated therein must be satisfied. The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender's having taken undue advantage; (4) and the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat or exchanging blows on each other. And however slight the first blow, or provocation, every fresh blow becomes a fresh provocation. The blood is already heated or warms up at every subsequent stroke. The voice of reason is heard on neither side in the heat of passion. Therefore, it is difficult to apportion between them respective degrees of blame with reference to the state of things at the commencement of the fray but it must occur as a consequence of a sudden fight i.e. mutual combat and not one side track. It matters not what the cause of the quarrel is, whether real or imaginary, or who draws or strikes first. The strike of the blow must be without any intention to kill or seriously injure the other. If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to Exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying Exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the Exception 4 engrafted to Section 300 is excepted and the offences committed would be one of murder.
9. The occasion for sudden quarrel must not only be sudden but the party assaulted must be on an equal footing in point of defence, at least at the onset. This is specially so where the attack is made with dangerous weapons. Where the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel if the accused has inflicted fatal blows on the deceased, Exception 4 is not attracted and commission must be one of murder punishable under Section 302. Equally for attracting Exception 4 it is necessary that blows should be exchanged even if they do not all find their target. Even if the fight is unpremeditated and sudden, yet if the instrument or manner of retaliation be greatly disproportionate to the offence given, and cruel and dangerous in its nature, the accused cannot be protected under Exception 4...."
29. All the above three cases were considered by the Apex Court in Surain Singh v The State of Punjab4 and ultimately, it has been held by the Apex Court in that particular case, that the accused was liable to be convicted under Section 304 Part II of IPC and not under Section 302 of IPC.
30. In view of above, according to us, case of appellant Gulli would thus fall under Exception 4 of Section 300 of IPC and it can be safely held that the appellant is liable to be convicted for committing 'culpable homicide not amounting to murder'.
31. Now the question is whether appellant Gulli is liable to be convicted under Section 304 Part I or Part II of IPC. Considering the nature of injuries caused by him to the deceased, the weapon and the portion of body of the deceased, we are of the view that the appellant is liable to be convicted under Section 304 Part I of IPC and not under Section 304 Part II of IPC, whereas other accused persons, namely, Babu Lal, Khachere @ Ashok, Mantole @ Santosh are liable to be convicted under Section 323, 325 and 324/24 of IPC.
32. So far as the sentence part is concerned, accused-appellant Gulli @ Nand Kishore, has remained in jail for about 17 years. According to us, ends of justice would be served, if his sentence is reduced to the period already undergone by him under Section 304 Part-I of IPC. Order accordingly. He is reported to be in jail, he be set free forth, if not required in any other case.
So far as the sentence of other accused persons, namely, Babu Lal, Khachere @ Ashok, Mantole @ Santosh is concerned, they have remained in jail for about 4 months, the incident occurred on 18.03.2003, they are reported to be on bail since long and, therefore, their sentence is also reduced to the period already undergone by them. They need not surrender, and their bails bonds are discharged.
33. However, looking to the provisions of Section 357 of Cr.P.C. and judgment of the Apex Court in Ankush Shivaji Gaikwad v State of Maharashtra5, we are of the view that accused-appellant Gulli @ Nand Kishore is liable to compensate PW-5 Smt. Laxmi by paying a total compensation of Rs. 15,000/- (Fifteen Thousands). Likewise, other accused persons, namely, Babu Lal, Khachere @ Ashok, Mantole @ Santosh are liable to compensate PW-4 Durjan and PW-5 Smt. Laxmi by paying a total compensation of Rs. 12,000/- to them i.e. Rs.6,000/- to PW-4 Dujan and Rs.6,000/- to PW-5 Smt. Laxmi.
Accordingly, accused-appellant Gulli @ Nand Kishore is directed to deposit Rs. 15,000/- within a period of three months after being released from jail before the trial court and, in turn, the trial court shall disburse the said amount to PW-5 Smt. Laxmi. Accused-appellants Babu Lal, Khachere @ Ashok, Mantole @ Santosh are directed to deposit Rs.4,000/- each before the trial court within three months from today. Out of the total amount to be deposited by accused-appellants Babu Lal, Khachere @ Ashok, Mantole @ Santosh, the trial court shall reimburse Rs.6,000/- to PW-4 Durjan and Rs. 6,000/- to PW-5 Smt. Laxmi.
In case the appellants fail to deposit compensation within stipulated time, the court below shall proceed against them in the light of judgment of the Apex Court reported in Kumaran Vs State of Kerala and another (2017) 7 SCC 471.
34. The appeal is partly allowed.
35. We appreciate the assistance rendered by Shri Pradeep Mishra, Amicus and direct the State Government to pay Rs.7,000/- to him as his remuneration.
Date:20.02.2020
Nethra/C.Mani
(Shekhar Kumar Yadav, J.) (Pritinker Diwaker, J.)