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Judgment
Shivakant Prasad, J. - This appeal is directed against the judgment dated 30th January 01, 2008 and order dated February 01, 2008 passed by the learned Additional District & Sessions Judge, 2nd Fast Track Court, Contai, Purba Medinipur, in Sessions Trial Case No. 112 (March) of 2004 convicting the appellants under Sections 302/342/201 of the Indian Penal Code sentencing them to suffer rigorous imprisonment for life and to pay a fine of Rs. 2,000/- (Two Thousand) each, in default to suffer rigorous imprisonment for another two months under Section 302 of the Indian Penal Code and to suffer rigorous imprisonment for one year under Section 342 of the Indian Penal Code and also to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 1,000/- (One Thousand) each, in default to suffer rigorous imprisonment for another one month under Section 201 of the Indian Penal Code.
On the basis of a written complaint filed by one Sambhuram Maity, Bhupatinagar P.S. case no. 25/94 dated 09.7.1994 under Sections 302/201/34 of the Indian Penal Code was started against all the FIR named accused persons on allegations that on 08.7.1994 at about 11 P.M. the accused persons in furtherance of common intention murdered his brother, Shibram Maity, on the previous night and concealed his dead body in the house of Sasanka Maity of Goramulda village. It is alleged that some villagers of Kayemgoriya and Goramulda villages were putting pressure on the father and elder brother (deceased) of the de facto complainant to return a property and on that issue four meeting were held during the last five months. In those meetings it was decided that his elder brother Shibram since deceased must pay Rs. 3,000/- (three thousand). Since the de facto complainant and the members of his family are very poor they could not meet the said demand. On that issue on 07.7.1994 at about 5 P.M. when the deceased Shibram left his house by a bi-cycle to go to the house of his maternal uncle at Paunsi village at that time the accused no. 1 Anil Ari took the deceased to the house of Prafulla Maity by applying force. Then a meeting was held in the house of Prafully Maity on that night and the FIR named accused persons threatened the brothers and mother of the deceased that they would physically assault and kill the deceased. They kept waiting at the place of meeting till 1 A.M. on that night and the accused persons forced them to leave the place with warning that deceased would be released only if sum of Rs. 3,000/- was paid to them by 7 A.M. of morning. When brother of the de facto complainant accompanied by Panchayat Member started for the police station to register a case, they were informed that the deceased was found dead lying in the house of the accused Sasanka Maity of Goramulda village. The de facto complainant then lodged written complaint against seventeen accused persons and against many other unknown persons.
After completion of the investigation I.O. submitted Charge-sheet against nineteen persons under the aforesaid said sections. Out of total nineteen accused persons against whom the charge was submitted, accused Sasanka Maity is still absconding and two other accused persons namely, Prafully Maity and Matangini Maity expired before commencement of the trial. Charges under Sections 302/201/34 of the IPC were framed against the remaining sixteen accused persons who pleaded no guilty and have claimed for trial.
To prove the charges, the prosecution examined as many as fifteen witnesses. The written complaint, Inquest report, Post Mortem report, extract of G.D. number, dead body Challan, sketch map with index have been marked exhibits on behalf of the prosecution. The wearing apparels of the deceased is marked Mat. Ext.-I collectively.
After the prosecution closed its evidence, the accused persons were examined under Section 313 of the Cr.P.C. but they declined to adduce any defence evidence. The defence case as revealed from the trend of the cross-examination of the witnesses is that of total innocence.
Being aggrieved by the judgment impugned the appellants have preferred this appeal inter alia, on the grounds that the real FIR has been suppressed and a false, fictitious and concocted FIR has been admitted in evidence.
It is contended that the prosecution case being that 30 persons including the said 04 appellants were sitting in the house of Prafulla and the police having omitted the names of 14 persons as accused and the learned Judge having acquitted twelve persons by not placing credence to the prosecution witnesses, the appellants are also entitled to the benefit of reasonable doubt.
It is also submitted that the prosecution has led no evidence to prove that in the house of Prafulla a ''salisi'' was being held when four accused appellants assaulted the victim, Shibram Maity and there is no evidence as to when, how and by whom the victim was removed to Sasanka''s house from Prafulla''s house at a distance of about 500 feet intervened by a ponds from the alleged place of occurrence.
It is also contended that there is no evidence that said appellants inflicted severe injuries to the victim as the doctor did not find any serious injury on the person of the victim. Hyoid bone was also not fractured and there was no evidence of strangulation and further submitted that absence of grievous injury on the victim and non-examination of viscera totally shake the prosecution charge under Section 302 IPC more so, when the injuries on the victim were simple in nature which are not sufficient to cause death.
Learned Counsel for the appellants also submitted that in case of circumstantial evidence, motive plays a major part. Matagini Maity, Prafulla Maity and Sasanka Maity might have their interest in the dispute property, but the four appellants are mere villagers and they had no interest for Rs. 3,000/-, to kill a person with the help of other 26 persons.
It is contended that on 22nd Ashar 1402 B.S. at 5 P.M. Kartick Maity a non C.S. witness informed prosecution party that Anil Ari forcibly took Shibram to the house of Prafulla Maity at village Goramuda. Next day at 1 A.M. the accused persons asked P.W.-1 and other to bring Rs. 3,000/- by 7 A.M. But at 7 A.M. they did not see Shibram in the house of Prafulla, Prafulla''s wife said that Shibram had fled away from their house. On search the dead body of Shibram was found in the house of Sasanka Maity brother of Prafullya Maity but PW1 FIR maker could not say which accused assaulted Shibram by which weapon and did not mention in the FIR names of Anil Ari, Khokan Ari, Prabhuram Laya, Bhriguram Ari having assaulted his brother.
According to P.W.-15 A.R. Das he was told by the S.P. that a person has been murdered at Godamulda. He went to the spot and saw ASI, A.N. Das with force guarding the house of Sasanka Maity where the dead body was kept. There he received a written complaint of P.W.-2 Sambhuram Maity, and he sent the same to P.S. Evidence clearly reveals that PW15 was in crime conference of the District chief police when the said information was received by them. We do not find any good reasoning placed by the side of defence for our conclusion that FIR was a concocted and embellished one as the same finds corroboration by its maker.
Lastly, it is contended that the charges are defective and lacking in material particulars without any mention of time of occurrence, place of occurrence and manner of occurrence. We do not agree with such contention in view of specific provision under section 464 of Cr.P.C. which enjoins that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
In this case 17 (seventeen) persons were arraigned as accused persons in the written complaint lodged by Sambhuram Maity, the brother of the deceased who had complained to this effect that on 07.07.1994 at around 5 O'' Clock his elder brother Shibram Maity left his house and he was going to the house of his maternal uncle at Paunsi when accused Anil Ari caught hold of him near the playground of the high school to the southern side of his house and took him by force and heard that he was detained in the house of Prafulla Maity. He along with his mother and younger brother Parsuram Maity went to the house of Prafulla where he saw 30 persons present there but complainant recognised 17 persons whose names are mentioned in the FIR. Out of 17 accused persons Prafulla Maity died and 16 accused persons faced trial and on conclusion of the trial 12 accused persons were acquitted of the Charges levelled against them but the present four appellants were convicted and sentenced for the aforesaid Charges framed against them.
The FIR maker Sambhuram Maity P.W.-1 has stated in his examination-in-chief that his nephew Kartick Maity was playing in the ground at that time who had told him that Anil Ari forcibly took his elder brother to the house of Prafulla of Goramulda village and after visiting the house of Prafulla he saw 30 persons assembled in the courtyard in the house of Prafulla and the prosecution witnesses asked them as to why they confined his brother and in reply they pointed out that his brother Shibram has to pay Rs. 3,000/- to them as per salisi held on account of landed dispute and if the sum of Rs. 3,000/- is not paid as required for registration of the property, they would not release his brother and held out threat to kill him.
It is true that said Kartick aged seven years was not cited as a prosecution witness. The bi-cycle by which the deceased was riding was also not seized by the police but that is not very fatal to the prosecution case.
According to P.W.-2 accused Anil Ari, Khokan Ari, Prabhuram Laya, Bhriguram Ari and Rabin Maity assaulted his elder brother who was detained throughout night. On the following morning, P.W.-1 and inmates of his family tried their best to collect said money and again visited Prafulla''s house in the morning but Basanti wife of Prafulla told that his brother had fled away from their house. The complainant was advised to lodge information with the police but on his way to police station he learnt that dead body of his said brother was kept concealed under firewood in the house of Sasanka Maity. So, instead of going to the police station on getting such information from Ramgopal Maity his cousin brother, he went to the place where dead body was found. Obviously, he could not lodge the complaint at that point of time as he was mentally perturbed over the incident. The police came to his house at about 11 P.M. from where they went to the house of Sasanka Maity. A complaint was lodged with the police which was ascribed by Harish Chandra Das as per his instruction, proved as Exbt.-1. Police held inquest over the dead body vide inquest report Exbt.-2. Inquest over which he signed (Exbt.-2). Wearing apparel of his brother was also seized in his presence. The question has been raised that when he saw 30 persons assembled in the house of Prafulla against all of them police did not submit Charge-sheet except against 17 accused persons. The suggestion put to P.W.-1 by the defence during cross - examination of PW1 reflects animosity between the parties. It is true that during cross-examination P.W.-1 could not say who the accused persons had assaulted the deceased by which weapons. It is quite obvious because he was not there at the time of inflicting assault but he deposed that accused Anil Ari, Khokan Arui, Prabhuram Laya, Bhriguram Ari and Rabin Maity did not assault his elder brother but they held out threat in his presence. Parsuram Maity, P.W.-2 younger brother of P.W.-1 has stated on oath that on his way to maternal uncle Anil Ari caught hold of his elder brother in front of his School along with his bi-cycle and brought to the house of Prafulla Maity by applying force on him and Kartick who was playing in the ground at that time, informed them about the said fact. In the light of lantern lit in the veranda of the house of Prafulla Maity, he saw his elder brother Shibram and 30 persons surrounding him but he could not identify all of them but identified some of them namely, Bhriguram Ari, Anil Ari, Prabhuram Laya, Khokan Ari, Kanai Ari, Sambhuram Ari, Mantu Ari, Fokesh Ari, Prafulla Maity, Jugal Pada Maity, Matangini Maity, Rabin Maity, Malay Maity, Basanti, Laxmi and Sasanka Maity and they were also identified by him during trial. According to P.W.-2, they created pressure upon them demanding sum of Rs. 3,000/- in connection with a land for registration of property in favour of Matangini Maity. It is admitted that the land originally belong to Matangini Maity who has transferred the same in favour of her adopted son Manik Maity but the nephews of Matangini Maity claimed the said property. Since the prosecution witnesses were poor they could not pay the said sum of Rs.3,000/- to the accused persons and for that reason the accused persons created pressure on the prosecution party who were in the house of Prafulla Maity up to 1 A.M. but the accused persons did not release the deceased and told that they would not release until payment is made. The accused persons armed with ''lathi'' threatened with dire consequences saying that if prosecution party did not make payment by 7 A.M in the following morning, he would not get his elder brother.
According to Subhas Maity P.W.-3, he saw that accused persons namely Prafulla, Sasanka Maity and many other were putting pressure on Shibram for demand of Rs. 3,000/-.
Nani Gopal Maity, P.W.-4 cousin brother (Jethtuto Bhai) of the deceased also narrated about the occurrence of kidnapping of Shibram from the play ground in front of School and taking him to Prafulla''s house where meeting was held. The mother, brother, sister and father of Shibram had been to the house of Prafulla and who saw the deceased being confined in the latter''s house and accused persons were requested to release the deceased but of no effect. P.W.-4 was informed by brothers of Shibram that they along with other neighbours had been to Prafulla''s house where they found Anil Ari, Bhriguram Ari, Prabhuram Laya, Khokan Ari and many other in the house and Prafulla asked them to bring money first then to get release of Shibram but the prosecution party could not secure the release of Shibram. On the following morning P.W.-4 went there and found no person was found in the house of Sasanka Maity, Prafulla Maity and found only the wife of Sasanka Maity and he also found the house of Sasanka Maity was closed from outside with a pad lock on the entrance door of the house.
Aswini Dolui, P.W.-5 has also been to the house of Prafulla on hearing such news of kidnapping and confinement of Shibram in the house of Prafulla but he was not allowed to go Shibram. So he could not say the names of those surrounding Shibram but the fact is proved that Shibram was kidnapped by Anil Arui over dispute relating to money matters and Prafulla Maity and Sasanka Maity told him that they would not release Shibram if the money was not paid to them by Shibram or his brothers. Thus, on appraisal of evidence on record, we find that all the said witnesses have corroborated the prosecution case of abduction and confinement of the deceased Shibram in the house of Prafulla by the persons of Prafulla including the appellants and recovery of his dead body from the house of Sasanka Maity, brother of Prafulla Maity on the following day. P.W.-6 Nikunja Pahari has also corroborated fact of demand of sum of Rs.3000/- by the accused persons.
It is urged on behalf of the appellants that as per the prosecution case, 30 persons including the said four appellants were seen in the house of Prafulla but police omitted names of some of them by not citing their names in the charge sheet. The learned Judge also acquitted twelve accused persons after the trial, therefore, the four appellants ought have been given benefit of reasonable doubt. We are unable to agree with such submission because the prosecution witnesses though stated about 30 persons surrounding the deceased in the house of Prafulla but since they could not recognise and disclose the names of all of them and for the reason that there was no iota of evidence as against 14 other persons, they were rightly acquitted by the learned Trial Judge, but this cannot be the just ground for acquittal of four appellants when the evidence of prosecution witnesses are in corroboration to each other in general terms who were duly identified by the prosecution witness having participated in the crime.
Mr. Himangshu Dey learned Counsel for the appellants has further submitted adverting to the observation made at page 137 - 138 of the paper book in the judgment impugned that the circumstances relied upon by the learned Judge do not unerringly or irresistively point to the guilt of the appellants because actual time of occurrence, the place of occurrence and the manner of occurrence has not been proved by the prosecution inasmuch as the dead body of Shibram was found in the house of Sasanka Maity, bother of Prafulla Maity, whereas the deceased allegedly was confined in the house of Prafulla Maity. It is also submitted that there is no attempt for proof of any salisi being held in the house of Praffulya where the four accused assaulted the victim Shirbam. It is also submitted that there is no evidence as to when by or whom victim was removed to Sasanka''s house from Prafulla house situated at a distance of about 500 ft. intervened by a pond from the alleged place of occurrence.
To fortify his argument reliance has been placed in Gambhir v. State of Maharashtra, AIR 1985, 1157, Paragraph-9, wherein it has been held thus,
"the law regarding circumstantial evidence is well settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
In the light of clenched position of law governing the field of circumstantial evidence, the Hon''ble Apex Court was of the view on a given set of facts that on scrutiny of evidence only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again consigning in the company of Laxmi on 26th February in the night till before dinner. This single circumstance by itself was considered feeble to connect the accused with the murder of Laxmi and her children. Therefore, the facts and circumstances of the instant case is not apposite to the above cited decision.
I.O. held inquest over the dead body of the deceased who found bloodied injuries on the eyes, cut mark on the upper lip and blackish circular mark of rope found around the neck of the deceased with bloodied injuries on the chest and blackish mark on the right arm of the deceased and to ascertain the actual cause of death, the dead body of the deceased was sent to Contai Sub-Divisional Hospital by Constable No. 1125 Aswini with dead body challan for post mortem examination.
Autopsy Surgeon Dr. Tusar Kanti Maity held post mortem examination and found haematoma 1" length x 1" breadth x � " depth in the left and right maxillary region of face, (2) haematoma length 2" x breadth � " and depth � " in the right side of the chest and bruise length 4" x � " in breadth around the neck. It is true that there was no ligature mark on the neck but the cause of death according to Autopsy Surgeon, is ante mortem and homicidal in nature due to cardio-respiratory failure out of shock and injuries. In the opinion of the P.M. doctor, bruises might be caused if pressed by any bamboo like instrument. Thus, the prosecution case finds corroboration by medical evidence.
Mr. Dey placing reliance on a decision in Gayadin v. state of MP reported in (2006)1 Supreme Court cases(Cri) 549 submitted that there was every possibility that prosecution witnesses namely, Sambhu Ram Maity PW1, Nanigopal P.W.-4, Arun Samant P.W.-9, Haripada P.W.-8, Aswini P.W.-5, Nikunja P.W.-6, Sachindra P.W.-7, Subal Maity were planted witnesses because in spite of being available at the locality, they were not questioned by the investigating officer within reasonable time inasmuch as I.O. has stated that he examined them on 04.07.1995 as the occurrence took place on 08.07.94. Inspector Ramendra Narayan Singh P.W.-14 was officer in charge of Bhupatinagar P.S. on 25.12.1994 and received case diary from S.I. A.B. Paul for further investigation as the first I.O. Ashis Ranjan Das P.W.-15 had left the police station for long training by handing over the case diary to his successor namely, A.B. Paul.
But we''re not in agreement with the submission of Mr. Dey, because Nikunja P.W.-6 in unequivocal term deposed during cross-examination that he was examined by I.O. on the date when the dead body of the deceased was detected. This piece of evidence goes uncontroverted by the defence. P.W.-7 has also corroborated the prosecution case by saying that he was examined by the investigating officer on the date when they came to take dead body. There is no suggestion given to P.W.-4 as to on which day he was examined by the I.O. P.W.-5 candidly stated during cross-examination that he was examined by the IO on 07.07.1994. He has also narrated the incident as seen by him to this effect that the deceased was kidnapped by Anil Ari over some dispute relating to money matters. Prafulla and Sasanka told him that they would not release Shibram if the demanded money was not paid to them by said Shibram or his brothers. He was near the house of Prafulla for about five minutes and then came back as he was not allowed to go near the place. It is quite obvious that prosecution by declaring PW8 hostile and tendering PW9 for cross-examination by defence does not want to rely on those two witnesses.
Nevertheless, on evaluating the totality of evidence on record, we find that within the facts and circumstances of this case, it cannot be said that material witnesses for the prosecution were not examined within a reasonable time. This fact cannot be lost sight of that the first I.O. left the station for a long training and he handed over the case diary to his successor, S.I. A.B. Paul who did not undertake investigation and case diary was handed over to the subsequent I.O. P.W.-14 on 25.12.1994. Therefore, if there was any latches in examining the witnesses then it was because of S.I. Paul and for that it cannot be held that the aforesaid witnesses who have practically seen the occurrence were planted by the prosecution.
We do agree with the proposition that last seen theory comes into play where the time gap between the point of time that accused and deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is well settled that suspicion, however, grave may be, cannot be a substitute for a proof and the courts shall take utmost precaution in finding an accused guilty only on the basis of the circumstantial evidence. This is what has been done by the learned trial judge who after sifting the chaff from the grain has been able to find the four appellants guilty of the offences committed by them as we find on evidence that the prosecution witnesses mainly, P.W.-1, P.W.-2, P.W.-4 and P.W.-7 have corroborated the prosecution case up to the hilt having seen the deceased being abducted by Anil Ari by force and taking him to the house of Prafulla and the accused persons holding out threat to assault and kill the diseased, if the sum of Rs. 3000/- is not paid to them. On the next morning when the prosecution witnesses visited the house of Prafulla no male member of the family was present except his wife who otherwise pointed out to them that the deceased had fled away from their house but the dead body of the deceased was found in the house of the accused Sasanka,brother of Prafulla who had absconded from their house. The accused persons were duty-bound to lead defence evidence as to how the dead body of the diseased was found in the house of accused Sasanka Maity who along with his brother Praffullya and other accused persons were absent and had absconded from their houses. Provision of section 106 Evidence Act is an exception to section 101. So it was the legal obligation of the accused persons to dispel the suspense characterised from their acts.
Autopsy surgeon P.W.-10 held post-mortem examination on the dead body of the deceased and gave opinion that the death was homicidal and ante mortem in nature.
Thus, facts and circumstances are well proved by the prosecution witnesses pointing to the guilt of the accused persons because on appraising the evidence we find firstly, that the witnesses have corroborated the prosecution case in general term by deposing that on being informed that the appellant accused Anil Ari had abducted the deceased and took him to the house of Prafulla forcibly, the prosecution witnesses visited his house and found the deceased being confined there by about 30 persons. It is quite natural that in a village after sunset it might not be possible for the prosecution witnesses to identify all 30 persons surrounding the deceased but they could identify FIR named accused persons including the appellants in the light of a lantern lit in the house of the accused Praffulla, who have stated on oath that the accused persons named in the FIR were present amongst them. Secondly, the prosecution witnesses have stated in clear crystal term that Prafulla and the appellants had demanded money of Rs. 3,000/- to be paid as a condition for releasing the deceased from their house. Thirdly, that threat was held out by the accused persons including appellants with dire consequences to wit, that the prosecution witnesses may not see their deceased brother in the next morning if the sum of Rs. 3,000/- was not paid by 7 A.M. Fourthly, these appellants were also seen by the prosecution witnesses inflicting assault on person of the deceased. Fifthly, when the prosecution witnesses came to the house of Prafulla, there was none in the house of Prafulla Maity except his wife and the latter replied on being asked by the prosecution party that Shibram had fled away from their house. Sixthly, Praffula''s brother Sasanka Maity was also not in his house wherefrom the dead body of the deceased Shibram was recovered which was kept concealed in the firewood. These are all circumstances which unerringly points towards guilt of the accused appellants with a definite conclusion that within all human probability the crime was committed by the accused persons and none else.
Thus, on critical scrutiny of evidence on record and findings arrived by the learned Trial Judge to a decision that the appellants have committed the crime causing death of the deceased, we do not find any ground to interfere into the findings as such.
On the question of sentence, Mr. Dey submitted that the P.M. report shows that injuries on the dead body of the deceased were not on vital parts. So, the appellants ought not have been convicted under section 302 IPC relying on the authority in case of Sarman and others v. State of Madhya Pradesh, AIR 1993 Supreme Court 400, wherein the Hon''ble Apex court observed that the injuries were not inflicted on vital parts of the body and held that accused was liable to be convicted under section 304 II/149 IPC instead of section 302/149. Reliance has also been placed in the case of Vijay Singh and another v. State of Madhya Pradesh reported in (2014) 3 C CR LR (SC) 330 wherein it is held thus,
"Nonetheless from the evidence of prosecution witnesses what is proved beyond doubt is that appellant Vijay Singh caused injury on the face of the deceased by ballam and appellant Hari Singh or neck by farsa . In this backdrop, we proceed to consider the nature of offence. It is relevant here to mention that no charge under section 34 IPC has been framed against the appellants. Even if we assume in favour of the State, as contended by Mr. Singh that is possible to hold the appellant''s guilty under section 302 read with section 34 of the IPC in the absence of charge, in our opinion, for that the prosecution will have to prove that the injuries attributable to the appellant''s or any of them were the cause of death. Therefore, the death had not taken place as a result of the injuries caused by the appellants or any one of them. Hence they cannot be held guilty under section 302, IPC simpliciter or with the aid of section 34 IPC. However, the prosecution has been able to prove that the appellant''s have assaulted the deceased with ballam and farsa, which are dangerous weapons. Further, the appellants had caused grievous injuries on the person of the deceased. Hence they may not be held guilty under section 302 or 302 read with section 34 IPC, but surely there are acts come between the mischief of section 326 IPC. Accordingly we modify the appellant''s conviction and hold them guilty under section 326 IPC and sentenced them to undergo rigorous imprisonment for 10 years each and fine of Rs. 5000 each, in default to suffer imprisonment for six months. We have been told that the appellants have already remained in custody for more than the period of their sentence stop that be so, they be released forthwith unless required in any other case."
Bearing in mind the observations in the above cited decisions we find the same apposite to the facts and circumstances of the instant case and relying on the situation of this case, order of conviction under section 302 IPC is set aside and modified to one under section 304 II of IPC instead of section 302 of IPC and sentenced to a term of rigorous imprisonment for 10 years instead of life imprisonment, however, without any modification in respect of other charges and the provision relating to payment of fine with default clause. The pretrial detention and period of incarceration be set off from the substantive period of sentence as per provision of Section 428 of Cr.P.C.
Appeal, therefore, is allowed in part.
Let the Lower Court Record together with a copy of this Judgement be sent down to the learned Trial Court forthwith for necessary action.
Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.
Rajiv Sharma, J. - I agree.