AI Structured Summary
Not yet generated for this judgment
Judgment
The instant criminal appeal has been filed by the appellants
under Section 374 (2) Cr.P.C . challenging the judgment dated 13 th
January, 2016 passed by Addl. Sessions Judge, Bali Camp Desuri,
District Pali, in Session Case No.30/2008 by which the trial court
convicted the appellants for offences under Sections 302, 307,
302 / 34, 307 / 34, 323 & 341 of IPC and following sentence was
passed against the appellants:
Appellant- Smt. Pawani Kumari @ Pawani
323 of IPC :-Simple Imprisonment for one year along with fine of Rs.500/-. In default of payment of fine to further undergo one month''s simple imprisonment.
341 of IPC :- Simple Imprisonment for one month. Appellant- Jitendra Joshi
302 of IPC :- Imprisonment for life along with fine of Rs.2000/-. In default of payment of fine to further undergo six months'' simple imprisonment.
307 of IPC :- Rigorous Imprisonment for seven years along with fine of Rs.1000/-. In default of payment of fine to further undergo six months'' simple imprisonment.
341 of IPC:- Imprisonment for one month. Appellant- Ramesh Kumar
302/34 of IPC :- Imprisonment for life along with fine of Rs.2000/-. In default of payment of fine to further undergo six months'' simple imprisonment.
307/34 of IPC :- Rigorous Imprisonment for seven years along with fine of Rs.1000/-. In default of payment of fine to further undergo six months'' simple imprisonment.
341 of IPC :- Imprisonment for one month.
Succinctly stated, the facts of the case are that PW.4-
Yasinudeen, submitted a written report (Ex.P/5) at Police Station-
Rani, in which following allegations were levelled by him, which
reads as under: -
"VERNACULAR MATTER OMITTED"
Upon the aforesaid written report submitted by the
complainant PW.4 - Yasinudeen, formal F.I.R. No.77/2008 was
registered at Police Station- Rani, District Pali, initially for offences
under Sections 341, 323, 324, and 307 / 34 of IPC against the
accused, Ramesh Kumar, Kanhaiyalal, Jitendra Joshi and Smt.
Pawani Kumari @ Pawani, however, after death of Rustam
(complainant''s son) Section 302 IPC was added.
During investigation, accused appellants were arrested and
regular investigation was conducted and the investigation
culminated into the submission of charge sheet against the four
accused persons, namely, Kiran @ Kanhaiyalal, Jitendra Joshi,
Ramesh Kumar and Smt. Pawani Kumari @ Pawani in the court of
Civil Judge & Judicial Magistrate, Desuri, from where the case was
committed for trial to the court of court of Addl. Sessions Judge,
Bali, Camp Desuri, District Pali.
The trial court after providing an opportunity of hearing to all
the accused framed charges against them for offences under
Sections 341, 323, 323, 307 & 302 / 34 of IPC, however, they
denied the charges and claimed trial.
In the trial, statements of 27 prosecution witnesses were
recorded, out of which PW.3- Dhal Singh, PW.4- Yasiudeen, PW.7-
Smt. Bhanwari Bai, PW.-14 Ayaz Hussain, PW.16- Smt. Anjuman,
PW.-18 Firoz Bahadur, PW-20 Parwat Singh and PW-22 Anwar
Khan, were eyewitness. During trial, 37 documents were exhibited
including injury report and x-ray report of injured, Firoz Bahadur
Khan, Rustam Bux (deceased) and Smt. Bhanwari Bai, so also,
postmortem report of deceased, Rustam and FSL report (Ex.P/37)
to prove the prosecution case. After recording the evidence of
prosecution, learned trial court recorded the statements of all the
accused appellants under Section 313 Cr.P.C. in which accused
appellants gave explanation that it is a case of false implication
and all the allegations made by prosecution witnesses are false. In
defence, the appellants examined DW-1 Dr. Bhanwarlal Bohra (Jr.
Specialist, PHD Rani) and DW-2 Bhanwar Singh (ASI, Bangar
Hospital) and 14 documents were exhibited from defence side.
After recording the evidence of parties the final arguments
were heard and vide judgment dated 13.01.2016, the learned trial
court held the accused appellant, Smt. Pawani Kumari @ Pawani,
, mentioned above. However, accused,
Kiran @ Kanhaiylal was acquitted from the charges levelled
against him.
The accused appellants preferred appeal (DB Cri. Appeal
No.116/2016) challenging the findings of conviction recorded by
the trial court for the aforesaid offences and the State has also
filed an appeal (DB Cri. Appeal No.1100/2016) against acquittal of
respondent- Kiran @ Kanhaiya Lal S/o Ogad Ram and Smt. Pawani
Kumari @ Pawani with a prayer to held them guilty for offences
under Section 302 / 34 IPC.
Both these appeals are arising out of same judgment dated
13.01.2016, therefore, same are being decided by this common
judgment.
At the threshold, learned counsel appearing on behalf of
accused appellants submits that appellants are not challenging the
incident but submitted that as per prosecution case, the
occurrence took place all of sudden due to some quarrel took
place some days back and there was no previous enmity in
between the parties. To prove the aforesaid fact, learned counsel
for the appellants invited our attention towards the statement
(ipkZ&c;ku) [Ex.D/4] of the injured eyewitness, namely, Firoz
Bahadur (PW18) recorded by the investigating officer on
10.06.2008 at 07.10 PM, in which a different story was narrated
by him, which reads thus:
"VERNACULAR MATTER OMITTED"
While inviting our attention towards the above-quoted
statement of injured eyewitness, learned counsel for the
appellants submit that the day on which the occurrence took place
in a spur of moment, without any motive or intention injuries were
caused to deceased, Rustam. Therefore, even if the entire
prosecution evidence is accepted, the offence cannot travel
beyond offence under Section 304 Part-I of IPC against Jitendra
Joshi and offence cannot travel against accused appellant, Ramesh
Kumar u/s 307 because no injury was inflicted by him to the
person of deceased. With regard to conviction of Smt. Pawani
Kumari @ Pawani, it is submitted that appellant, Smt. Pawani
Kumari @ Pawani has been convicted for offence under Sections
323 and 341 IPC and sentence for one year has been imposed
against her, but as per evidence on record, she can be given
benefit of probation because as per allegations injury was caused
to the deceased or the injured eyewitness.
Learned counsel appearing on behalf of appellants invited
our attention towards the recent judgment of Hon''ble Apex Court
in the case of Shahajan Ali & Ors. Vs. State of Maharashtra
reported in AIR 2017 sc 2614 and submitted that in the said
case, the Hon''ble Apex Court altered the conviction from offence
u/s 302 IPC to 304 Part-II in identical facts of the case and
reduced the sentence to the period already undergone. It is thus
submitted that in this case also the conviction of appellants,
Jitendra Joshi and Ramesh Kumar, may be altered from offence
under Section 302 IPC to Section 304 Part-II of IPC and their
sentence may be reduced to the period already undergone by
them.
Per contra, learned Public Prosecutor and learned counsel
appearing on behalf of complainant submit that it is a case in
which injuries were inflicted by knife with intention to kill by
appellant Jitendra Joshi and, furthermore the appellants are not
disputing the occurrence, therefore, there is no question to disturb
the finding of guilt recorded by the trial court for convicting the
accused appellants for offence u/s 302 and 302/34 of IPC because
there is reliable and trustworthy evidence of eyewitness and upon
their testimony, the trial court held the appellants guilty for
offences u/s 302 and 302/34 of IPC .
Learned Public Prosecutor as well as learned counsel for the
complainant argued that as per medical evidence i.e. injury
reports and postmortem report (Ex.P/29A) & injury report
(Ex.P/28) of deceased, Rustam, the injury was caused on the left
side of abdomen and due to said injury, deceased died. It is
further submitted that injury report (Ex.P/26) of Firoz Bahadur,
loudly speak that incised wound was inflicted upon chest of Firoz
Bahadur (injured eyewitness), therefore, intention can be
gathered from the injury caused on the chest and thus looking to
the nature of injury viz. 2.5 cm x 0.5 cm, so as to conviction and
sentence imposed against the appellants u/s 302 and 302/34 IPC
deserves to be upheld.
It is further submitted that postmortem report and injury
reports are corroborated from the testimony of witness viz. Dr.
Jagdish Jugtawat (PW.25) (Medical Jurist) who had performed the
postmortem of deceased Rustam vide Ex.P/29A and said that
there was incised wound upon the body of deceased of 3" x 1" cm
up to cavity, therefore, it is obvious that injury was caused only
with a view to kill the deceased. Learned Public Prosecutor further
argued that all the accused appellants and Kiran @ Kanhaiyalal
acquitted by the trial court, participated in the incident, and
caused injury not only to the deceased but other two persons, viz.
Ms. Anjuman (PW.16), Smt. Bhanwari Bai (PW.7) and Firoz
Bahadur (PW.18), therefore, there is no force in the prayer of
learned counsel for the appellants to alter the conviction from
offence u/s 302 and 302/34 IPC to 304 Part I of IPC . More so it is
a fit case in which trial court has arrived with the finding that
offence u/s 302 and 302/34 is made out against the accused
appellants, Jitendra Joshi and Ramesh Kumar.
It is also submitted that participation of appellant, Smt.
Pawani Kumari @ Pawani, is proved, therefore, trial court held her
guilty for offence u/s 323 and 341 IPC, as such she is not entitled
for any lenient view as per evidence of this case. It is submitted
that appeal of the accused appellants be dismissed and appeal
filed by State may kindly be allowed to convict the respondent,
Kiran @ Kanhaiyalal.
While arguing DB Cri. Appeal No.1100/2016, filed by the
State, it is submitted that inspite of evidence of record learned
trial court committed an error to acquit the respondents Kiran @
Kanhaiyalal, from the charges levelled against him for the offence
of murder. While inviting attention towards the statement of the
eyewitness, it is submitted that Kiran @ Kanhaiyalal actively
participated in the incident along with Smt. Pawani Kumari @
Pawani, therefore, the trial court has committed an error to acuit
them from the charge for offence u/s 302, 302/34 & 307/34 IPC,
therefore, they may also be held guilty for offence under Sections
302/34 and 307/34 IPC and they may be punished for committing
aforesaid offences.
Learned counsel for the respondent, Kiran @ Kanhaiyalal and
Smt. Pawani Kumar submitted that there is not error in the
judgment rendered by trial court so as to acquit respondent, Kiran
@ Kanhaiyalal from the charges levelled against him because
there is no evidence on record for inflicting any injury to the
injured, so also, no weapon has been recovered from him. It is
further argued that conviction of the accused appellant, Smt.
Pawani Kumari is not sustainable in law because it is a case of
false implication, therefore, there is no question to accept the
appeal of the State for the purpose of convicting, Kiran @
Kanhaiyalal and Smt. Pwawani Kumari @ Pawani, for the serious
offences under Sections 302 / 34 and 307 / 34 of IPC. The
prosecution has miserably failed to lead any evidence to prove
participation of the respondent Kiran @ Kanhaiyalal, in the
incident. It is, therefore, submitted that appeal filed by the State
may kindly be dismissed.
After hearing the learned counsel for the parties, we have
minutely perused the entire evidence and finding given by the
learned trial court for conviction under Sections 302 and 302 / 34
IPC and for other offences. Learned counsel for appellants has not
disputed the incident and restricted the arguments only to the
extent that no offence under Section 302 IPC is made out against
appellant, Jitendra Joshi and offence under Section 302 / 34 IPC
against appellant, Ramesh Kumar is not made out, so also the
finding of learned trial court holding the appellant, Smt. Pawani
Kumari @ Pawani for offence under Section 323 and 341 IPC, are
not made out.
Admittedly, the written report was submitted by the
complainant- Yasinudeen S/o Azim Bux, upon that report, FIR was
registered, for the incident in which there are allegation for
causing injury by knife (a sharp edged weapon) to the person of
deceased, Rustam and injured- Fizoj Bahadur, so also, against the
Smt. Pawani Kumari inflicted injuries to injured, Smt. Bhanwari
Bai. There is no allegation against the appellant, Smt. Pawani
Kumari @ Pawani, in the FIR lodged by the complainant,
Yasinudeen for inflicting any injury to the deceased, Rustam and
injured, Firoz Bahadur by Smt. Pawani Kumari and the only
allegation is for inflicting injury upon the hand of Smt. Bhanwari
Bai, wife of complainant and further there is allegation that one
Kiran @ Kanhaiyalal insisting all the accused to cause injury but
there is no allegation against Kiran @ Kanhaiyalal, for inflicting
any injury to any of the injured in the incident.
We have also perused ''Parcha-Bayan'' (Ex.D/4) of injured
eyewitness- Firoz Bahadur, recorded by SHO, Police Station- Rani
on 10.06.2008 at 07.10 PM. Upon perusal of statement of the
injured eyewitness, Firoz Bahadur (PW.18) and complainant
Yasinudeen (PW.4), we find that there are major contradictions in
the statements of both these witnesses, however, it emerges from
the facts disclosed by these two witnesses that incident took place
due to some quarrel in between the parties, in which only one
injury was caused by accused, Jitendra Joshi, to deceased
Rustam, which is evident from the postmortem report (Ex.P/29A)
and only one injury was found upon the body of the complainant.
There is no allegation for causing repeated injury to the deceased,
more so, as per defence evidence injuries were caused to accused
party also, which is not in explained. We have also considered the
very important fact that there is no allegation for causing repeated
injury, only one injury was inflicted Jitendra Joshi to the deceased,
and one injury was inflicted by Ramesh Kumar to injured
eyewitness Firoz Bahadur and incident took place due to some
quarrel before some days back in between the parties and,
therefore, there is strength in the arguments of learned counsel
for the appellants that finding of trial court for commission of
offence under Section 302 IPC against accused appellant, Jitendra
Joshi deserves to be altered for offence under Section 304 Part-I
IPC because only one injury was caused by him to the person of
deceased, which resulted into the death. Similarly, there is no
allegation of inflicting any injury by accused appellant, Ramesh
Kumar to the deceased but he was present and participated in the
incident, so also, caused one injury to the injured eyewitness Firoz
Bahadur, which is not in dispute.
In view above admitted facts, we are of the opinion that
finding of learned trial court so as to convict the accused
appellant, Jitendra Joshi for offence u/s 302 IPC is not sustainable
but he is liable to be held guilty for offence u/s 304 Part-I IPC .
Similarly, there is no allegation against accused appellant, Ramesh
Kumar, to cause any injury to the deceased but caused one injury
to the injured eyewitness by sharp edged weapon (knife) and
there is no allegation of repeated infliction of injury, therefore, the
finding recorded by learned trial court against accused appellant,
Ramesh Kumar, for offence under Section 302 / 34 IPC against him
is not sustainable, but he is liable to be held guilty for offence
under Section 304 / 34 Part-I IPC.
After perusing the statements of all the injured eyewitness
including, Smt. Bhanwari Bai (PW.7), we are of the opinion that
finding recorded by trial court for conviction against accused
appellant, Smt. Pawani Kumari @ Pawani, for offence u/s 323 and
341 IPC is based upon correct appreciation of evidence, therefore,
finding of guilt recorded by the trial court holding appellant, Smt.
Pawani Kumari @ Pawani, guilty for offences u/s 323 and 341 IPC
does not require any interference but she being a lady, the period
of sentence can be reduced with fine.
The Hon''ble Supreme Court in the case of State of
Himmachal Pradesh Vs. Ram Pal, reported in 2006 (2) SCC (Cri.)
165, gave following verdict to alter the conviction from offence
under Section 302 IPC to Section 304 Part-I of IPC, the paras nos.
5 to 8 of the said judgment are as follows:
"5. Having perused the record for the limited purpose of finding the nature of offence, we see that it is clear from the evidence of PW- 3 himself that he and Jaiwant consumed liquor before going to the tea stall of the respondent herein to demand the money which was due to him and when they reached there the deceased went inside the tea stall and started quarreling with the accused persons. During the said quarrel it is stated that the deceased called the accused persons as "cheat" and "beiman" and the quarrel then spilled outside the stall at which point of time a stick that was carried by Choudhary Ram was snatched by PW- 3, in the process Choudhary Ram got injured and fell down. Here we must notice the case of the defence is that PW- 3 assaulted Choudhary Ram which caused him facial injury and noticing his father being assaulted the respondent intervened and assaulted PW- 3 first with a knife and then assaulted the deceased twice on his back.
On the facts of this case whichever version we take it is clear that it is the deceased and PW- 3 after consuming liquor went to the tea stall of the accused. When the deceased went inside and abused the accused, the said verbal quarrel then spilled outside the shop when Choudhary Ram was injured on the fact either intentionally or otherwise by PW- 3. It is at that time the respondent stabbed PW--3 and the deceased. From the above facts stand proved are (a) the deceased went with PW- 3 to the shop of the accused; (b) picked up an argument during which he abused the accused; (c) Choudhary Ram was injured first and then the respondent stabbed PW- 3 and the deceased; (d) injury was inflicted on the back of the deceased.
On the above facts we are of the opinion that the High Court was justified in altering the sentence from Section 302 IPC to Section 304 Part I IPC. We are also in agreement with the finding of the High Court that sentence of over 4 years'' RI suffered by the respondent meets the ends of justice.
For the reasons stated, this appeal fails hence dismissed."
In the case of Arjun Vs. State of Maharasthra reported in
2012 Cr.L.R. (SC) 506, the Hon''ble Supreme Court gave following
verdict:
"17. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, we are of the view that this case falls under the fourth exception to Section 300 IPC and hence it is just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC and we do so.
We are informed that the appellant is in custody since 30.07.2003. In our view, custodial sentence of 10 years to th e accused-appellant accordingly. The appeal is accordingly disposed of, altering the sentence awarded."
In the case of Sudhakar Vs. State of Maharasthra (supra),
the Hon''ble Supreme Court held as under:
Whatever be the subsequent versions made by P.Ws 1 and 2 before the Court, it came out in evidence that at the time of occurrence there were only three persons, namely, the appellant, P.W.1 and th e deceased. The admission of P.W.1 that the deceased had drinking habit and that whenever he was under the influence of liquor he used to create a ruckus in the house was a factor which had to be necessarily borne in mind while considering the offence alleged and proved against the appellant. Though there is variation in the
version of P.W.1, as between the complaint and her evidence before the Court, going by the evidence available on record, the conclusion of the Trial Court that the appellant was responsible for the death of the deceased is unassailable. Apart from the exclusive presence of the appellant with a weapon in his hand as deposed by P.W.2, the other two persons were the deceased and P.W.1. The said conclusion of the Trial Court as well as that of the High Court cannot be doubted. Further the report of the chemical analysis Exhibits 35 and 36 also disclosed that the blood stained clothes of the appellant matched with the blood group of the deceased which were found on the clothes of the deceased himself. Therefore, there was conclusive proof to hold that it was appellant who was responsible for the single stab injury inflicted upon the deceased with the aid of the knife seized under Exhibit-47. Having reached the above conclusion, the only other question raised was as to whether there is any mitigating circumstance in order to hold that the offence would fall under any of the Exceptions to Section 300 of IPC to state that it was a case of culpable homicide not amounting to murder."
The Hon''ble Supreme Court in the case of Dilip Kumar
Mondal & Anr. Vs. State of West Bengal, reported in 2015 (2) SCC
(Cri.) 318 held as infra: -
"24. In order to invoke Exception 4 to Section 300 Indian Penal Code, it must be further shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The Appellants are said to have inflicted injuries with henso and dau. By a perusal of Ext. P6 post-mortem certificate, it is seen that the deceased sustained one incised injury on the back
which has caused injury to scapula and spinal cord and another incised wound over the back just below the right scapula causing injury to the right lung and pleura. Insofar as the injuries caused to Ranjit Debnath and Santosh Debnath, there is no sufficient evidence as to the alleged injuries caused to them. As far as PW-10- Nikhil Debnath is concerned, he was discharged from the hospital after giving first aid treatment indicating thereby that the injury was not grievous. Considering the injuries, in our view, it cannot be said that the accused have taken undue advantage of the situation. The incident was not premeditated and the scuffle between the parties led to the causing of injuries to the deceased Nripen Debnath and considering the circumstances of the case, in our view, the offence would fall Under Section 300 Indian Penal Code Exception 4 and the conviction of the Appellants is to be modified and altered Under Section 304 Part I IPC."
In the case of Arjun & Anr. Vs. State of Chhattishgarh the
Hon''ble Court held as infra:
"22. The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre- meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken undue advantage or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC .
When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. The conviction of the appellants under Section 302 read with Section 34 IPC is modified under Section 304 Part I IPC. As per the Jail Custody Certificates on record, the appellants have served 9 years 3 months and 13 days as on 2nd March, 2016, which means as on date the appellants have served 9 years 11 months. Taking into account the facts and circumstances in which the offence has been committed, for the modified conviction under Section 304 Part I IPC, the sentence is modified to that of the period already undergone.
In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly. The appellants are ordered to be released forthwith unless required in any other case.
Fee of the learned Amicus is fixed as per Rules."
Upon assessment of entire evidence on record, so also,
specific statement of Dr. Jagdish Jugtawat (PW.25), Medical Jurist,
who conducted the postmortem of body of deceased on
11.06.2008 and prepared postmortem report (Ex.P/29A) in which
he said that only one injury was found upon the body of deceased,
which resulted into death.
The injured eyewitness, Firoz Bahadur (PW.18) was
examined by Dr. P.C. Deepan (PW.21) and as per injury report
(Ex.P/26) prepared by him only one injury was found upon the
chest of injured, which is said to be caused by sharp edged
weapon. Similarly, on 10.06.2008 prior to death of deceased,
Rustam, he was examined by Dr. P.C. Deepan, and as per injury
report (Ex.P/28) of deceased, Rustam, prepared by him only one
injury was recorded upon the body of Rustam on 10.06.2008 at
Primary Health centre, Nadol soon after the occurrence. The
following statement was given by Dr. P.C. Deepan (PW.21), to
prove the injury upon the body of injured, Firoz Bahadur and
Rustam (deceased) who later on died:
"VERNACULAR MATTER OMITTED"
Upon consideration and assessment of entire evidence, more
specifically the statement of injured eyewitness, injury reports,
and opinion of doctor coupled with aforesaid law laid down by the
Hon''ble Supreme Court in the case laws, referred above, we are of
the opinion that finding of guilt recorded by trial court for offence
u/s 302 IPC against accused appellant, Jitendra Joshi and finding
recorded against accused appellant, Ramesh Kumar for offence
u/s 302/34 IPC deserves to be quashed and they are liable to be
held guilty for offence u/s 304 Part-I of IPC and 304 Part-I/34
accordingly.
The accused appellant, Smt. Pawani Kumari @ Pawani has
rightly been convicted for offence under Sections 323 and 341 IPC
upon the evidence on record for causing injury to injured
eyewitness, Smt. Bhanwari Bai, wife of complainant, therefore,
the finding of conviction under Sections 323 and 341 IPC recorded
against her does not require any interference, however, she being
lady and suffered the trial for years together, her sentence can be
reduced with fine.
We have considered the entire evidence and arguments
advanced by learned Public Prosecutor as well as learned counsel
for the complainant in DB Cri. Appeal No.1100/2016, filed by the
State against finding recorded by the trial court against
respondent Kiran @ Kanhaiyalal as well as Smt. Pawani Kumari @
Pawani. In our opinion, as per evidence on record, respondent
Kiran @ Kanhaiyalal did not participate in the incident though he
was present at the place of occurrence. Thus in absence of any
reliable evidence the finding of acquittal given by the trial court
for accused respondent Kiran @ Kanhaiyalal, does not require any
interference. As per evidence on record, Smt. Pawani Kumari @
Pawani, did not inflict any injury to the deceased or injured, Firoz
Bahadur, therefore, held guilty for causing injury to Smt.
Bhanwari Bai for offence u/s 323 and 341 of IPC .
In view of the above discussion and upon the fact that there
is no allegation for causing repeated injury by the accused
appellants and only one injury was caused by the accused
appellant that too without motive or intention to cause death,
therefore, conviction of appellant- Jitendra Joshi, can be altered
from offence under Section 302 IPC to Section 304 Part-I of IPC
looking to nature of allegations levelled against him, and he
deserves to be punished for offence u/s 304 Part-I. The conviction
of accused appellant, Ramesh Kumar deserves to be altered from
offence u/s 302/34 IPC to offence u/s 304 Part-I/34 IPC .
Consequently, the criminal appeal (DB Cri. Appeal
No.116/2016) filed by accused appellants, is partly allowed. The
conviction and sentence passed by learned trial court vide
judgment dated 13.01.2016 against appellant, Jitendra Joshi for
offence under Sections 302 IPC is hereby altered from offence u/s
302 IPC to Section 304 Part-I of IPC and the sentence of life
imprisonment is hereby reduced to 10 years'' R.I. along with a fine
of Rs.50,000/- with default stipulation to undergo two years''
rigorous imprisonment. After deposition of aforesaid fine amount,
the same may be disbursed to legal heirs of deceased, Rustam.
The conviction of appellant Ramesh Kumar for offence under
Sections 302 / 34 IPC is hereby altered from offence u/s 302/34
IPC to Section 304 Part-I/34 of IPC . The accused appellant,
Ramesh Kumar remained in custody from 10.06.2008 to
03.05.2016, therefore, the sentence of life imprisonment passed
against him, is hereby reduced to the period already undergone by
him while maintain the order of fine.
The conviction of appellant, Smt. Pawani Kumari @ Pawani
for offence under Sections 323 and 341 IPC is hereby maintained.
The accused, Smt. Pawani Kumari @ Pawani, remained in custody
from 10.06.2008 to 16.07.2008 and no other incident or case is
reported against her, therefore, the sentence of one year for
offence under Section 323 IPC imposed against her is hereby
reduced to the period already undergone, while maintaining order
of fine. The accused appellants, Ramesh Kumar and Smt. Pawani
Kumari @ Pawani, are on bail, therefore, their bail bonds are
hereby discharged.
In view of above discussion, the appeal filed by the State
being D.B. Cri. Appeal No.1100/2016 is found to be bereft of any
force and, the same is hereby dismissed.
Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellants, Ramesh Kumar and Smt. Pawani Kumari @ Pawani, are directed to forthwith furnish personal bonds in the sum of Rs.20,000/- and a surety bond in the like amount each, before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment or for grant of leave, the appellants, on receipt of notice thereof, shall appear before Hon''ble the Supreme Court.