CRA No.823-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRA No.823-SB of 2000 Date of Decision:-25.7.2013 [ENTITY] & Ors. Appellants Versus [ENTITY] Respondent CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.[ENTITY], Advocate with Mr.[ENTITY], Advocate for the appellants. Mr.[ENTITY], AAG Punjab for the State. [ENTITY], J. (ORAL)
Assailing the prosecution version and its evidence in entirety, appellant-convicts [ENTITY] and others (for brevity "the appellants") have preferred the instant appeal to challenge the impugned judgment of conviction and order of sentence dated 8.8.2000, by virtue of which, appellant [ENTITY] was substantively convicted & sentenced to undergo rigorous imprisonment (for short "RI") for a period of five years, to pay a fine of ` 1000/- and in default thereof to further undergo RI for a period of two months, for the commission of offence punishable u/[SECTION] [ACT]; to undergo RI for a period of two years, to pay a fine of ` 500/- and in default thereof to further undergo RI for a period of one month u/[SECTION] [ACT] and to undergo RI for a period of six months u/[SECTION] [ACT]. [ENTITY], appellant [ENTITY] was substantively convicted and sentenced to undergo RI for a period of six months u/[SECTION] [ACT], whereas he & his father appellant [ENTITY] were vicariously convicted and sentenced to undergo RI for a period of five years, to pay a fine of ` 1000/- each and in default thereof to further undergo RI for a period of two months, on accusation of having committed the offence punishable u/[SECTION] [ACT]; to undergo RI for a period of two years, to pay a fine of ` 500/- each and in default thereof to further undergo RI for a period of one month u/[SECTION] [ACT] and to undergo RI for a period of six months u/[SECTION] [ACT]. However, all the sentences were ordered to run concurrently by the trial Court of Addl. Sessions Judge.
2. Tersely, the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, as claimed by the prosecution, are that some dispute had arisen between the complainant party and [ENTITY] with regard to sharing of water for irrigation purposes. Appellant [ENTITY] was stated to have nursing a grudge in his mind in this relevant connection. On 18.8.1998 at about 6 P.M., they were present in the fields. Thereafter, appellant [ENTITY] raised a lalkara and exhorted his sons appellants [ENTITY] and [ENTITY] to teach a lesson to complainant [ENTITY] son of [ENTITY] (PW5) (for brevity "the complainant") and his brother [ENTITY] (PW6). Apprehending danger to their lives, they started running towards their house in order to save them from the clutches of the appellants. However, having covered for about 2/2 acres (Killas), appellant [ENTITY] and his brother appellant [ENTITY] surrounded them in the cotton field of [ENTITY].
3. The case of the prosecution further proceeds that thereafter appellant [ENTITY] caused three knife blows on the chest and right side in the abdomen of the complainant, whereas appellant [ENTITY] gave two dang blows to his brother (PW6) [ENTITY]. In the meantime, his another brother [ENTITY] also reached at the spot and witnessed the occurrence. The appellants were also stated to have caused other injuries to them. They raised noise. Thereafter appellants [ENTITY] & [ENTITY] decamped from the place of occurrence with their respective weapons.
4. Narrating the sequence of events, in all, the prosecution claimed that on 18.8.1998, appellant [ENTITY] has caused knife injuries to the complainant (PW5), whereas appellant [ENTITY] gave lathi blows to [ENTITY] (PW6). They also gave other injuries to them as well. On 23.8.1998, having obtained the opinion of doctor, ASI [ENTITY] (PW7) recorded the statement (Ex.PM) of complainant. He made endorsement (Ex.PM/1) and sent it to police station for registration of the case. In the background of these allegations and in the wake of statement of complainant, the present case was registered against the appellants, by means of FIR No.131 dated 23.8.1998 (Annexure PM/2), on accusation of having committed the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT] by the police of Police Station Bhikhiwind, District Amritsar in the manner depicted here- in-above.
5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants to face the trial for the pointed offences.
6. Having completed all the codal formalities, the appellants were charge-sheeted for the commission of indicated offences by the trial Court. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
7. The prosecution, in order to substantiate the charges framed against the appellants, examined PW4 Dr.[ENTITY], who has medico legally examined the complainant on 20.8.1998 at 8.45 PM, vide MLR (Ex.PH) and found the following injuries on his person:-
1. Incised stab wound 4 cm long now stitched with five stitches intact present on the right side of chest, 22 cm below posterior axillary fold obliquely placed.
2. Incised stab wound 1 cm long with one stitch intact now, present on the back of right side of chest, 6 cm below inferior angle of scapula.
3. Incised stab wound 1.5 cm long with two stitched intact now present on the back of left side of chest, 4 cm below medial border of scapula margins.
4. 12 x 2 cm bluish black bruise present on the front and outer aspect of right upper arm.
5. 14 cm long vertically placed stitched wound 4 cm right to umblicus present on the front of abdomen, 12 stitches intact present.
6. 7 and 2 cm reddish brown leniar abrasion present on the lower 1/3rd of right fore-arm obliquely placed 3 cm apart from one another.
7. 4 cm long reddish brown leniar abrasion present on the left side of abdomen 10 cm away from umblicus at 2.30 O'clock position.
8. He has also noticed that injuries No.4, 6 and 7 were simple in nature. Injuries Nos.1 to 3, 5 and 7 were caused with sharp pointed weapon, whereas injury No.4 was caused with blunt. Injury No.5 was subjected to surgeon's opinion. Probable duration of injuries was within about 2 to 4 days. Injuries No.1 and 3 were dangerous to life, while injury No.2 was simple in nature, vide his opinion (Ex.PK).
9. [ENTITY], on the same day, PW4 has also medico legally examined [ENTITY] (PW6) at 8.10 PM and found the following injuries on his person:-
1. 2 x 0.5 cm lacerated wound present on the middle of forehead just above interior hair line horizontally placed.
2. 4 x 0.5 cm incised wound present in the middle of head 15 cm above right ear pinna, scalp deep.
3. 1 x 0.3 cm reddish brown abrasion present on the middle of forehead 1.5 cm above nasion. Scab formed.
4. 4.5 x 0.75 cm infected incised wound present on the thenar eminence of left hand horizontally placed pus present in the wound, mixed with clotted blood.
5. 5 x 1.5 cm infected incised wound present on the palm of left hand and inner aspect of left little finger, pus present with bloody tinge.
6. 23 x 1.5 cm bluish black bruise present on the back of left side of trunk obliquely placed.
7. 0.5 x 0.3 cm lacerated wound present on the front of left side of chest, 5 cm above nipple at 11.0' clock position skin deep.
10. He has also deposed that injuries No.1 to 5 were referred for x-ray examination. Injuries No.6 & 7 were simple in nature. Injuries No.1, 3, 6 & 7 were caused with blunt weapon, while injuries No.2, 4 and 5 were caused with sharp weapon. Probable duration of injuries was within about 2 to 4 days. On 1.9.1998, he gave the opinion (Ex.PL) after going through MLR (Ex.PJ) and x-ray report that all the injuries were simple in nature.
11. Likewise, PW1 Dr. [ENTITY], who has medico legally examined the complainant, has stated that he was admitted in the hospital with stab wound. He was operated upon by Dr.[ENTITY] and Dr.[ENTITY] on 19.8.1998 and the 2nd operation was performed on 20.8.1998 under his charge with Dr.[ENTITY] and [ENTITY].
According to PW1, the abdomen of complainant was opened and there was a wound in the lateral surface of the liver. PW2 Dr.[ENTITY] has deposed that on police request/application (Ex.PC), he gave opinion (Ex.PC/1) on 22.8.1998 that [ENTITY] was unfit to make statement. Similarly, on police request (Ex.PD), he gave his opinion (Ex.PD/1) on 23.8.1998 that patient was fit to make statement. On the applications (Ex.PE & Ex.PF), the complainant was also declared unfit to make statement by Dr.[ENTITY], vide opinion (Ex.PE/1 & Ex.PF/1) on 19.8.1998 and 21.8.1998. PW3 Dr.[ENTITY] on 20.8.1998, radiologically examined [ENTITY] (PW6) and did not find any fracture on his person, by means of x-ray report (Ex.PG).
12. The next to mention is the testimony of complainant [ENTITY] (PW5), who has maintained that on 18.8.1998 at 6 P.M., the accused present in Court came towards them by raising lalkara. [ENTITY] (appellant) was armed with knife, while appellant [ENTITY] was armed with a dang and [ENTITY] (appellant) was empty handed. At that time, his brother [ENTITY] was also present at the spot. They ran away towards the field of their elder brother [ENTITY]. Accused chased them for 2/2 acres and then they surrounded them. Appellant [ENTITY] gave a knife blow, which hit in the right side of his chest and two knife blows in his stomach. When [ENTITY] came forward to rescue him, then, appellant [ENTITY] gave two dang blows, which hit on his right shoulder. At this, [ENTITY] also came on the spot and witnessed the occurrence. PW6 [ENTITY] has also corroborated the statement of his brother complainant (PW5) on all aspects, as regards the individual participation of the appellants are concerned. [ENTITY], PW7 ASI [ENTITY], Investigating Officer has duly testified his investigation. The prosecution has also placed reliance on rough site plan of place of occurrence (Ex.PN), arrest memo (Ex.PO), rough sketch of dang (Ex.PP) and recovery memos (Ex.PQ & Ex.PR) in documentary evidence.
13. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under [SECTION] [ACT]. However, appellant [ENTITY] has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
"I am innocent. The complainant party had a dispute regarding the boundary wall of their land with [ENTITY] and [ENTITY] etc., who are Amritdhari sikhs and complainant party had a scuffle with [ENTITY] in drunken condition and [ENTITY] gave them injuries to [ENTITY] and [ENTITY] and later on the complainant party after effecting compromise with [ENTITY] falsely implicate us in this case with the connivance of the police and with the maternal uncle of the complainant [ENTITY] who is also in Punjab police and closely related to [ENTITY] I.O. in this case."
14. Likewise, the other appellants have also adopted the same line of defence. The appellants, in order to prove their defence, have examined [ENTITY] as DW1, who has stated that his land is situated at a distance of 8/10 acres from the land of the accused. The land of complainant party is also near his land. [ENTITY] has adjoining land with the land of [ENTITY] (complainant) and [ENTITY] injured (PW6). There used to remain a dispute between [ENTITY] and the complainant party due to common Watt between their land. About one year and 11 months back, [ENTITY] and [ENTITY] had a quarrel. [ENTITY] was also with [ENTITY]. They had suffered minor injuries and later on they got compromised the matter. Compromise was effected in his presence in the fields when 10/12 persons were also present. The complainant party and the accused party are closely related and are sons of uncle. They are not on speaking terms for the last so many years. This is all the oral as well as documentary evidence brought on record by the parties.
15. Taking into consideration the entire evidence on record, the appellants were convicted & sentenced by the trial Court in the manner described here-in-above.
16. The appellants still did not feel satisfied and preferred the instant appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter.
17. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present appeal deserves to be partly accepted in this respect.
18. At the very outset, the prosecution claimed that on 18.8.1998 at about 6 P.M., appellant [ENTITY] initially raised a lalkara and exhorted his sons appellants [ENTITY] & [ENTITY], to teach a lesson to complainant [ENTITY] (PW5) and his brother [ENTITY] (PW6). Thereafter, apprehending danger to their lives, PW5 & PW6 started running towards their house in order to save them from their clutches, but appellants [ENTITY] & [ENTITY] chased and surrounded them after covering a distance of 2/2 acres. Thereafter, they caused injuries to them at the spot. Appellant [ENTITY] did not accompany them. Since appellant [ENTITY] did not participate in the actual occurrence, so, he was vicariously charge-sheeted with the aid of [SECTION] [ACT], which postulates that "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone." Thus, [SECTION] [ACT] would reveal that in order to invoke this provision, the prosecution is required to prove that the act done by appellants [ENTITY] and [ENTITY] was in furtherance of common intention of their father appellant [ENTITY].
19. Meaning thereby, the constructive liability under this provision would arise only if it is proved that he shared common intention to commit a criminal act and actually participated with the main accused in doing such act in furtherance of their common intention. The common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. The common intention as is well known in criminal jurisprudence is the premeditated meeting of mind. [SECTION] will not apply unless it is shown that the act constituting an offence was the kind contemplated by the two persons as a whole and was not foreign to the common intention. There must be prior meeting of minds coupled with overt act by the each accused. A criminal court fastening vicarious liability must satisfy itself as to the prior meeting of minds and participation of the accused in the commission of the actual crime and in the absence of the same, the provision of [SECTION] cannot be invoked.
20. Such thus being the legal position & evidence on record, now the core question, though important that, arises for consideration in this appeal is, as to whether the prosecution has been able to prove that appellant [ENTITY] had actually shared the requisite common intention with his sons appellants [ENTITY] and [ENTITY], so as to held him vicariously liable as contemplated u/[SECTION] [ACT].
21. Having regard to the rival contentions of learned counsel for parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed in this regard.
22. As in the instant case, appellant [ENTITY] only raised a lalkara 2/2 acres away from the spot and was empty handed. Neither any specific role nor any overt-act is attributed to him. He did not accompany his sons appellants [ENTITY] & [ENTITY] to the place of occurrence, which was at a distance of 2 acres. He remained standing at a distance of 2 acres away from the spot. The presence of appellant [ENTITY] at the first instance at a distance of 2/2 acres away from the place of occurrence will not attract a penal provision of [SECTION] [ACT]. His false implication by the complainant in the present case cannot be ruled out due to previous enmity. In that eventuality, to my mind, he cannot possibly be held vicariously liable for the injuries actually inflicted to PW5 & PW6 by his sons appellants [ENTITY] and [ENTITY]. To that extent, the trial Court appears to have slipped into a deep legal error in vicariously convicting appellant [ENTITY] with the aid of [SECTION] [ACT] and thus he deserves the benefit of doubt and acquittal.
23. Be that as it may, ex facie, the argument of learned counsel that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge against appellants [ENTITY] & [ENTITY] as well, is not only devoid of merit but misplaced as well.
24. As is evident from the record that complainant [ENTITY] (PW5) has put the police machinery into motion. He, while appearing as PW5, has, inter-alia, maintained that on 18.8.1998 at about 6 P.M., appellants [ENTITY] and [ENTITY] caused injuries to him and his brother [ENTITY] (PW6) with their respective weapons in the manner indicated here-in-above. PW6, who is also an injured witness, has corroborated the statement of complainant. Instead of reproducing the entire evidence of PW5 and PW6 and in order to avoid the repetition, suffice it to say that they have fully supported the prosecution version on all vital aspect as regards the individual participation of appellants No.1 and 2 in the commission of the crime in question. They were cross- examined at length, but no substantial material could be elicited in their cross examination to dislodge their testimony and impeach their credibility. They gave a vivid and consistent version to support the prosecution story. No motive could possibly be attributed to the injured/eye witnesses as to why they would falsely implicate the appellants in this case. Similarly, PW7 ASI [ENTITY] has duly testified his investigation.
25. Not only that, the ocular version of the prosecution further finds corroboration from the medical evidence of Dr.[ENTITY] (PW1), Dr.[ENTITY] (PW2), Dr.[ENTITY] (PW3) & Dr.[ENTITY] (PW4). They noticed the corresponding injuries on the persons of PW5 and PW6. However, the vague and contradictory defence plea of false implication and mere denial by appellants [ENTITY] and [ENTITY] outrightly deserves to be rejected in the absence of any cogent material on record in this context, particularly, when their participation in the commission of the crime and the prosecution story is duly proved by reliable, ocular, medical and documentary evidence on record, as discussed here-in-above.
26. Therefore, if the entire oral as well as medical and documentary evidence brought on record by the prosecution is put together, then, to my mind, the conclusion is inescapable and irresistible that it stands proved on record that appellants [ENTITY] and [ENTITY] have voluntarily caused and inflicted the injuries on the persons of PW5 and PW6 in the same manner as projected by the prosecution. Hence, the contrary submissions of the learned counsel for appellants "stricto sensu" deserve to be and are hereby repelled under the present set of acceptable evidence and circumstances.
27. Finding no alternative, the learned counsel has fairly acknowledged that in view of the cogent evidence on record, he will not be in a position to contest the conviction of appellants [ENTITY] & [ENTITY] any more. He has no other argument/material/ground, much less cogent, to assail the prosecution version.
28. However, the next contention of learned counsel that if the evidence brought on record by the prosecution is believed to be true as such in its totality and in the absence of definite opinion with regard to (dangerous) nature of injuries, even then, no offence punishable u/[SECTION] [ACT] is made out against appellants [ENTITY] and [ENTITY], has considerable force.
29. What cannot possibly be disputed here is that appellant [ENTITY] was substantively convicted for having committed the offences punishable u/[SECTION], [SECTION] & [SECTION] [ACT], whereas appellant [ENTITY] was vicariously convicted u/[SECTION], [SECTION] & [SECTION] [ACT]. [SECTION] [ACT] envisages that whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished as mentioned therein. [SECTION] [ACT] posits that except in the cases hereinafter expected, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 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 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 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.
30. The conjoint and meaningful reading of these provisions would reveal that in order to invoke the penal provisions of [SECTION] [ACT], the intention or the requisite knowledge to cause death are the essential ingredients of this section. An attempt for purpose of [SECTION] [ACT] should stem from a specific intention to commit murder. That means, an act though sufficient in the ordinary course of nature to cause death, would not always constitute an offence under this Section, if the necessary intention or knowledge on the part of the accused is lacking. Thus, for the purpose of this offence, what is material, is the intention or knowledge and not the consequence of the actual act done for the purpose of carrying out that intention. Intention and knowledge being a man's state of mind, cannot possibly be proved by direct evidence thereof except through his own confession. In the absence of such a confession, intention and knowledge can only be inferred and proved by the surrounding circumstances oozing out of the evidence on record. In the instant case, keeping the ocular, medical and documentary evidence into focus, to me, no offence punishable u/[SECTION] [ACT] is made out against appellants [ENTITY] and [ENTITY] for the following reasons:-
31. As per prosecution version, they, on 18.8.1998 at about 6 P.M., caused injuries to the complainant (PW5), out of which, injuries No.1 & 3 were dangerous to life, for which, he was substantively charge-
sheeted on accusation of having committed the offence punishable u/[SECTION] [ACT]. PW4 Dr.[ENTITY], medico legally examined PW5 on 20.8.1998. PW1 Dr. [ENTITY] maintained that the complainant was operated upon by Doctors [ENTITY], [ENTITY], [ENTITY] and [ENTITY]. The prosecution has neither obtained the medical opinion with regard to (dangerous) nature of injuries No.1 & 3 on the person of PW5 from any of the doctors, who had actually performed his operations nor examined them, for the reasons best known to it. In this manner, the appellants were deprived of their valuable right to cross-examine them to ascertain the nature of injuries, which has caused a great prejudice to their case.
32. Likewise, PW4 Dr. [ENTITY] has not opined on 20.8.1998 when he has initially medico legally examined the complainant (PW5) that injuries No.1 & 3 on his person were dangerous to life. No doubt, on 5.9.1998 i.e. after 15 days thereafter he has very vaguely opined, vide his opinion (Ex.PK) that injuries No.1 & 3 were dangerous to life, but, to my mind, no implicit reliance can be placed on this vague opinion given by PW4. That means, the doctors, who performed the operations, were most important, material & relevant witnesses, who could accurately opine with regard to the nature (dangerous) of injuries No.1 and 3 on the person of PW5. They did not opine at any point of time that these injuries on his person were dangerous to life. In that eventuality, the vague opinion (Ex.PK) with regard to the nature (dangerous) of injuries No.1 and 3 by PW4 pales into insignificance, as regards the offence punishable u/[SECTION] [ACT] is concerned.
33. There is yet another aspect of the matter, which can be viewed entirely from a different angle. PW4 has given his opinion (Ex.PK) without any relevant basis that injuries No.1 & 3 were dangerous to life on the person of complainant (PW5). In order to invoke the penal provisions of [SECTION] [ACT], to me, the prosecution ought to have obtained the clear opinion from the surgeons, who performed the operations. In any case, the medical opinion, should be definite and specific that if the indicated injuries were not timely treated or but for timely medical aid, injuries No.1 & 3 on the person of complainant, were sufficient in the ordinary course of nature to cause death and hence dangerous to life. In the instant case, the vague opinion of PW4 that injuries No.1 and 3 on the person of PW5 were dangerous to life, would be equivalent to "endangering life" and such acts squarely covered within the ambit of [SECTION] [ACT], which is punishable under [SECTION] [ACT]. This matter is no more res integra and is now well settled.
34. An identical question and the distinction between the words "dangerous to life" and "endangering life" came to be determined by a Division Bench of this Court in Atma [ENTITY] v. The [ENTITY], 1982 (2) CLR 496 and it was held as under:-
"Held, that the expression 'dangerous' is an adjective and the expression 'endanger' is verb. An injury which can put life in immediate danger of death would be an injury which can be termed as 'dangerous to life' and, therefore, when a doctor describes an injury as 'dangerous to life', he means an injury which endangers life in term of [SECTION], [ACT], for, it describes the injury 'dangerous to life' only for the purpose of the said clause. He instead of using the expression that this was an injury which 'endangered life' described it as 'dangerous to life', meaning both the time the same thing".
35. [ENTITY], the same view was again reiterated by this Court in cases [ENTITY] and another v. [ENTITY] 2010(3) RCR (Criminal) 395; Tej Ram v. The [ENTITY], 1978 (6) CLR, 76 and [ENTITY] v. Tara [ENTITY], 1987(1) Recent Criminal Reports (Criminal) 184 and it was ruled that injury described by the doctor as 'dangerous to life' alone would not be sufficient and such type of injury/opinion is not the type of the injury as would attract the provisions of [SECTION] [ACT], which envisages an injury sufficient in the ordinary course of nature to cause death.
36. Such injury would fall within the domain of [SECTION] [ACT] and would be punishable under [SECTION] [ACT] and in view of such opinion, charge under [SECTION] [ACT] cannot legally be sustained. The ratio of law laid down in the aforesaid judgments "mutatis- mutandis" is applicable to the facts of this case and is the complete answer to the problem in hand.
37. Therefore, it is held that appellant [ENTITY] did not attempt to commit murder of PW5, but he only intended to and caused the grievous injuries. He cannot possibly be held guilty of an attempt to murder with the offence prescribed under [SECTION] [ACT]. Likewise, appellant [ENTITY] cannot legally be vicariously held liable u/[SECTION] with the aid of [SECTION] [ACT]. The indicated act of these appellants squarely falls within the ambit of [SECTION] [ACT], which is punishable under [SECTION] [ACT]. To this extent, the trial court appears to have gone legally wrong in this relevant direction. Consequently, they are acquitted of the charge framed against them u/[SECTION] and [SECTION] [ACT] respectively. At the same time, appellant [ENTITY] is held guilty and is hereby substantively convicted u/[SECTION] [ACT], whereas appellant [ENTITY] is vicariously convicted u/[SECTION] [ACT]. However, the conviction regarding remaining offences is maintained.
38. Again, it is not a matter of dispute that as per custody certificates, appellant [ENTITY], who was previously substantively convicted and sentenced u/[SECTION]/[SECTION], [SECTION] and [SECTION] [ACT], has already undergone RI for a period of more than two years and two months, whereas appellant [ENTITY], who is now vicariously convicted & sentenced u/[SECTION], [SECTION] and [SECTION] [ACT], has already undergone RI for a period of four months and 21 days. They have already suffered the pangs and agony of protracted trial and appeal for the last about 15 years. There is no history of their previous involvement in any other criminal case. The parties belong to the same village. Moreover, the appellants are ready to pay a sum of ` 60,000/- (` 40,000/- to complainant (PW5) and ` 20,000/- to [ENTITY] (PW6 as compensation, in lieu of the injuries caused to them. Therefore, to my mind, ends of justice would squarely be met and sub-served, if appellants [ENTITY] & [ENTITY] are sentenced to the period already undergone by them.
39. In the light of aforesaid reasons, the instant appeal is partly accepted. The conviction of appellant [ENTITY] u/[SECTION], [SECTION] & [SECTION] [ACT] is set aside. Having extended the benefit of doubt, he is acquitted of the charges framed against him.
40. [ENTITY], the conviction of appellants [ENTITY] & [ENTITY] u/[SECTION] & [SECTION] [ACT] respectively is set aside as well. At the same time, appellant [ENTITY] is held guilty and substantively convicted u/[SECTION] [ACT], whereas appellant [ENTITY] is vicariously convicted u/[SECTION] [ACT]. However, their conviction and sentence of fine of remaining offences is, hereby, maintained. They are sentenced to undergo RI for the period already undergone by them on each counts in the manner discussed here-in-above. They are also directed to pay a sum of ` 40,000/- to [ENTITY] complainant (PW5) and ` 20,000/- to his brother [ENTITY] (PW6) as compensation, in lieu of their injuries within a period of three months, in addition to the amount of fine already awarded by the trial Court on each count. Consequently, the impugned judgment of conviction and order of sentence are accordingly modified to the extent and in the manner depicted here-in-above.
41. However, it is made clear that if appellants [ENTITY] and [ENTITY] fail to pay the indicated compensation to PW5 and PW6, then, the sentences of imprisonment already awarded to them by the trial Court would automatically be deemed to have been revived.
Needless to mention, the necessary compliance and procedural consequences would naturally follow.
([ENTITY]) 25.7.2013 Judge AS Whether to be referred to reporter? Yes/No