1 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR (1) S.B. Criminal Appeal No. 49/2008 Shivraj @ Shoraj Versus The State of Rajasthan With (2) S.B. Criminal Appeal No. 1890/2007 Ramphool Versus The State of Rajasthan Date of Judgment: 24.05.2010 Hon'ble Mr. Narendra Kumar Jain,J. Mr. Rinesh Gupta & Mr. Vijayant Nirwan, for the appellant-Shivraj @ Shoraj. Mr. Kamlakar Sharma, for the appellant-Ram Phool. Mr. J.R. Bijarnia, Public Prosecutor, for the State. Heard learned counsel for the parties. 2. Since both the appeals are directed against impugned judgment dated 09.10.2007 passed by Additional Sessions Judge(Fast Track) No. 1, Bundi in Sessions Case No. 15/2007, therefore, they are being disposed of by this common judgment. 3. Appellants Ramphool and Shivraj @ Shoraj both sons of Laxminarain were 2 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State convicted and sentenced by the learned trial court as under: “Under Section 341 IPC: 1 month's simple imprisonment and fine of Rs. 250/-, in default of payment of fine to further undergo 15 days simple imprisonment. Under Section 323 IPC: 3 months' simple imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo 1 month's simple imprisonment. Under Section 304 Pt. II, IPC: 10 years' rigorous imprisonment and fine of Rs. 5,000/-, in default of payment of fine to further undergo six months' rigorous imprisonment.” 4. Learned counsel for the appellants initially argued the case at length on merits, but during the course of arguments, they frankly contended that from the evidence on record, particularly the statements of eye-witnesses, offences under Sections 304 Pt. II, 341, 323 IPC against the appellants are made out, but their sentence of imprisonment is excessive and the same is liable to be reduced. They further contended that Appellant Ramphool has already remained in jail for 4 years and 8 months and Appellant Shivraj @ Shoraj has remained in jail for 3 years 3 months and 27 days. Therefore, sentence of imprisonment awarded 3 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State by the learned trial court against each appellant be reduced to a period of sentence of imprisonment already undergone by them. 5. Learned Public Prosecutor contended that in view of the fact that the appellants have not challenged their conviction, therefore, their prayer to reduce the sentence of imprisonment to a period of imprisonment already undergone by them may be considered sympathetically. 6. I have considered the submissions of learned counsel for the parties and examined the impugned judgment as well as record of the trial court. 7. Exhibit P-11, a written report was lodged by P.W.6, Dharmendra Singh at Police Station Dehi, Distrit Bundi in respect of incident took place on that day at about 6.30 to 7.00 P.M. wherein he, his father Nand Singh and Ms. Rajesh sustained injuries. Nand Singh was admitted to hospital at Dei and was medically examined at Dei on 23.09.2005 itself, but his medical report of Hospital at Dei has not been placed on record by the prosecution. Later on, he was referred to Government Hospital, Bundi and was medically examined, but his medical 4 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State report of Bundi is also not on record. Subsequently, in last, he was referred to Government Hospital, Kota, where he succumbed to his injuries and his Post Mortem Report Exhibit P-12 is available on record. Although there is an allegation that accused persons inflicted injuries by Kulhadi on the person of deceased Nand Singh, but from the medical report, it is not clear whether injuries sustained by deceased were inflicted by sharp edged weapon or by blunt object. Therefore, learned trial court acquitted accused from the charge under Section 302 IPC and convicted the accused-appellants under Section 304 Pt. II, IPC. 8. I have examined the statements of injured eye-witnesses i.e. P.W.5 Miss Rajesh D/o Nand Singh; P.W.6 Dharmendra Singh S/o Nand Singh; and other eye witnesses, namely P.W.1 Gopal Singh S/o. Dhan Singh, P.W.8 Bablu @ Ranveer S/o. Parvat Singh; P.W.9 Brij Bai W/o. Gopal Singh; and P.W.11 Smt. Ucchav Kanwar W/o. Nand Singh deceased and I find that learned counsel for the appellants rightly did not press the appeal of both the appellants on merits. In my view learned trial court was fully justified in convicting 5 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State the accused-appellants for the offences under Section 304 Pt. II, 341 and 323 IPC. 9. So far as submission of learned counsel for the appellant about reduction of sentence of imprisonment awarded by the trial court is concerned, there is no dispute between both the parties that appellant Ramphool has remained in jail for 4 years and 8 months and appellant Shivraj @ Shoraj has remained in jail for 3 years 3 months and 27 days. 10. It is relevant to mentioned that in the same incident, the accused persons also sustained number of injuries and injury report of accused Ramphool is available on record as Exhibit D-7 and accused Shivraj @ Shoraj as Exhibit D-8. It is a case of single injury, which proved to be fatal on the person of the deceased and from the medical evidence it is not known whether the said injury was inflicted by blunt object or sharp edged weapon. 11. The Hon'ble Apex Court in Pooran Singh Vs. State of U.P. reported in AIR 1981 SC 1638 reduced the sentence of imprisonment awarded under Section 304 Pt. II, IPC to a period of 18½ months already undergone by the 6 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State appellant therein. 12. Similarly, in Kuldeep Singh Vs. State of Haryana, reported in 1996 Cri.L.J. 1884 (SC), the Hon'ble Apex Court reduced the sentence of imprisonment to a period of 2 years already undergone by the accused for offence under Section 304 Pt. II, IPC. 13. Hon'ble Supreme Court in State of Punjab Vs. Mohinder Singh, reported in 1993 Cri.L.J. 3903(SC) reduced the sentence of rigorous imprisonment of 5 years under section 304 Pt. II, IPC to a period of sentence of imprisonment of 2½ months alerady undergone by the accused. 14. Recently, the Hon'ble Apex Court in Md. Monir Alam Vs. State of Bihar, reported in AIR 2010 SC 698 granted the benefit of Section 4 of Probation of Offenders Act, 1958 to the accused for offence under Section 304 Pt. II, and 323 IPC. 15. Offence under Section 304 Pt. II, IPC is punishable with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine or with both. NO minimum sentence has been prescribed. In these circumstances, I think it fit and proper that ends of justice would 7 SB Cr. Appeal No. 49/2008 Shivraj @ Shoraj Vs State & SB Cr. Appeal No. 1890/2007 Ram Phool Vs. State meet, in case the sentence of imprisonment awarded by learned trial court is reduced to a period of imprisonment already undergone by the appellants i.e. in the case of Appellant Ramphool to a period 4 years and 8 months and in the case of Appellant Shivraj @ Shoraj to a period of 3 years 3 months and 27 days. 16. Consequently, both the appeals of appellants are partly allowed. Their conviction and sentence under Sections 341 and 323 IPC is maintained. However, while upholding their conviction under Section 304 Pt. II, IPC, their sentence of imprisonment is reduced to a period of imprisonment already undergone by them. Appellants are in judicial custody, therefore, they are directed to be released forthwith, in case their custody is not required in any other case. (Narendra Kumar Jain),J. Manoj