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For the Appellant Milind Kumar, advocate
For the Respondent: Sarad Kumar Singhania advocate
This appeal takes exception to the judgment and order dated on 5th November 0077 passed by the High Court of judicature for Rajasthan at Jodhpur in DB criminal whereby the conviction of the respondent under section 302 of the Indian penal code has been converted into one under section 326 IPC and the considerable sentences awarded therefore is reduced only to the period already gone by the accused At the outset the learned counsel for the appellant - the state had made it enough clear that the state was pursuing this appeal only against the accused of the restoration of his conviction under section 302 of the IPC and to award him sentenced of life imprisonment
Stating briefly five accused were named in the First Information Report registered on 14th August 1981 at PS Nagar about an incident at village Lowa Khurd this case set out in the stated FIR as noted by the trial court.
On 14th August 1981 at 9:30 pm complainant injured magical lodged an oral report with the officer in charge of police station Nagpur to the effect that he has four fields at village Howard Khurd amongst which one field is situated about a distance of 1 km away from the village the complaining further stated that for going to that field they have to use an old way passing through the fields of Heera Chagna and Jeevan however, this way is not recorded in the government
Based on the complaint, the investigation was started for offenses punishable under section 147, 148, 149, 323, 307, and 302 IPC the case was committed to the sessions court by the chief judicial magistrate in February 1982 which was numbered the case of a session No after a full-fledged trial in which fourteen prosecution witnesses came to be examined the trial court on extensive analysis of the evidence on record
Hence the accused Mehram son of change is hereby held guilty of committing an offense under section 148, 302, 324/149 Indian penal code
Accused Ram Nivas is therefore held guilty of committing offenses under section 147, 323, 324/149 of the Indian Penal Code and accused person Heera Lal, Ramnarayan under section 323 324/149 of the Indian penal code and accused Baksharam is therefore convicted under section 149, 324 IPC
Accused person Heeraram, Ramnarayan Ramnivad, and Baksharam are not found guilty of committing an offense under section 302 and 302/149 of the Indian penal code.
As regard, the accused Mehram came to be convicted for offenses punishable under sections 148, 302,324/149 of the IPC and sentenced to undergo life imprisonment with a fine of Rs 100 for the offense punishable under section 302 six months simple imprisonment with a fine of Rs 100 for an offense punishable under section 148 IPC and six months simple imprisonment with fine of Rs 100
All the five accused preferred appeal before the High Court being DB criminal appeal. The appeal filed by Ram Nivas, haram ram, and Lexa ram came to be partly allowed and their conviction under section 149 IPC was set aside but under section 323, 324, 147, and 148 IPC the conviction was maintained by the high court awarded sentence of the period already undergone but the accused and directed him to pay compensation of Rs 50,000 to the next of kin of the deceased Bhura ram.
the accused Mehram is justified in the contending that it is open to the said accused to challenge the finding order of conviction under section 326/148 IPC recorded against him in the appeal filed by the state attacking the challenged judgment of the High Court that being the settled legal position as expounded in Chandrakant Patil, Sumer Singh and Ramanand including the section 377(3) of the CrPC which predicts that the appeal filed against the sentence on the ground of his inadequacy and the accused might plead for his acquittal or the reduction of his sentence
Indeed the trial courts finding of guilt recorded against the accused Mehram is unexceptionable however on the nature of the offense under section 302 to one under section 326 cannot be tolerated both on facts and in law
The learned counsel for the accused was at pains to persuade that the said accused is now about 7075 years of age and at this distance of time it may not be right to send him back to jail
Taking an overall view of the matter it is of the considered opinion that in this case accused must be rewarded the sentence of ten years of imprisonment of simple imprisonment and he must pay compensation of rs 50,000/- to the next kin of the deceased
Accordingly, this appeal is partly allowed the challenged judgment of the high court and that of the trial court are changed with the conviction for the offense. The bail bonds are canceled and the accused is directed to surrender with six weeks from the date of which lockdown in the country due to pandemic COVID -19 included in the state of Rajasthan is relaxed to undergo the remaining sentenced period.
The appeal is disposed of in the above terms.
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