JUDGMENT S.R. Dongaonkar, J.
1. This appeal by the appellant State, seeks to challenge the judgment of acquittal of respondents Mahadeo and Jagdeo in Sessions Trial No. 47/91, decided on 10-7-1991 by the Additional Sessions Judge, Akola, by which they were acquitted of the charge of offence punishable under Section 302 r/w 34 of Indian Penal Code.
2. Facts leading to the prosecution of the respondents, are that, Deceased Sushila was the wife of P.W. 1 Sukhdeo. The respondents Mahadeo and Jagdeo are his brothers. All the three brothers were residing separately, but in the adjacent houses. P.W. 1 Sukhdeo had three she-goats. He sold two of them for Rs. 1200/ -. The third one was sold, thereafter; to one Rama for Rs. 311/-. It is alleged that the respondents were demanding the amount of this she-goat from him and his deceased wife Sushila. His wife Sushila refused to give that money, so also P.W. 1 Sukhdeo. On 16-10-1990 there was quarrel between him and the respondents on that count. It is alleged that respondents beat him and his wife deceased Sushila in the evening on that day. They poured kerosene on Sushila, however, people assembled there and the matter did not proceed further. Thereafter, P.W. 1 Sukhdeo and his wife Sushila started going to lodge report to the Police Station. They came to Lohara Phata. However, respondent Jagdeo came there and did not allow them to board the bus. He pulled P.W. 1 Sukhdeo from S.T. Bus, as such he could not go, but his wife went to the Police Station. Thereafter, when respondent left the place, he also went to Police Station. His wife deceased Sushila was there. She gave report. Then they returned.
3. On the following day i.e. on 17-10-1990, at about 4.30 p.m. P.W. 1 Sukhdeo had gone to grocery shop to bring tea leaves and Gur. He heard the noise that one lady was burning near the house of respondents. He rushed towards his home. He noticed his wife in flames in front of his house. He poured water on her person. Her flames were extinguished. She was made to lie and he asked her what had happened. It is alleged that she told him that kerosene was poured by respondent Jagdeo on her person and respondent Mahadeo held her and respondent Jagdeo set her on fire. She suffered burn injuries all over the body. It is alleged that incidently police had come to Gram Panchayat office for the purpose of one investigation, so P.W. 1 Sukhdeo rushed to Gram Panchayat Office. He found P.W. 12, P.S.I. Deomurar there. He told him about the incident. Thereafter P.S.I. Deomurar and other persons came to the spot of incident. P.S.I. Demourar asked the deceased as to how it had happened. She told that her brothers-in-law i.e. respondents Mahadeo and Jagdeo picked up quarrel with her on the price of she-goat and respondent Mahadeo caught hold of her and respondent Jagdeo poured kerosene on her person and set fire to her. He took down his report in his own hand writing and took the thumb print of the deceased Sushila on the same (Ex. 41). Thereafter, she was made to sit in the cart and she was taken to main Hospital, Akola, for the treatment. As the Police Station Ural was on the way, she was taken there and on her report, Crime No. 109/90 for the offence under Section 307 r/w 34 of the Indian Penal Code was registered against the respondents. She was later taken to main Hospital, Akola, for her treatment. P.W. 1 Sukhadeo, deceased Sushila's husband, accompanied her to the main Hospital. P.S.I. Deomurar then prepared spot panchanama as per Ex. 21 and seized some articles as per Ex. 9. He recorded statements of some witnesses.
4. It may be stated that P.W. 2 Rajaram Gorle, who was the member of Gram Panchayat and P.W. 3 Janu More, who was another member of Gram Panchayat had been with the P.S.I. Deomurar at the relevant time in the Gram Panchayat Office along with some other police officers including H.C. Dhande. They had also noticed P.W. 1 Sukhdeo coming and telling that his wife was burnt. They had come to the house of P.W. 1 Sukhdeo where they noticed deceased Sushila. P.W. 4 Motiram More is the witness to the quarrel between the deceased Sushila and the respondents. P.W. 5 Sk. Sharafulla is the witness to the spot panehanama. P.W. 7 Dr. Ravindrakumar had examined the patient Sushila as regards her fitness to make dying declaration when Executive Magistrate. P.W. 10 Nathrnal Shamia had come to record her dying declaration. P.W. 10 Nathrnal then recorded dying declaration of the deceased which is at Ex. 24. As the deceased died on 21-10-1990, offence under Section 302 was added to the said crime. The latter part of the investigation was carried out by P.W. 13. P.S.I. Jadhav. He had received C.A. report. After the death, autopsy was conducted on the dead body of deceased Sushila. The relevant P.M. notes are at Ex. 15. The same was conducted by P.W. 9 Dr. Ansari. According to him, deceased had died due to Septicemia with shock due to 91% burn injuries. After due investigation, the charge sheet was submitted against the respondents for the aforesaid offence.
5. After committal of case to the Court of Sessions, learned Additional Sessions Judge, Akola, framed charge against the respondents for the aforesaid offence punishable under Section 302 r/w 34 of Indian Penal Code. The respondents pleaded not guilty to the same. Their defence was that of total denial. According to them, a false case has been filed against them and they had no concern with it. It needs to be mentioned that, in the cross examination, the defence has suggested that it was P.W. 1 Sukhdeo who had himself poured kerosene on her person and set her on fire and he lodged false complaint against the respondents involving them in the said crime.
6. Prosecution has examined in all 13 witnesses to bring home the guilt of the accused. The prosecution case rests on the dying declarations made by the deceased. The first one made to P.W. 1 Sukhdeo, her husband; second to P.S.I. Deomurar when he went to the spot of incident and made inquiry with the deceased as to how it had happened and the last dying declaration was recorded by P.W. 10. Naib Tahsildar, Nathrnal Sharma as per Ex. 24. All these three dying declarations implicate the respondents for the said offence.
7. The learned trial Judge has, however, did not accept the evidence of dying declaration as full proof. According to him, the dying declaration made to P.S.I. Deomurar is too lengthy to believe. According to him, the deceased might not have been medically fit at the time when P.W. 10 Nathrml recorded the dying declaration. According to him, witness to the incident viz. P.W. 4 Motiram did not support the prosecution case and Kusum was not examined by the prosecution, the said dying declarations are untrustworthy. He has further claimed that there was no kerosene or smell of it on the clothes of the Respondent Mahadeo who had allegedly held the deceased when respondent Jagdeo had set fire to her, so the prosecution story is untrustworthy. Learned Sessions Judge has held that there were possibilities of the husband of the deceased Sushila tutoring the deceased for such dying declarations, so the same were totally unreliable. He has held that although deceased Sushila had expired due to burn injuries, it cannot be said that the respondents are authors of the said burn injuries. According to him, prosecution has failed to establish the guilt of the accused and as such he rendered the judgment of acquittal of the respondents.
8. Mr. J.B. Jaiswal, learned Additional Public Prosecutor for appellant State has submitted that the respondents are real brothers. P.W. 1 Sukhdeo and deceased Sushila had quarrel with the respondents on account of price of she-goat and they had lodged report to the Police Station. The said report is at Ex. 41 which clearly depicts the intention of the respondents. The incident was followed by further quarrel between the respondents and the deceased Sushila. At the relevant time, P.W. 1 Sukhdeo had gone out of the house and respondents were there. Their presence is admitted and in fact they were arrested from the spot itself. According to the learned Additional Public Prosecutor, there is immediate report and natural action on the part of P.W. 1 Sukhdeo, the husband of the deceased, to go to Gram Panchayat's office where Police Officers were there. In fact the trial Court should have believed the dying declarations considering the natural conduct of her husband, P.W. I Sukhdeo, so also P.S.I. Deomurar, who came to the spot and enquired about the incident with the deceased. The recording of the statement of P.S.I. Deomurar is quite natural. The said statement does implicate the respondents, so also the further dying declaration recorded by Naib Tahsildar, Nathmal Verma. Therefore, according to him, the prosecution has established the case against the respondents by leading proper and clinching evidence and as the conviction can rest on relying the dying declaration, the learned trial Judge should have convicted the respondents for the offence charged. According to him, the impugned judgment is perverse, as the appreciation of the evidence available on record done by the learned trial Judge is not at all proper and in accordance with the established legal canons and therefore, he submitted that the respondents should be held guilty of the offence charged by allowing this appeal and they be convicted.
9. As against this, Mr. S.K. Sable, learned Counsel for the respondents has submitted that the prosecution has failed to prove the motive for the offence. According to him, the respondent Mahadeo caught hold the deceased and respondent Jagdeo poured kerosene on her person and set her on fire. The clothes of respondent Mahadeo would have smelt of kerosene, the same were not seized. Nobody had seen the incident, and dying declarations to husband; P.S.I. Deomurar and Executive Magistrate Nathmal Verma are suffering from self inconsistency, therefore, according to him, the respondents complicity is not established beyond doubts. He has relied on the observations of the Apex Court in State of Gujarat v. Mohan Bhai Raghbhai Patel and Anr. and the judgment of this Court in 1990 (2) Crimes 574 Shantabai v. State to contend that, as there was no kerosene found on the clothes of respondent Mahadeo, the prosecution case is unreliable and because the dying declarations of the deceased implication the accused are not truthful, the prosecution case has been rightly disbelieved by the learned trial Judge and therefore, the impugned judgment does not call for any interference.
10. As stated above, the learned trial Judge has come to the conclusion that the dying declarations of the deceased Sushila are not reliable and the circumstances which are available on record i.e. not seizing the clothes of the respondent to show that there was any kerosene smell on the same, discrepancy in the statement of P.W. 1 Sukhdeo regarding pouring of kerosene on the person of deceased on earlier occasion by the respondents, do cast doubts on the prosecution case. According to the learned trial Judge, the evidence led by the prosecution as regards dying declarations of the deceased is not at all trustworthy. The crucial question is whether this finding of the trial Judge is correct and legal and whether, the judgment of acquittal, in the circumstances of the case, needs to be overturned.
11. It would be seen from the prosecution evidence, which is available on record, particularly the dying declarations, that P.W. 1 Sukhdeo says that Sushila had told him that kerosene was poured on her person by respondent Jagdeo and respondent Mahadeo was holding her and respondent Jagdeo lit the fire and she suffered burn injuries and therefore, he rushed to Gram Panchayat Office where P.S.I. Deomurar and other persons were there. P.W. 12, P.S.I. Deomurar states that when P.W. 1 Sukhdeo came to the Gram Panchayat office and told about the incident, they rushed to the spot immediately with the villagers who were there. He saw the lady lying on the ground having burn injuries and was in pain and when he enquired as to how it had happened, she told that her brothers-in-law picked up quarrel on the dispute of price of she-goats and respondent Mahadeo caught hold of her and respondent Jagdeo poured kerosene and lit a match stick. He also testified regarding the statement of the deceased as per Ex. 41 upon which the offence was registered. Both these statements are made to the husband and P.S.I. Deomurar immediately after the incident. Both of them implicate the respondents in uniform way.
12. Thereafter in Hospital, P.W. 10, Nathmal Sharma, Naib Tahsidar, who was working as Executive Magistrate has recorded the dying declaration of the deceased at about 11 p.m. He states that Doctor had examined her and reported her to be Conscious, thereafter he started recording dying declaration which took about 20 minutes and thereafter again Doctor examined her and gave certificate that she was in fit conditions to make statement and said dying declaration is at Ex. 24. He also stated that same was recorded in questions and answers form, which was read over to her and she had put her thumb impression on it. On perusal of the said dying declaration, it would be seen that the same is in questions and answers form and it bears the endorsement of the Medical Officer to the effect that the patient was fit to give statement. This dying declaration also clearly implicate the respondents.
13. The evidence of P.W. 7, Dr. Ravindra-kumar Choudhary, clearly shows that at about 11 p.m., Executive Magistrate had come to the Hospital in duty room. He had asked him to check up the patient as to the fitness regarding giving the dying declaration. He examined the patient by name Sushila and found her conscious and fit to make dying declaration. He certified accordingly. He also certified on examination that she was fit to make dying declaration after the dying declaration was over. There is nothing in the cross examination of these two witnesses to show that they have any reason to depose false against the respondents. It is true that the said dying declaration is somewhat lengthy and to a small question; long answer is given. But that fact by itself cannot lead to the conclusion that the deceased was not able to make any dying declaration or she had any reason to make false dying declaration to implicate the respondents.
14. The learned trial Judge has expressed doubts regarding the statement recorded by P.S.I. Deomurar on the ground that it was a very long and detailed dying declaration which is unlikely and the dying declaration recorded by the Naib Tahsildar is disbelieved by him mainly because there was possibility of tutoring.
15. It is pertinent to note that the dying declaration which was recorded by the Executive Magistrate is in similar terms which she made in the statement before the P.S.I. Deomurar. Even if there was ample opportunity to tutor, as observed by the learned trial Judge, in the circumstances of case, there is least possibility of the deceased being tutored to implicate the respondents falsely.
16. It is pertinent to note that learned trial Judge has not accepted the possibility of the husband of the deceased setting fire to her. In fact that was suggested in the cross examination. Despite this, the respondents have failed to make out such case in their statement under Section 313 of Cr.P.C. Further, had it been a fact, as they were present at the time of incident on the spot, the deceased would have shouted for help and they would have come to extinguish the fire. This would have been the occurrence even if it would have been a suicidal fire. If P.W. 1 Sukhdeo would have set fire to her, they would have definitely raised hue & cry, and told P.S.I. Deomurar & others; who had within no time of incident come to spot. In the circumstances of the case, it is impossible to hold that the husband of the deceased would have rushed to the police authorities immediately after the incident, had he set the fire to the deceased or implicate the respondents falsely, had this been an accidental or suicidal fire. The circumstances of the husband calling P.S.I. to the spot immediately, P.S.I. going there and hearing the deceased about the incident, clearly rules out the possibility of husband of deceased committing an offence as well as her suffering from accidental fire due to some other way. This circumstance clearly supports the prosecution case regarding truthfulness of dying declarations.
17. The learned trial Judge has considered the aspect of non finding of the kerosene on the clothes of the respondent to draw the inference adverse to the prosecution as the clothes of the respondent were not seized. Relying on the observations of the Apex Court in State of Gujarat v. Mohanbhai. In the said case, the dying declaration of the deceased was held to be suspicious mainly because no motive was found with the accused to kill the deceased. Further, it was found that the respondent/accused was trying to extinguish the fire and had got burn injuries. Evidently the said case is distinguishable on facts. Here is not the case where no motive is attached with the respondents. In fact the motive is clearly brought on record through the evidence of P.W. 1 Sukhdeo when he stated about the incident of a day prior to this incident. He has specifically stated that the respondents beat himself and his wife on that day in the evening; they tried to go to police station but his wife only could go and he could not, and later on, he also went to Police Station Ural where his wife i.e. deceased lodged the report. The factum of lodging of this report has been established by P.W. 6, H.C. Atmaram Wangekar, who has deposed that on 16-10-1990 he was on duty from 8 p.m. till next day 8 a.m. Sushila had come to Police Station at about 20.30 hours, she told that her husband sold she-goats out of the she-goats owned by them, the accused demanded the amount from it and on refusal, they beat them and threatened. He got down the report which bears his signature and thumb impression of deceased Sushila, being Ex. 30. On that basis, he filed N.C. He produced the extract of the register at Ex. 31. In this report, she clearly implicates the respondents. It is difficult to believe that this is a concocted incident and report; only to provide motive for the incident which occurred on the following day. No doubt, the learned trial Judge has pointed out one discrepancy in the evidence of P.W. 1 Sukhdeo and the report i.e. regarding the respondents pouring kerosene on Sushila. But, as there is clinching evidence on record through the police official regarding lodging of report, it clearly appears that there was animus between the respondents and the deceased, to make respondents to commit an offence.
18. Yet another point raised by the learned trial Judge is that the deceased was found to have 91% burn injuries when her autopsy was conducted. She had died of septicemia with shock due to burn injuries. It was tried to suggest that, because she had so many injuries on her person, she could not have made any dying declaration, much less a longer dying declaration. Again this is an inference; which cannot be concurred. It is clearly brought on record through the evidence of Dr. Ravindrakumar Choudhary that the deceased was in fit condition to make the statement. The dying declarations are consistent with the prosecution case. It is impossible to hold that the deceased was taking advantage of the incident either of accidental burns or of setting fire by her husband to implicate the respondents falsely; who are no other than the brothers of the husband of the deceased. There is nothing on record to suggest that P.W. 7 Dr. Ravindrakumar Choudhary can join complainant and police to depose false against the respondents.
19. The learned trial Judge has also considered the case reported in 1990 (2) Crimes 574 Shantabai v. State, a judgment of this Court, wherein it was held that merely because the deceased had made a statement implicating the accused and the Taluka Magistrate had recorded her statement, that cannot be a guarantee for the truth of the statements which came to be recorded in three dying declarations. It is pertinent to note that unlike that case, here is the case where the husband had rushed to the police authorities who ineidently were in his village. The police had come immediately to the spot. The deceased made similar statement to her husband; P.S.I. and also to Taluka Magistrate. It is true that the dying declaration made to Taluka Magistrate cannot be ipso facto considered as truthful version of incident, but then it has to be considered in the light of attending circumstances available on record.
20. In this case, apparently the respondents have tried to make out a case that the husband of the deceased had poured kerosene on her person and set her on fire. The same is not established, nor the possibility thereof i.e. the earlier quarrel between the husband and wife, or any other reasons making husband to kill the wife are not brought on record.
21. Apart from this, it would be seen that P.W. 2 Rajaram, who was the member of Gram Panchayat had come to the spot along with P.W. 1 Sukhdeo and Police on Sukhdeo's coming lo the Gram Panchayat office and telling that his wife is burnt. No doubt this witness has turned hostile to the prosecution, but he was contradicted with portion marked 'A' and 'B' i.e. Exs. 44 & 45 to the effect that P.W. 1 Sukhdeo came running and in his presence he narrated to the police that his real brothers Mahadeo and Jagdeo (respondents) set her wife on fire by pouring kerosene. There is nothing specific in his evidence to show that there is any possibility of husband of the deceased killing the deceased or she would have suffered accidental burns.
22. In the light of the evidence available on record, we have to see the evidence of P.W. 3 Janu More also who had come with the Police Party and the other persons to the spot after P.W. 1 Sukhdeo came there telling that his wife was burnt. He specifically states that P.S.I., made enquiries with deceased Sushila and she told that she was burnt by Mahadeo and Jagdeo (respondents). The court has put a question to him as to who was P.S.I., he stated that P.S.I. was Deomurar. This would clearly show that the deceased had made a statement before P.S.I. Deomurar that the respondents had burnt the deceased. There is nothing specific in his cross-examination to show that he has any reason to depose false on the say of the police in favour of the prosecution and against the respondents. The only suggestion given to this witness is that he belongs to different party than that of respondent, which is promptly denied by him.
23. P.W. 4 Motiram More has also deposed about the altercations on the price of she-goat between the respondents and Sukhdeo & his wife. P.W. 5 Sk. Sharafulla also states about the enquiries made by P.S.I., with the deceased although he does not say as to what she revealed to the P.S.I. All these circumstances would clearly go to show that deceased had told that respondents were responsible for incident as alleged.
24. Now, the question is whether the view taken by the learned trial Judge is plausible and reasonable so as to disentitle this Court to reverse the impugned judgment.
25. On perusal of the reasons recorded by the learned trial Judge, it does appear that the learned trial Judge has stretched some of the aspects of the matter to draw the adverse inference against the prosecution. To quote a few, the learned trial judge has observed that if really kerosene would have been poured on her, she would have mentioned the same in her complaint and this is material omission by her. Now, it would be seen that this complaint is in respect of earlier incident recorded by P.W. 6, P.H.C. Yadav. It is true that she has not mentioned the same, but that does not make her dying declarations untrustworthy. Similar is the case regarding the respondents being drunk at the time of incident, because deceased Sushila nowhere stated that respondents were drunk at that time, nor there is evidence of others to support that evidence. It is necessary to note the circumstances in which the dying declarations of deceased Sushila are recorded. It is also necessary to bear in mind that this is not a material omission as such. Further, there appears a clear motive; though the learned trial Judge has found that motive to be not sufficient to make respondents to commit this ghastly act, but the fact remains that there was quarrel on earlier day on the same account & report was lodged to Police Station and there is no possibility to implicate the respondents falsely by taking advantage of the incident of burning of the deceased either by accident or even for a moment assuming that she might have been set on fire by her own husband. Some discrepancies here and there are bound to occur, even in the evidence of truthful witnesses. Here is the case where dying declarations are there which implicate the respondents. There is no evidence to suggest that there is any sufficient reason for relevant prosecution witnesses to depose false against the respondents. The respondents are brothers-in-law of the deceased. The Court itself says that suggestion on behalf of respondents that Sukhdeo himself lit the saree of Sushila and then rushed to the Gram Panchayat with a false complaint to implead the respondents is unlikely and therefore, all these circumstances taken together along with the evidence led by the prosecution on record, make the findings and judgment of the learned trial Judge clearly unwarranted. It is not possible to say that it is the plausible and reasonable Judgment. The learned trial Judge has not considered the evidence of dying declaration vis-a-vis the circumstances appearing on record in proper perspective. It is well known that even wrong acquittals diminish the trust of the people in the administration of justice.
26. In this context, it is necessary to refer to the latest decision of the Apex Court in 2007 AIR SCW 1850, Chandrappa and Ors. v. State of Karnataka. The following are the principles laid down regarding the powers of the appellate Court while dealing with the appeals against the order of acquittals.
(1) An appellate Court has full power to review, reappraised and reconsider the evidence upon which the order of acquittal is founded;
(2) Criminal P.C. puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on question of fact and of laws;
(3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances,' distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourished of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further inforced, reaffirmed and strengthened by trial Court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
It has been further held that, Even though in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the instant case, the view taken by the trial Court for acquitting the accused and extending benefit of doubt was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court.
27. Further, it is necessary to refer the judgment of the Apex Court in Swami Prasad v. State of Madhya Pradesh , wherein in paras 26 & 27 following are the observations;
26. There cannot be any doubt whatsoever that a judgment of acquittal should not be interfered with, if two views are possible. This recently been stated in Samghaji Hariba Patil v. State of Karnataka.
27. However, it is equally true that the High Court while entertaining an appeal against a judgment of acquittal would be entitled to consider the entire materials on records for the purpose of analyzing the evidence. There is a presumption that an accused is innocent, unless proved otherwise. When he is acquitted, the said presumption, becomes stronger. But it may not be correct to contend that despite overwhelming evidence available on records, the appellate Court would not interfere with a judgment of acquittal See Chandrappa and Ors. v. State of Karnataka.
28. When the judgment of the learned trial Judge does not appear on sound footing for coming to the conclusion of innocence of the accused, it will have to be interfered with and set aside. To allow such judgment to stand, would lead to miscarriage of justice. In our considered opinion, this is not a case where two views are possible and therefore, the judgment of acquittal should not be overturned. It is, therefore, liable to be set aside.
29. In the result, the Respondents are held guilty of the offence punishable Under Section 302 r/w 34 of the I.P.C.
30. Here the judgment is stopped for hearing Respondents/their counsel on the point of sentence.
31. Heard Mr. S.K. Sable, Advocate, on behalf of respondents on the point of sentence, so also Mr. J.B. Jaiswal, A.P.P. for appellant State.
32. Learned Counsel for the respondents has submitted that the incident is of 1990. The learned trial Judge has acquitted the respondents in 1991 and the appeal was pending for the period of about 15 years. In these circumstances, leniency should be shown to the respondents. As against this, learned A.P.P. is unable to make out any case of extreme penalty of capital punishment.
33. In the circumstance of the case, as respondents are held guilty of the offence punishable under Section 302 r/w 34 of I.P.C., the minimum punishment provided is imprisonment for life. Hence the following order.
34. The appeal is allowed. The judgment of the learned Additional Sessions Judge, Akola, in Sessions Trial No. 47/91 acquitting the respondents is hereby quashed and set aside. The respondents are found guilty & convicted for the offence punishable under Section 302 r/w 34 of I.P.C. and each of them is sentenced to suffer imprisonment for life and to pay fine of Rs. 1,000/- and in default of payment of fine, to suffer further R.I. for 6 months.
35. The bail bonds of the respondents stand cancelled. They are directed to surrender within 15 days to serve the sentence.
36. It is made clear that the respondents are entitled for set off in sentence as per Rules.
37. The fees to be paid by the High Court Legal Services, Sub Committee, Nagpur, to the appointed counsel Mr. S.K. Sable, for the Respondents, is quantified at Rs. 2000/-.