Kamlesh Kumar And Another vs State Of U.P.
2021 Latest Caselaw 72 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved on 25.11.2020
 
Delivered on 05.01.2021
 
Court No. - 31
 

 
Case :- CRIMINAL APPEAL No. - 44 of 2000
 
Appellant :- Kamlesh Kumar And Another
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Rajiva Dubey,Sumit Kumar Srivastava
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. This appeal under Section 374 (2) Code of Criminal Procedure, 1973 (hereinafter referred to as Code) has been preferred against the judgment and order dated 20.01.2020, passed by VIth Additional Sessions Judge, Lakhimpur Kheri, in Sessions Trial No.207/1992 arising out of Case Crime No.71/90, Police Station-Phardhan, District-Kheri, whereby the appellants-Kamlesh Kumar and Chotey Lal (hereinafter referred to as appellants) have been convicted and sentenced for the offence under Section 304 (2) read with 34 I.P.C. for four years rigorous imprisonment each.

2. The prosecution case, in brief, is that the appellant-Kamlesh Kumar is son of the appellant-Chotey Lal, resident of Village-Rousa, P.S.-Fardhan, District-Lakhimpur Kheri. The deceased-Ram Avtar was neighbour to the appellants. There was enmity between the deceased-Ram Avtar and the appellants due to land dispute. On 22.05.1990 at about 2:00 p.m., Ram Kishore (P.W.-2), brother of the informant, Ram Kishan (P.W.-1) and Rajesh Kumar, son of Ram Avtar (deceased) had gone to take water from hand pump. At the time of occurrence, Ram Kishore (P.W.-2) was operating the hand pump and Rajesh Kumar was taking water with hollowed palm (Chhullu). Meanwhile, Sunita, daughter of the appellant-Chotey Lal, came there and put soil (dust) in the hollowed palm (Chullu) of Rajesh Kumar and thereafter hot talk started between them. Meanwhile, the appellants-Kamlesh Kumar, Chotey Lal and co-accused-Ram Vilas (since deceased) appeared with lathi and started to beat Rajesh Kumar and Ram Kishore (P.W.-2). Upon hearing a noise, Ram Avtar and Maya Devi (P.W.-3) came there to save Rajesh Kumar and Ram Kishore (P.W.-2) but the appellants and co-accused-Ram Vilas (since deceased) also beaten them. Appellant-Kamlesh Kumar attacked on the head of the deceased-Ram Avtar with lathi, whereby he fell down and became unconscious. The said occurrence was seen by Rama Kant son of Girija Dayal, Sarafat Ali son of Karim and Kanhaiya Lal son of Kunj Bihari, resident of Parsehra Khurd, P.S.-Neemgaon and when so many people raised alarm, the appellants and co-accused-Ram Vilas (since deceased) by threatening fled away from the place of occurrence towards their house.

3. Ram Kishan (P.W.-1) got the first information report (Ext.Ka-1), prepared by one Parmesh Chandra Tiwari and carried the injured persons including Ram Avtar by tractor to police station-Fardan and lodged the report. On the basis of the said information, case crime No.71 of 1990, under Sections-308, 323, 504 and 506 I.P.C. was registered on 22.05.1990 at 3:45 p.m. by Constable-Narendra Nath Tiwari. The injured persons, including the deceased-Ram Avtar were sent for medico legal examination and for treatment to District Hospital, Lakhimpur Kheri where Ram Avtar was admitted due to critical condition but he died after sometime. The medico legal examination of other injured person namely Rajesh Kumar and Ram Kishore (P.W.-2) and Maya Devi (P.W.-3) was conducted by Emergency Medical Officer on 23.05.1990 between 00:30 a.m. to 00:50 a.m. The death information report of the deceased was sent to concerned police station. S.I.-Munna Lal Bajpayee conducted the inquest proceeding and prepared the inquest report (Ext.-Ka-2) in the presence of punch witnesses including Ram Kishan (P.W.-1). The dead body of the deceased was sealed and was sent for post-mortem examination to District Hospital, Lakhimpur Kheri.

4. Dr. Y. B. Chand (P.W.-4) conducted the post-mortem examination of the deceased-Ram Avtar on 23.05.1990 at about 4:00 p.m. and prepared the post-mortem report (Ext.-Ka-3). According to him, the deceased was aged about forty years and had died one day before, rigor mortis passed off from both upper limbs and post-mortem staining was present on back of deceased. According to him further, the following ante mortem injury was found at the time of examination :

"(1) Lacerated would 1 c.m. x ½ cm x bone deep on the right side of the head 4 cm above to right eye brow.

(2) Contused swelling 15 cm x 5 cm on the left side of head and above left ear."

5. According to P.W.-4, clotted blood was present around the bony part of the head of the deceased and both the temporal and parietal as well as occpital bones were fractured in many pieces ; membrane and brain tissues were lacerated. According to him, the said ante mortem injury would have been caused by blunt object i.e. lathi on 22.02.1990 at about 2:00 p.m. and deceased had died due to shock and haemorrhage as a result of ante mortem injuries.

6. After conclusion of the investigation, charge sheet was submitted against the appellants and co-accused-Ram Vilas (since deceased) by Investigating Officer, S.H.O.-Harpal Singh, under Sections-304, 323, 504 & 506 I.P.C., before the concerned Magistrate, who took the cognizance of the offence and since the offence was exclusively triable by the Court of Sessions, after providing the copy of relevant police papers, as required under Section 207 of the Code, committed the case to the Court of Sessions, Lakhimpur Kheri for trial.

7. The learned trial Court after hearing the counsel for both the parties framed charges for the offence under Sections 304, 323, 504 and 506 I.P.C. against the appellants including the co-accused-Ram Vilas (since deceased) from which they denied and claimed for trial.

8. The prosecution in order to prove its case, examined Ram Kishan (P.W.-1), Ram Kishore (P.W.-2), Maya Devi (P.W.-3) and Dr. Y. B. Chand (P.W.-4).

9. During trial, co-accused-Ram Vilas (since deceased) had died and after conclusion of the trial, the statement of the appellants were recorded under Section 313 of the Code wherein they denied the prosecution story as well as evidence produced by the prosecution and stated that they are innocent and had been falsely implicated. They further stated that after purchasing the house and landed property by them from one Ram Chandra, uncle of the informant filed civil suit for the said property, which was decreed in favour of the appellants and due to that enmity, they had been falsely implicated.

10. Learned trial Court after hearing the learned counsel for both the parties and considering the material available on record, convicted and sentenced the appellants as above by the impugned judgment. Aggrieved by the said judgment, the appellants have preferred this appeal.

11. Heard Sri Sumit Kumar Srivastava, learned counsel for the appellants and Sri G. D. Bhatt, learned A.G.A. for the State.

12. Learned counsel for the appellants has submitted that the appellants are innocent and have been falsely implicated. Learned counsel further submitted that the scriber of F.I.R. was not examined by the prosecution. Learned counsel further submitted that alleged place of occurrence is surrounded by the Abadi where so many people were supposed to be present at the place of occurrence but none of the independent witnesses were examined by the prosecution. Learned counsel further submitted that doctor who examined the injuries of Ram avtar (deceased) before his death, injuries of P.W.-2 and P.W.-3, was not examined by the prosecution. Learned counsel further submitted that no allegation has been made against the appellant-Chotey Lal, his son and another co-accused-Ram Vilas (since deceased) to cause any injury to the deceased but the trial Court has convicted the appellant-Chotey Lal also. Learned counsel further submitted that Investigating Officer has also not been produced by the prosecution and, as such, the appellants have been denied their valuable right to cross-examine the Investigating Officer. Learned counsel further submitted that the trial Court, without considering the evidence and material available on record, convicted the appellants in cursory manner and the impugned judgment is illegal and is liable to be set aside.

13. Per Contra, learned A.G.A., vehemently opposing the submissions made by the learned counsel for the appellants, has submitted that the occurrence was happened nearby the house of the prosecution witnesses, as such, the presence of prosecution witnesses, at the place of occurrence, is natural. Learned A.G.A. further submitted that the first information report (Ext.Ka-1) was prepared by one Parmeshchandra Tiwari whose name has also been mentioned as scriber of the written report. Learned A.G.A. further submitted that there is no delay in lodging the F.I.R. as well as in medico legal examination and since the deceased had become unconscious at the time of occurrence and died during his treatment, his ante-mortem injury was proved by Dr. Y. B. Chand (P.W.-4), non examination of other medico legal expert, who had seen the injuries of the deceased, will not affect the prosecution story. Learned A.G.A. further submitted that the prosecution case is supported by Ram Kishan (P.W.-1), Ram Kishore (P.W.-2), brothers of the deceased and Maya Devi (P.W.-3) wife of deceased whose presence at the time of occurrence were natural and reliable and only on the ground that no independent witness was examined by the prosecution, their testimony cannot be disbelieved. Learned A.G.A. further submitted that the judgment passed by trial Court is well reasoned, well discussed and requires no interference, the appeal is liable to be dismissed.

14. I have considered the rival submissions made by learned counsel for both the parties and perused the record.

15. Ram Kishan (P.W.-1) has stated that on the day of occurrence at about 2:00 p.m., Ram Kishore (P.W.-2) and Rajesh Kumar had gone to take water on public hand pump. Ram Kishore (P.W.-2) was operating hand pump and Rajesh Kumar was drinking water with hallowed palm (Chullu) and in the meantime, Sunita, daughter of appellant-Chotey Lal, came there and put dust in the palm (Chullu) of Rajesh Kumar which ensued to hot altercation between them. He further stated that thereafter the appellants-Kamlesh Kumar, Chotey Lal and co-accused-Ram Vilas (since deceased) appeared there with lathi and by hurling abuses, they started to beat Rajesh Kumar and Ram Kishore (P.W.-2). He further stated that his sister-in-law, (bhabhi) Maya Devi and brother-Ram Avtar (deceased) came there to intervene the dispute but all the appellants and other co-accused also beat them. He further stated that the appellant-Kamlesh Kumar had caused injury by lathi on the head of Ram Avtar (deceased), who became unconscious. He further stated that upon hearing the noise, Rama Kant, Srafat Ali and Kanhaiya came there but appellants and co-accused fled away. He further stated that after the occurrence, he carried the injured, by tractor-trolly of one Parmesh Chandra, to police station and got the written information (Ext.-Ka-1) prepared by Parmesh Chandra and after putting his signature, filed at concerned police station. He further stated that injured were carried to hospital for treatment where Ram Avtar (deceased) was admitted but died during his treatment. He further stated that inquest report (Ext.-Ka-2) was prepared in police station.

16. Ram Kishore (P.W.-2), supporting the prosecution story, as stated by Ram Kishan (P.W.-1) has also stated that at the time of occurrence, he was operating the public hand pump ; Rajesh Kumar was drinking water with hallowed palm (Chullu) and meanwhile, daughter of appellant-Chotey Lal came there from toilet and put her dirty palm in the plam of Rajesh Kumar which ensued hot altercation between them. Thereupon appellants-Chotey Lal, Kamlesh and co-accused-Ram Vilas (since deceased) came there and started to beat them by kicks and fits. He further stated that menawhile, his elder brother-Ram Avtar (deceased) and his sister-in-law, Maya Devi (P.W.-3) came there. He further stated that the appellants along with co-accused also beat them. He further stated that co-accused-Ram Vilas (since deceased) had caused injury to him by lathi on his right arm and the appellant-Kamlesh Kumar had caused injury on head of the Ram Avtar (deceased) by lathi. He further stated that on hearing the noise, Ramakant, Parmesh Chandra, Saraft Ali and Kanhaiya also reached at the place of occurrence but the appellants and co-accused fled away from the place of occurrence. Stating that all injured persons were carried to police station by his brother-Ram Kishan (P.W.-1) where information was given and thereafter medico legal examination was also conducted at hospital, he further stated that Ram Avtar had died after 1-1/2 hours.

17. Maya Devi (P.W.-3), corroborating the prosecution story as stated by P.W.-1 and P.W.-2, has stated that on the hearing noise, when she reached with her husband (deceased) at public hand pump, she saw that the appellants-Kamlesh Kumar and Chotey Lal and co-accused-Ram Vilas (since deceased) were beating by lathi to her son Rajesh Kumar and brother-in-law (devar) Ram Kishore (P.W.-2). She further stated that meanwhile her another brother-in-law (devar), Ram Kishan (P.W.-1) also reached there and he was also beaten by the appellants and co-accused-Ram Vilas (since deceased). She further stated that the appellant-Kamlesh Kumar had caused injury on the head of her husband (deceased) by lathi whereby he fell down and became unconscious. She also stated that the appellant-Chotey Lal slapped and beaten her by lathi. She further stated that her brother-in-law got the first information report (Ext.-Ka-1) written by one Parmesh Chandra and carried all injured persons including deceased to concerned police station where information was lodged and their injuries were examined but her husband died during his treatment.

18. Admittedly, in this case, neither Investigating Officer, who investigated the case nor constable who lodged the first information report on the basis of the written report (Ext.-Ka-1), filed by Ram Kishan (P.W.-1), was examined by the prosecution. The alleged occurrence was happended on 22.05.1990 at about 2:00 p.m. as stated by prosecution witnesses i.e. P.W.-1, P.W.-2 and P.W.-3. According to these witnesses, just after the occurrence they reached the concerned police station to lodge the F.I.R. and for medical treatment and the F.I.R. was lodged on same day. Inquest report (Ext.-Ka-2) was prepared on 23.05.1990 at about 12:30 a.m. wherein it had been specifically mentioned that the report of the said occurrence was lodged on 22.05.1990 at about 17:45 p.m. at police station Fardhan, District-Lakhimpur Kheri under Sections-308, 323, 504, 506 I.P.C. Thus, in this case, there is no delay in lodging the F.I.R. So far as the non examination of scriber of F.I.R. is concerned, it is well settled of law that if the prosecution case is supported by eye-witnesses and F.I.R. was lodged without any delay, the non examination of the scriber will not affect the veracity of the prosecution case.

19. So far as the submissions made by learned counsel for the appellants that the place of occurrence is surrounded by Abadi where so many people were supposed to be present at the place of occurrence but none of the independent witnesses were examined, is concerned, it is settled principle of law that testimony of relative witnesses, if their presence on spot are natural and their statement are trustworthy, should be preferred on the testimony of other witness, because relative witnesses do not implicate false person, leaving real culprit and if it is alleged by accused person, they have to show as why the prosecution witness has falsely implicating him by leaving real culprit.

20. It is very pertinent to quote at this very stage the law laid down in Masalti and others vs. State of U. P., AIR 1965 SC 202, wherein Court said as under :

"...............But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.........."

21. Similarly, in Mohabbat vs. State of M.P., (2009) 13 SCC 630, Court held as under :

"...........Relationship is not a factor to affect credibility of a witness. It is more often than not a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the Court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible."

22. Now coming to the facts and circumstances of this case, in the first information report, it has been mentioned that at the time of occurrence, Ram Kishore (P.W.-2) was present with his nephew-Rajesh Kumar and Maya Devi (P.W.-3) and Ram Avtar (deceased) had also appeared to intervene the occurrence. It is also mentioned that hearing the noise, Ramakant, Ram Kishore (P.W.-2), Sarafat Ali and Kanhaiya Lal had also appeared at the place of occurrence and saw the occurrence. Ramakant, Sarafat Ali and kanhaiya Lal were not examined. Ram Kishore (P.W.-2) has stated that these witnesses had been influenced by the appellants for Rs.2000/- and were not willing to give evidence. During trial, Ram Kishan (P.W.-1), Ram Kishore (P.W.-2) and Maya Devi (P.W.-3) were examined as eye-witnesses. They are nearest relative i.e. brother and wife of deceased. Their presence at the place of occurrence cannot be said as unnatural. The occurrence was taken in broad day light near the house of these witnesses as well as appellants. These prosecution witnesses in their cross-examintaion had specifically stated that at the time of occurrence, they reached the place of occurrence and saw the occurrence. Nothing has been come out in their cross-examination which creates any doubt regarding their presence at the place of occurrence. It can not be expected that prosecution witness, leaving the real culprit of broad day light occurrence, would falsely implicate the other person for death of their nearest relative.

23. In my view in the light of law laid down by Hon'ble Supreme Court in Masalti (supra) and Mohabbat (supra), the testimony of prosecution witnesses cannot be discarded only on the ground that they are relative of the deceased and independent witnesses were not examined.

24. So far as the next argument of learned counsel for the appellants that medico legal expert, who examined the injuries of Ram Avtar (deceased) for the first time before his death was not examined, is concerned, Ram Kishan (P.W.-1) had stated that after the occurrence the injured were carried to hospital and Ram Avtar got admitted in hospital. In cross-examination, he had clearly stated that they had carried Ram Avtar to district-Lakhimpur (District headquarter) and reached there at 5:00-6:00 p.m. where the Ram Avtar had died after one hour. Record shows that after death of deceased Ram Avtar, his dead body was sent for post-mortem examination. Dr. V. K. Dixit (P.W.-4) conducted the post-mortem and stated that deceased had died due to head injuries, caused on 22.05.1990 at 2:00 p.m. Thus, the prosecution case, so far it relates with cause of death of deceased-Ram Avtar, is supported with medical evidence and there is force in the submission of learned counsel for appellants.

25. So far as the submission of learned counsel for the appellants regarding non examination of Investigating Officer, is concerned, in this case, the prosecution has failed to examine the Investigating Officer and other police officials. Record shows that application for summoning the Investigating Officer, filed by the prosecution, was rejected by the trial Court. Thus it can not be said that prosecution had knowingly failed to examine the Investigating Officer. It is settled principle of criminal jurisprudence that any particular or specific number of witness is not required to prove the prosecution case. Investigating Officer, in prosecution case, specially based on direct evidence of eyewitness, normally is only formal witness. His examination is necessary only in such cases where material contradiction has been occurred between the statement of witnesses, recorded during trial and their statement, under Section 161 of the Code, recorded by the Investigating Officer or where prosecution has relied on such evidence which was collected, recovered or observed by Investigating Officer himself during investigation and his non examination causes failure of justice or adverse effect to accused. Hon'ble Supreme Court in Behari Prasad and others vs. State of Bihar, 1996 SCC (Crl.) 271, where the prosecution case was in conformity with F.I.R. and medical evidence but Investigating Officer was not examined, has held as under :

"..........In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eyewitnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. These appeals, therefore, fail and are dismissed. The appellants who have been released on bail should be taken into custody to serve out the sentence."

(Emphasis supplied)

26. Coming to the facts and circumstances of this case again, the prosecution case is based on direct ocular evidence of three eye-witnesses, whose presence on the place of occurrence were natural, and is also supported with medical evidence of P.W.-4. During their examination before trial Court, no material contradiction was put by defence counsel from their statement recorded under Section 161 of the Code. Furthermore, Investigating Officer had not collected or recovered any material evidence for prosecution case. Learned counsel for the appellants has failed to show that how the appellants had been prejudiced by non examination of Investigating Officer. Thus, the submission of learned counsel for the appellants has got no force.

27. Now the question arises whether the prosecution has succeeded to prove its case against both the appellants. In this case, the appellants along with another co-accused-Ram Vilas (since deceased) were implicated in the said occurrence. Co-accused-Ram Vilas (since deceased) had died during the trial. In first information report (Ext.-Ka-1) no specific role has been assigned to the appellant-Chhote Lal and co-accused-Ram Vilas (since deceased). It has been alleged that both the appellants including co-accused-Ram Vilas (since deceased) hurled abuses and beaten the Rajesh Kumar and Ram Kishore (P.W.-2) and when Ram Avtar (deceased) and his wife Maya Devi (P.W.-3) tried to intervene the occurrence, they were also beaten by them. Meanwhile, the appellant-Kamlesh Kumar caused fatal injury on the head of the deceased whereupon he fell down and became unconscious. It is also pertinent to note at this juncture that Rajesh Kumar was not examined by the prosecution and doctor who examined the injuries of Rajesh Kumar, Ram Kishore (P.W.-2) and Maya Devi (P.W.-3) was also not examined by the prosecution. Ram Kishan (P.W.-1), (informant) had neither received any injuries nor stated that the appellants and co-accused-Ram Vilas (since deceased) had made any attempt to cause any injury to him. In cross-examination, he has clearly admitted that at the time of occurrence, he was at his house and upon hue and cry when he rushed to place of occurrence, saw that injured after receiving injuries were lying on the road. He has also stated that during the occurrence, fatal injury to deceased was caused by only appellant-Kamlesh Kumar. He also admitted that only one injury was caused on the head of the deceased except that no injury was caused to him (deceased). Ram Kishore (P.W.-2) in examination-in-chief, has not stated that the appellant-Chhotey Lal was carrying lathi. He did not specially state that appellant-Chhotey Lal had caused any injury to any person by lathi. Stating that appellants and co-accused Ram Vilas (since deceased) had beaten him by fits and kicks and co-accused-Ram Vilas had beaten him by lathi, he further stated that only the appellant-Kamlesh Kumar had caused injury on the head of the deceased whereupon he fell down and became unconscious. Maya Devi (P.W.-3), in her examination-in-chief, has stated that only the appellant-Chotely Lal had slapped and beaten by lathi to her. She has not stated on which part of the body the said injury was caused by the appellant-Chotey Lal. Although, she further stated that due to injury she became unconscious but no prosecution witness had stated that Maya Devi (P.W.-3) had received such grievous injury whereby she became unconscious. Thus, it is clear that there is serious contradiction between the statement of prosecution witnesses regarding the role of the appellant-Chotely Lal as no specific role has been assigned to him by the prosecution witnesses to cause injury by lathi. Admittedly, co-accused-Ram Vilas (since deceased) had died during trial. Both the appellants-Chhotey Lal and Kamlesh have been convicted under Section 304-II I.P.C. i.e. only for causing the death of deceased-Ram Avtar. None of them have been convicted and sentenced for offence under Sections-323 or 307 I.P.C. for causing any injuries to prosecution witnesses. The appellant-Chotey Lal is father of the appellant-Kamlesh Kumar and his presence, at the time of occurrence, to participate in the said occurrence and to cause the death of Ram Avtar (deceased) and to cause any injury to other prosecution witnesses is doubtful, particularly, when the prosecution has failed to prove the medico legal evidence (injury report) of injured prosecution witnesses. Thus, the prosecution has failed to prove its case beyond reasonable doubt against the appellant-Chotey Lal but in view of the facts and circumstances of this case, the prosecution has succeeded to prove its case against the appellant-Kamlesh Kumar who has been convicted and sentenced by the trial Court for offence under Section 304 (II) I.P.C. Thus, the conviction of the appellant-Kamlesh Kumar, requires no interference.

28. Now coming to the question of sentence, whether the sentence passed by the trial Court is just proper, or not ?.

29. Learned counsel for the appellant has submitted that the appellant-Kamlesh Kumar has no criminal history and at the time of occurrence, he was just 25 years old and according to prosecution story, only one injury was caused to the deceased by the appellant-Kamlesh Kumar. Learned counsel further submitted that the occurrence was happened in the year 1990 i.e. thirty years ago and at present, he is aged about 55 years and therefore, a lenient view is required to be adopted in awarding the sentence to the appellant-Kamlesh Kumar.

30. The appellant-Kamlesh Kumar has been convicted for the offence under Section 304-II and sentenced for four years rigorous imprisonment.

31. From perusal of Section 304 II I.P.C., it transpires that accused convicted under Section 304 II I.P.C. may be sentenced for a term which may extend to ten years or with a fine or both.

32. In India no guidelines has been provided by the Legislature for determination of quantum of sentence. Judiciary, especially Hon'ble Supreme Court, has evolved the theory of proportionality in awarding the sentence, subject to minimum sentence provided by the Legislature. There are several factors, although not exhaustive, which may be taken into consideration for awarding quantum of sentence, for example; gravity and seriousness of offence, age and numbers of offenders, age and number of deceased including injured persons, nature of weapons used in offence, educational and social background of accused, nature of injuries caused to deceased or injured persons, criminal antecedents of accused, motive, cause or intention of offence, weapons carried by deceased or injured persons if any, injuries caused to accused person or any member of his side if any, and duration of pendency of trial or appeal.

33. It is settled principle of sentencing and penology that undue sympathy in awarding the sentence with accused is not required. The object of sentencing in criminal law should be to protect the society and also to deter the criminals by awarding appropriate sentence. In this regard Hon'ble Supreme Court has observed in State of Madhya Pradesh vs. Saleem @ Chamaru, AIR 2005 SC 3996 which is as under:-

"The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal''.

34. In Ramashraya Chakravarti vs. State of Madhya Pradesh AIR 1976 SC 392, reducing the sentence of young accused, aged about 30 years, convicted for offence under Section 409 I.P.C., from two years to one year, has observed as under:-

"In judging the adequacy of a sentence the nature of the offence, the. circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts. Trial courts in this country already over-burdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value. Through out the world humanitarianism is permeating into penology and the courts are expected to discharge their appropriate roles"

35. Admittedly, the occurrence was happened thirty years back in the year 1990 and in the statement, recorded in the year 2000, under Section 313 of the Code, the age of the appellant-Kamlesh Kumar was recorded as thirty five years. In addition to above, the appellant-Kamlesh Kumar, at the time of occurrence, had suddenly appeared without any premeditation with lathi and had caused only one blow on the head of the deceased. Learned counsel further submitted that the appellant-Kamlesh Kumar has no criminal history.

36. Looking into the facts and circumstances of the case, I am of the view that the conviction of the appellant-Kamlesh Kumar for the offence under Section 304-II requires no interference and is accordingly maintained. But in view of the law laid down by Hon'ble Supreme Court in Saleem @ Chamaru (supra) and Ramashraya (supra), the sentence of four years awarded to the appellant-Kamlesh Kumar for the said offence is reduced to a rigorous imprisonment of three years.

37. The appellant-Kamlesh Kumar is on bail. His bail bond is cancelled and sureties are discharged. He is directed to surrender forthwith before the concerned lower Court to serve out the aforesaid sentence. The period of sentence under gone by the appellant, shall be set off as per the provision of Section 428 of the Code.

38. So far as the appellant-Chhotey Lal is concerned, the prosecution has failed to prove its case beyond reasonable doubt against him, therefore, he is acquitted. The impugned judgment so far it relates with conviction of appellant-Chhotey Lal is set aside. His bail bond is cancelled and sureties are discharged.

39. Keeping in view the provision of Section 437-A of the Code, appellant-Chhotey Lal is hereby directed forthwith to furnish a personal bond of a sum of Rs.20,000/- each and two reliable sureties each of the like amount before the trial Court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against this judgment or for grant of leave, he, on receipt of notice thereof, shall appear before Hon'ble Supreme Court.

40. Appeal is partly allowed and the impugned judgment and order is modified to above extent.

41. Let a copy of this judgment along with lower court record be sent to the concerned trial Court for necessary information and compliance.

Order Date :- 05.01.2021

Mahesh