Full Judgment
B.R. Arora, J.
1. This appeal is directed against the judgment dated March 30, 1989, passed by the learned Sessions Judge, Bikaner, by which the learned Sessions Judge convicted (he appellant Under Section 304, Part-I, IPC and sentenced each of them to ten years' rigorous imprisonment and a fine of Rs. 200/- and in default of payment of fine to further undergo six months' rigorous imprisonment.
2. The appellants Immamuddin and Aziz Khan alongwith Hakim Khan, Allahabachay and Hanif were tried by the learned Sessions Judge, Bikaner, for offences under Sections 147, 148 and 302/149, IPC. The learned Sessions Judge, after trial, acquitted Hakim, Allahabachay and Hanif for all the offences, with which they were tried, but convicted the present appellants Immamuddin and Aziz Khan for the offence Under Section 304, Part I, IPC and sentenced each of the appellants to ten years' rigorous imprisonment and a fine of Rs. 200/-, and in default of payment of fine to further undergo six months' rigorous imprisonment. It is against this judgment, convicting and sentencing the appellants, that the present appeal has been preferred by the accused-appellants.
3. I have heard the learned Counsel for the appellants as well as the learned Public Prosecutor assistant by the counsel for the complainant and perused the judgment passed by the learned Sessions Judge and the record of the case.
4. The nature of evidence which has been produced by the prosecution consists of the evidence of four eye witnesses, viz., PW 1 Kabul Khan, PW 5 Noor Mohammed and PW 6 Roshan. This evidence of the eye witnesses is sought to be corroborated by the evidence of the MOTBIR witnesses PW 8 Kalu Khan, PW 2 Barkat Ali and PW 3 Manjoohshah. Two witnesses of recoveries have, also, been produced by the prosecution, who are PW 9 Sattar and PW 10 Ibrahim. Then, there is evidence of PW 14 Dr. P.N. Mathur and, also, of police witnesses PW 10 Umrao Singh, PW 11 Hanuman Ram Head Constable, PW 13 Murlidhari, S.H.O. and PW 15 Gyan Prakash. PW 7 Heera Lal is the L.C., who took the photographs. This is all the evidence produced by the prosecution in support of its case. The learned trial Court, while discussing the evidence on record, came to be an eye witness of occurrence. According to the assessment of the learned trial Court, PW 1 Kabul Khan came at the conclusion that PW 1 Kabulkhan cannot be said to occurrence after the beatings were already over. The learned trial Court, also, believed the three eye witnesses, viz., PW 4 Rahim Khan, PW 5 Noor Mohammed and PW 6 Roshan only to the extent of the part played by the present appellants. He did not believe these witnesses so far as the other three accused, namely, Hakim, Allahabachay and Hanif are concerned. He, therefore, acquitted these three accused, but convicted the present appellants Under Section 304, Part-I, IPC. He however, acquitted these two appellants of the offence Under Section 302, IPC.
5. I have gone through the statements of PW 4 Rahim Khan, PW 5 Noor Mohammed and PW 6 Roshan. PW 5 Noor Mohammed has stated that on the fateful day, at about 9.00 A.M. he had gone at the well alongwith his herd of sheep. Roshan, Hakim and Allahabachay were, also, there alongwith their sheep at the well. Deceased Gulamu and his father Kabul were, also, at the well alongwith their herd. When the cattle drunk the water and Kabul and Gulamu were to start alongwith their herd, the five accused persons, including the present two appellants, came from the side of Sadrakhan's house and were armed with BARCHHIS Allabachay and Hakim both caught hold of Gulamu and with the help of the remaining three accused persons, dragged Gulamu towards the house of Sadrakhan and took him into the BAKHAL of Sadrakhan's house and stated beating Gulamu Khan with BARCHHIS, which they were carrying. Kabul raised alarm for help to get his son rescued and, also, requested them not to kill, not to kill'. Then Allahabachay took out pistol from the fold of his CHHADDAR and aimed towards the witnesses that if they proceed further they would be done to death. The accused persons continued beatings to Gulamu. The statement of PW 4 Rahim Khan and PW 6 Roshan are also, in the same nature and they have fully supported the evidence of PW 5 Noor Mohammed. So far as the part played by these two appellants is concerned, there is no contradiction in the statements of these witnesses. The evidence of all these witnesses stands fully corroborated from the testimony of PW 14 Dr. P.N. Mathur. I am not considering the evidence of all these witnesses qua the other three accused persons, viz., Hakim, Allahabachay and Hanif, who have already been acquitted by the learned trial Court and against which any appeal is not pending in this Court and is not before me. Therefore, it is not necessary to consider the evidence of these witnesses qua those accused persons who are acquitted by the learned trial Court. But so far as the evidence of the witnesses qua these two appellants is concerned, the very much lengthy cross-examination has been done by the counsel for the appellant but the testimony of these witnesses could not be shaken inspite of the lengthy cross-examination.
6. The next question, which requires consideration is: what offence has been committed by the accused-appellants? Whether it is an offence Under Section 326, IPC, as argued by the learned Counsel for appellants, or it is an offence Under Section 304, Part-I, IPC under which the learned lower Court has convicted and sentenced the appellants? From the careful reading of the evidence, produced by the prosecution, it can, therefore, be concluded that the accused person inflicted injuries to Gulamu alias Gulam Khan with the knowledge that death will probably be caused and in this view of the matter, I am of the opinion that the learned trial Court was right in convicting the appellants Under Section 304 Part-I, IPC.
7. The last contention raised by the learned Counsel for the appellant is that the sentence awarded by the lerned lower Court to the accused-appellants is very harsh and excessive. The motive in the case has not been proved and the accused are behind the bars for about last four years and, therefore, it would be proper that the sentence passed on the appellants may be reduced to that already undergone by them. Accused Immamuddin is aged about 17 years while according to the estimate of the Court, he is about 20 years. Accused Aziz Khan, according to the statement recorded Under Section 313, Cr. PC, on the date of his examination, was said to be 22 years of age while the estimate of the Court is that he was aged about 24 years. Thus, accused Immamuddin on the date of the incident, was approximately 17 years of age while accused-appellant was approximately of 20 to 21 years of age. Both these appellants were less than 21 years of age on the date of the incident. Both are repenting over their acts and there are no previous convictions to their credit. In these facts and circumstances of the case, I think it proper to reduce the sentence awarded to the appellants from ten years to that of five years each.
8. In the result, the appeal filed by the accused-appellants is partly allowed. The conviction Under Section 304 Part-I, IPC is maintained but however, the substantive sentence of ten years rigorous imprisonment is reduced to that of five years rigorous imprisonment. However, the sentence of fine is maintained.