Judgment :-

R.V. Raveendran J.

Petitioners (accused 2 and 1 respectively) and three others were tried for an offence punishable under 304-B of Indian Penal Code (for short, `IPC') relating to the death of Anju Rani, wife of accused No.1 – Jolly Singla. Accused No.2 (Reshma Devi) is the mother of Accused No.1; third and fourth accused are the brothers of accused No.1; and fifth accused is the wife of the third accused. The Sessions Court, Patiala by its judgment dated 13.6.2002 convicted all the five accused under section 304-B of IPC and sentenced them to undergo rigorous imprisonment for seven years and pay a fine of Rs.5,000/- each and in default undergo further imprisonment of eight months. Two appeals were filed against the said judgment - Crl.Appeal No.992-SB of 2002 by accused nos. 1, 2, 3 and 5 and Crl.Appeal No. 1012-SB of 2002 by accused no.4. Both appeals were heard together and disposed of by the Madhya Pradesh High Court by common judgment dated 31.10.2006. The High Court acquitted accused 3, 4 and 5. It dismissed the appeal filed by the accused 1 and 2 (petitioners 2 and 1 herein) and confirmed their conviction and sentence. The High Court while so dismissing the appeal of accused 1 and 2 observed as follows in the operative portion of the judgment:

"Jolly Singla is stated to have already undergone imprisonment and released".

"Accused-appellant Reshma Devi shall surrender to undergo the remaining sentence. Her bail bonds are cancelled."

2. The said judgment was challenged by the second respondent herein (father of the deceased, the complainant). In the first part of the Special Leave Petition, the State was made the first respondent and accused 1, 3 and 5 were shown as respondents 2 to 4. In the second part of the Special Leave Petition, the State was shown as the first respondent and accused no.4 was shown as the second respondent. The second accused (Reshma Devi) was not impleaded as a respondent before this court, presumably because the High Court had affirmed her conviction and sentence and directed her to surrender to undergo the remaining sentence. The appellant before this court had thus no grievance in regard to the High Court judgment in so far as Reshma Devi (accused No.2) was concerned.

3. A Division Bench of this Court presided over by C.K. Thakker J., granted leave and allowed the appeals in part by judgment dated 5.11.2008. This Court held that there was no infirmity in the reasoning of the High Court as also the conclusions therein and therefore, there was no ground to interfere with the order of acquittal recorded in regard to accused 3 to 5. This Court also held that the dismissal of the appeal filed by accused no.1 and accused no.2 by the High Court by confirming the order of conviction and sentence did not call for interference. This Court however further observed :

"In our opinion, however, the High Court was wrong in observing that the respondent no.2 herein (accused no.1) husband of Anju Devi had already undergone the sentence.........When we asked the learned counsel for Respondent 2 as to how the High Court recorded the above finding, he could not give satisfactory reply on what basis it was stated before the High Court that Accused 1 husband had already undergone imprisonment and was released. We, therefore, asked the learned advocate for the State of Punjab to file an affidavit stating the basis of the statement and release of Accused 1. Such affidavit was filed on behalf of the State and the learned Government Pleader stated that it was as per the Order dated 14-8- 2002 issued by the Government of Punjab, Department of Home Affairs and Justice (Jails Branch) that Accused 1 was treated as having undergone imprisonment for seven years."

It then examined the said Government Order dated 14.8.2002 referred in the affidavit and held as follows :

"21. The order was issued by the Government of Punjab in exercise of power conferred by Section 432 of the Code of Criminal Procedure, 1973 and Article