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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
Sandeep Mehta, Vinod Kumar Bharwani, JJ.
State, Through PP – Petitioner
Versus
Atmaram, S/o Norang Ram and ors. – Respondents
D.B. Criminal Death Reference No. 1 of 2019, D.B. Criminal Appeal No. 208 of 2019
Decided On : 01-04-2022
Criminal Procedure Code, 1973 - Section 366, 313, 273, 161, 311, 354(3) and 235(2) – Indian Penal Code, 1860 - Sections 302, 307, 452, 447, 323, 147, 148, 149 - Evidence Act, 1872 - Section 27, 32, 62, 6 - Rajasthan Police Rules - Rule 6.22 and 6.23 - Murder Offence – Appeal Against Conviction - In morning Kailash, his father and brother were harvesting crop in their field - Accused and 2-3 unknown persons armed with lathis and axes arrived there on a tractor - Omprakash was holding an axe, whereas other assailants were having lathis, on some of which pointed iron heads were fixed - Immediately on reaching field, these assailants launched an assault and as a result, his father and his brother expired at spot - Assailants assaulted Kailash and poured some strong irritant liquid substance in his eyes, due to which, he completely lost his vision - Thereafter, assailants went away – Held, A bifurcated hearing for conviction and sentencing was a necessary condition laid down in Santosh Bariyar - By conducting hearing for sentencing on same day, Trial court has failed to provide necessary time to appellant to furnish evidence relevant to sentencing and mitigation - In present case, accused appellants have remained in custody for nearly 9 years - For affirming death sentence, court would be required to collect material regarding conduct of accused while in prison to assess whether they have displayed behaviour indicating signs of reformation - Award of extreme penalty of death without undertaking such exercise is impermissible as held by Hon’ble Supreme Court while laying down guidelines reproduced supra - As a consequence, Court hereby turn down Reference and partly accept Appeal - Conviction of accused appellants as recorded by trial court for offences punishable under Sections 302/149, 147, 148, 452, 447 and 323/149 IPC is confirmed, but reference for confirmation of death sentence is turned down - However, conduct of accused, who attacked entire family of Mr. Moman Ram with clear intention of eliminating them owing to long-standing land dispute requires appropriate directions on aspect of sentence of imprisonment - If accused are permitted to roam at large without suffering “imprisonment for life” in its literal meaning, they would in all likelihood eliminate remaining family members as well if set at liberty - Hence, capital punishment awarded to accused appellants by trial court is commuted to life imprisonment, which shall enure till natural life of accused appellants without any possibility of permanent parole/premature release - Fine imposed and default sentence awarded by trial court on each count is maintained - Appeal partly allowed.
JUDGMENT :
Mehta, J.
1. D.B. Criminal Death Reference No.1/2019 has been instituted upon being forwarded by the learned Additional Sessions Judge, Bhadra under Section 366 CrPC for confirmation of the death sentence awarded to the accused-respondents Aatma Ram, Omprakash, Leeladhar and Sharvan Kumar vide judgment dated 01.06.2019 passed in Sessions Case No.14/2014, whereas D.B. Criminal Appeal No.208/2019 has been filed by these accused persons for assailing the above judgment, whereby the trial court convicted and sentenced them as below :
| Name of the accused-appellant | Offence for which convicted | Sentence and fine awarded |
| Aatma Ram Omprakash Leeladhar Sharvan Kumar | Section 302/149 IPC | Death penalty with a fine of Rs.50,000/- and in default of payment of fine, additional rigorous imprisonment of 1 year |
| Section 147 IPC | 2 years’ simple imprisonment and a fine of Rs.1000/- and in default of payment of fine, 15 days’ additional simple imprisonment | |
| Section 148 IPC | 3 years’ simple imprisonment and a fine of Rs.5000/- and in default of payment of fine, 3 month’s additional simple imprisonment | |
| Section 452 IPC 7 | years’ simple imprisonment and a fine of Rs.10,000/- and in default of payment of fine, 6 month’s additional simple imprisonment | |
| Section 447 IPC | 3 months’ simple imprisonment and a fine of Rs.500/- and in default of payment of fine, 7 days’ additional simple imprisonment | |
| Section 323/149 IPC | 1 year’s simple imprisonment and a fine of Rs.1000/- and in default of payment of fine, 15 days’ additional simple imprisonment |
2. The present one is the second round of litigation. Earlier the trial court convicted and sentenced the accused in the same terms by judgment dated 03.11.2017, which was challenged by the accused appellants by filing D.B. Criminal Appeal No.33/2018 in this court, which was allowed vide judgment dated 13.12.2018 and the matter was remanded back to the trial court for de novo trial. A significant flaw was noticed by the court that the statements of material prosecution witnesses had been recorded by the trial court without securing presence of the accused in the dock. After remand, the material witnesses, whose statements were earlier recorded without securing presence of the accused in the proceedings contrary to the mandate of Section 273 CrPC, were examined afresh by the trial court while conducting ‘de novo trial’. The statements of the accused were recorded afresh under Section 313 CrPC and thereafter arguments were heard and the trial court proceeded to pass the judgment dated 01.06.2019 convicting and sentencing the appellant as above.
3. Brief facts relevant and essential for disposal of the reference and the appeal are noted hereinbelow.
4. Mr. Vikrant Sharma (P.W.12), the then SHO, Police Station Gogamedi, claims to have recorded Parcha Bayan (Ex.P/1) of Kailashchand S/o Bhanwar Lal, aged 16 years, resident of Anoopshahar, Police Station Bhadra, District Hanumangarh, at the Community Health Center, Bhadra on 13.10.2013 at 09.35 a.m., wherein it was alleged that family members of Kailash and the accused party consisting of Aatma Ram, Leeladhar, Omprakash and Pawan, sons of Naurang Ram Lakhara, Sharvan son of Leeladhar and Rakesh son of Aatma ram were embroiled in an ongoing land dispute. In the morning of 13.10.2013 at about 05.30-06.00 a.m., Kailash, his father Bhanwar Lal and brother Pankaj were harvesting Gwar crop in their field. The accused Leeladhar, Aatma Ram, Omprakash, Pawan, Shravan, Rakesh and 2-3 unknown persons armed with lathis and axes arrived there on a tractor. Omprakash was holding an axe, whereas the other assailants were having lathis, on some of which pointed iron heads were fixed. Immediately on reaching the field, these assailants launched an assault and as
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