The court upheld the conviction under Section 304 Part II IPC but reduced the sentence to the time already served, considering the lengthy trial and circumstances of the case.

ORDER :

ANOOP KUMAR DHAND, J.

1. By way of filing of this appeal, the validity of the impugned judgment dated 07.08.1991 passed by the Additional Sessions Judge, Neemkathana (hereinafter referred to as “the Trial Court”) in Sessions Case No.01/1989 has been questioned by which the Trial Court has convicted the appellants for the offence under Section 304 Part II read with Section 149 IPC and sentenced them to undergo seven years rigorous imprisonment with a fine of Rs.500/- each and in default of payment of fine to further undergo one and a half years additional rigorous imprisonment. They have been also convicted under Section 148 IPC and were sentenced to undergo six months rigorous imprisonment with a fine of Rs.100/-each and in default of payment of fine to further undergo simple imprisonment for 45 days.

2. The brief facts of the case are that an FIR was registered against the appellants under Section 307 IPC wherein allegations were levelled against them that they have beaten the injured Chhoti Devi on 07.05.1988. During the course of investigation, the injured Chhoti Devi expired on 16.05.1988, hence, offences under Section 307 IPC were converted to Section 302 IPC.

3. After completion of the investigation, the charge-sheet was submitted against the appellants for the offences under Sections 302/149 & 148 IPC and thereafter, charges were framed against all the appellants for the above offences. The accused appellants denied the charges and claimed trial.

4. During the course of trial, the prosecution examined as many as 11 witnesses in support of its case and exhibited 17 documents. Thereafter, statements of the appellants were recorded under Section 313 Cr.P.C. wherein they denied their participation in the alleged incident and in defence, statements of four witnesses namely; Chhaju Ram (DW-1), Kanhiaya Lal (DW- 2), Shanker Lal (DW-3) and Kartar (DW-4) were recorded and 14 documents were exhibited.

5. After hearing the arguments of both the sides, the learned Trial Judge vide order dated 07.08.1991, acquitted all the appellants of the charges under Section 302/149 IPC and found them guilty for the offences under Section 304 Part II read with Section 149 IPC and sentenced them accordingly.

6. Aggrieved by the aforesaid judgment, all the appellants have approached this Court by way of filing this appeal under Section 374 Cr.P.C. assailing their conviction and sentence under Section 304 Part II read with Section 149 IPC.

7. During pendency of this appeal, the appellant Nos.1 & 2 passed away and a report in this regard was submitted by the concerned Police Station, after verification of the said fact. Hence, under these circumstances, the instant appeal stands abated qua the deceased-appellants Nos.1 & 2.

8. Learned counsel for the appellants submits that the marriage of the deceased appellant No.1 was solemnised with the deceased appellant No.2 and out from their wedlock, three children were born i.e. appellant Nos.3 to 5. Learned counsel submits that the deceased-Chhoti Devi was married to the brother of the appellant No.2-Bhinwa Ram but after his death she came in Nata with the deceased appellant No.1 and from this wedlock two children Krishan and Ram Singh were begotten. Learned counsel submits that owing to a property dispute, the instant FIR came to be registered against all the appellants that they have committed murder of the deceased Chhoti Devi.

9. Learned counsel submits that in fact no such incident took place and the appellants have been falsely booked in this case simply on the basis of the evidence of family members of the deceased. Learned counsel submits that no independent witness has been examined by the prosecution and looking to the evidence of the prosecution witnesses, their conduct appears to be highly unnatural as they did not make any effort to save the deceased from attack of the assailants. Learned counsel submits that the conduct of the above so-called eye witnesses was so unnatural that the same cannot