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2003 DIGILAW 832 (PNJ)

Shyam Sunder v. State of Haryana

2003-05-28

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Shayam Sunder and Raj Kishan, the two appellants-herein stand convicted under Sections 306/452 Indian Penal Code vide impugned judgment dated October 3, 1991, passed by the learned Additional Sessions Judge, Rewari and have been sentenced as under : U/S 306 Indian Penal Code RI for three years and to pay a fine of Rs. 500/-, in default of payment of fine to suffer further RI for three months. U/S 452 Indian Penal Code RI for two years and to pay a fine of Rs. 300/-, in default of payment of fine to suffer further RI for two months. 2. The substantive sentences ere, however, ordered to run concurrently. In short the case of prosecution is that on 11.3.1990 at about 6-20 PM, Daya Wanti wife of Jagdish Lal was taken to Civil Hospital Rewari with some burn injuries. The medical officer, who attended to her, immediately, sent ruqqa to the concerned police and at about 7-20 PM on the same day, after obtaining the opinion of the doctor, the statement of Daya Wanti (Ex PL) was recorded. In her statement, she stated that her husband Jagdish Lal was having some dispute with his elder brother Kishan Lal over portion of the house and agricultural land and he had also some dispute with Raj Kishan, (the appellant-herein). It is alleged that on 11.3.1990 around 1-30 PM Shyam Sunder alias Pappu appellant came to the house of the complainant under the influence of liquor and started abusing her. At that time, her husband was not present. She asked Shyam Sunder not to hurl filthy abuses. Shyam Sunder returned to his house. After sometime, the complainant and her mother-in-law Smt. Bhiranwa Bai went to the house of the Kishan Lal and told him and his wife Krishna Devi that their son had been abusing them for the last about 15 days and even on that day also he had abused Daya Wanti. After lodging the protest, they returned to their house. At about 5-30 PM on the same day, both the appellants came to their house and started abusing Daya Wanti. Her mother-in-law requested them no to do so. Both the appellants grappled with her and then Shyam Sunder appellant poured kerosene oil upon Daya Wanti and set her clothes on fire. She raised an alarm, which attracted her husband. At about 5-30 PM on the same day, both the appellants came to their house and started abusing Daya Wanti. Her mother-in-law requested them no to do so. Both the appellants grappled with her and then Shyam Sunder appellant poured kerosene oil upon Daya Wanti and set her clothes on fire. She raised an alarm, which attracted her husband. On seeing him, both the appellants ran away from the spot. On these allegations, both the appellants were booked in this case. 3. After recording evidence, the learned trial Court came to the conclusion that the prosecution story to the effect that the present appellants had set Daya Wanti on fire after sprinkling kerosene oil on her clothes, does not stand established from the evidence but Daya Wanti in fact had committed suicide by burning herself on account of the torture and humiliation being cause to her by the appellants. Consequently, both the appellants were acquitted of the charge under Section 302 Indian Penal Code and instead were convicted under Section 306 Indian Penal Code. Hence this appeal. 4. I have heard Mr. Harsh Kinra, learned counsel for the appellants and Mr. Sanjiv Sheokand, learned Assistant Advocate General, Haryana. With their assistance I have gone through the entire record. 5. The main argument raised by Mr. Kinra is that the appellants were not charged under Section 306 Indian Penal Code by the trial Court and the charge framed against them was under section 302 Indian Penal Code only, for which they stand acquitted and no appeal has been filed by the State in this regard. He then contended that Section 222 Criminal Procedure Code entitles a Court to convict a person of an offence, which is minor in comparison to one for which he is tried and that Section 306 Indian Penal Code cannot be said to be a minor offence as compared to Section 302 Indian Penal Code within the meaning of Section 222 Criminal Procedure Code He then contended that both the offences are distinct and are of different categories. The basic ingredient of an offence under Section 302 Indian Penal Code is homicidal death, whereas those of Section 306 Indian Penal Code there has to be a suicidal death and abetment thereof. For this reason, the conviction of the appellants under Section 306 Indian Penal Code is bad, Mr. Kinra so contended. The basic ingredient of an offence under Section 302 Indian Penal Code is homicidal death, whereas those of Section 306 Indian Penal Code there has to be a suicidal death and abetment thereof. For this reason, the conviction of the appellants under Section 306 Indian Penal Code is bad, Mr. Kinra so contended. In support of his arguments, he has placed reliance upon two judgments in Sangarboina Sreenu v. State of Andhra Pradesh, 1997(3) RCC 710 and Shamnsaheb M. Multani v. State of Karnataka, 2001(1) RCR(Crl.) 617. 6. Mr. Kinra has not assailed the impugned judgment of conviction so far as section 452 Indian Penal Code is concerned and prays that a lenient view should be taken so far as quantum of sentence is concerned. In this regard, the learned counsel submits that by now Raj Kishan appellant is of 75 years and Shyam Sunder is 34 years of age. He then contends that both the appellants remained in custody for about one month during trial. 7. So far as the conviction under Section 306 Indian Penal Code is concerned, learned counsel for the State has not been able to refute the submissions made by learned counsel for the appellants. The judgments is Sangarboina Sreenu and Shamnsaheb M. Multanis cases (supra) squarely cover the case of the appellants. The conviction of the appellants under Section 306 Indian Penal Code is consequently set-aside. 8. Although the conviction under Section 452 Indian Penal Code has not been assailed by learned counsel for the appellants yet after closely scrutinizing the evidence on record, I also find no illegality, in the impugned judgment, which may call for interference. The conviction of the appellants thus under Section 452 Indian Penal Code is affirmed. 9. So far as quantum of sentence is concerned, there is force in the submissions made by learned counsel for the appellants. The case relates to the year 1990. The appellants have already suffered the rigor of protracted trial for about 13 years. In my view, the ends of justice would be adequately met if the substantive sentence imposed upon the appellants under Section 452 Indian Penal Code is reduced to the period already undergone by them. It is ordered accordingly. 10. Resultantly, the appeal stands partly allowed. The appellants are acquitted of the charge under Section 306 Indian Penal Code. In my view, the ends of justice would be adequately met if the substantive sentence imposed upon the appellants under Section 452 Indian Penal Code is reduced to the period already undergone by them. It is ordered accordingly. 10. Resultantly, the appeal stands partly allowed. The appellants are acquitted of the charge under Section 306 Indian Penal Code. However, their conviction is maintained under Section 452 Indian Penal Code, with the modification in sentence part, as indicated above. Appeal partly allowed.