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2006 DIGILAW 367 (RAJ)

Ashok Kumar v. State of Rajasthan

2006-02-03

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-Appellant Ashok Kumar has filed the instant appeal through jail against the Judgment and order dated 17.06.2002 passed by Additional Sessions Judge (Fast Track) Hanumangarh (for short the trial Court hereinafter) in Session Case No. 19 of 2002 whereby the trial Court convicted the appellant for the offence under Section 306, IPC and sentenced him to undergo five years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo one month simple imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal through jail. 2. I have heard learned amicus curiae for the appellant and Public Prosecutor for the State. Perused the Judgment and order of the trial Court as also record of the trial Court. 3. At the outset, learned amicus curiae appearing for the appellant submits that though the sentence awarded to the appellant was suspended by this Court by order dated 13.06.2003, but the appellant failed to file personal bond and surety bonds which is evident from the communication dated 011.2003 received from the trial Court stating therein that the appellant has not filed the personal bond as also the surety bonds and, therefore, according to Amicus Curiae the appellant is in custody for last four years and more than four months. The major portion of the sentence has already been undergone by the appellant, and, therefore, amicus curiae submits that the substantive sentence awarded to the appellant may be reduced to the period of imprisonment already undergone by him. 4. On careful perusal of the record, more particularly the dying declaration Exhibit P-2 made by the deceased wife of appellant as also the post-mortem report Exhibit P-3 and statements of prosecution witnesses PW. 1, PW. 2, PW. 4, PW. 5, PW. 6, and PW. 7 it has been established that the appellant used to give beating and harass his wife deceased and as such abetted to end her life. PW. 1 Surendra Kumar who at the relevant time was posted as Additional Chief Judicial Magistrate, Hanumangarh recorded dying declaration Exhibit P-2. He stated that on receiving a requisition for recording dying declaration, he went to Government Hospital, Hanumangarh Town and recorded the dying declaration of deceased Exhibit P-2 in the presence of Dr. Yogiraj Nainpuriya. PW. 1 Surendra Kumar who at the relevant time was posted as Additional Chief Judicial Magistrate, Hanumangarh recorded dying declaration Exhibit P-2. He stated that on receiving a requisition for recording dying declaration, he went to Government Hospital, Hanumangarh Town and recorded the dying declaration of deceased Exhibit P-2 in the presence of Dr. Yogiraj Nainpuriya. The Doctor present had certified that the deceased was fit to make statement and there is endorsement to this effect on the dying declaration. PW. 2 Dr. Vijay Bhatnagar has proved post-mortem report Exhibit P-3 and stated that the cause of death of the deceased was due to toxemia and shock due to excessive burn. The statement of this witness finds support from the statements of PW. 4 Dr. Amar Sethiya and PW. 5 Dr. Jaspal who stated that on being medically examined, the injured suffered 85% burn injury. The injury was sufficient to cause death in the ordinary course of nature. PW. 7 Nathmal, I.O., has proved the investigation. Thus, in my view the prosecution has succeeded in establishing the case against the appellant beyond reasonable doubt and, therefore, learned amicus curiae rightly did not challenge the conviction of the appellant. However, keeping in view the facts and circumstances of the case and according to learned amicus curiae the appellant has already undergone imprisonment of 4 years and over 4 months out of five years sentence, the ends of justice would be met if the sentence of imprisonment is reduced to the period of imprisonment already undergone by the appellant. 5. Consequently, the appeal is partly allowed. While maintaining the conviction of appellant Ashok Kumar S/o Bhagwandas for the offence under Section 306, IPC, the substantive sentence of imprisonment awarded by the Additional Sessions Judge (Fast Track) Hanumangarh in Sessions Case No. 19/2002 is reduced to the period of imprisonment already undergone by him. The sentence of fine is reduced to Rs. 100/-, in default of payment of fine further to undergo seven days simple imprisonment. The appellant is in jail. He be set at liberty forthwith if not required in any other case on deposit of amount of fine.