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2016 DIGILAW 1192 (RAJ)

Gaya Lal S/o Bucha v. State of Rajasthan

2016-08-17

NAVIN SINHA, VIJAY KUMAR VYAS

body2016
JUDGMENT : Vijay Kumar Vyas, J. This criminal appeal has been preferred against the judgment dated 7.4.1983 passed by learned Sessions Judge, Bharatpur in Sessions Case No. 64/1981, whereby appellants have been convicted and sentenced for offences as follows :- Gaya Lal U/s 302 IPC - Life Imprisonment with fine of Rs.3,000/-; in default of payment thereof, to further undergo two years Rigorous Imprisonment. U/s 307 IPC - Five Years' Rigorous Imprisonment with fine of Rs.1,000/-; in default of payment thereof, to further undergo one year's Rigorous Imprisonment. U/s 366 UPC - Five Years' Rigorous Imprisonment with fine of Rs.700/-; in default of payment thereof, to further undergo three months' Rigorous Imprisonment. Hari Kishan U/s 302/34 IPC - Life Imprisonment with fine of Rs.3,000/-; in default of payment thereof, to further undergo two years Rigorous Imprisonment. U/s 307 IPC - Five Years' Rigorous Imprisonment with fine of Rs.1,000/-; in default of payment thereof, to further undergo one year's Rigorous Imprisonment. U/s 366 UPC - Five Years' Rigorous Imprisonment with fine of Rs.700/-; in default of payment thereof, to further undergo three months' Rigorous Imprisonment. Pooran U/s 366 IPC - Five Years' Rigorous Imprisonment with fine of Rs.700/-; in default of payment thereof, to further undergo three months' Rigorous Imprisonment. Nirbhaya U/s 366 IPC - Accused appellant was not punished but ordered that if he furnishes a bond of Rs.3000/- and a surety of the similar amount, he may be bailed out on condition that he will maintain peace and good conduct during three years, he will not commit any offence during this period and will be ready, on breech, to undergo the sentence. All the sentences were ordered to run concurrently. 2. From the record, it reveals that appellant Gaya Lal has died on 16.6.2014. Therefore, the appeal stands abated qua Gaya Lal. 3. Brief facts are that Smt. Mohni D/o Shri Phonda Gujar (PW-1) was married with one Mukhtyar. On death of Mukhtyar, she started living with Tikam, brother of Bheem (PW-7). After death of Tikam, she was living with her father Phonda (PW-4). On 23.10.1980, she went to nearby forest to fetch firewood along with Smt. Ashrafi (PW-2), Atri (PW-9) and some other ladies. On death of Mukhtyar, she started living with Tikam, brother of Bheem (PW-7). After death of Tikam, she was living with her father Phonda (PW-4). On 23.10.1980, she went to nearby forest to fetch firewood along with Smt. Ashrafi (PW-2), Atri (PW-9) and some other ladies. At about 10.00 - 11.00 AM, Atri (PW-9) came back and informed Ramji Lal (PW-12), brother of Mohni and Phonda, father of Mohni that Gaya Lal, Hari Kishan and 2-3 more persons have forcibly taken away Mohni and Ashrafi was following them. Whereupon 50-60 persons of the village including Phonda, father of Mohni went to the house of Gaya Lal. Gaya Lal and Hari Kishan were found standing on terrace of their house, holding guns. They let out Ashrafi but refused to hand over Mohni and confined her in the house. Ramji Lal (PW-12) went to Police Station Hindaun and submitted a written information (Ex.P-6). Meanwhile, Panch and other people of nearby villages also gathered at Gaya Lal's house and held a Panchayat. They asked Gaya Lal, Sujan and others to return Mohni but they refused and said that they have paid Rs.20,000/- to Bheem, brother of Tikam, ex-husband of Mohni and he has executed a document in their favour, so they would keep Mohni as wife of Gaya Lal. Bheem was called immediately and asked about the truth. Bheem denied of taking Rs.20,000/- and executing any document in favour of Gaya Lal with regard to Mohni. Thereupon, members of Panchayat asked Gaya Lal to return Mohni to her father Phonda but he refused and took position holding gun along with his brother Hari Kishan at the terrace of his house. Thereupon, some altercation took place. Gaya Lal fired a gun shot which hit on chest of Hari Singh, present in the gathering, who died on the spot. Gaya Lal and Hari Kishan fired some more shots. When people tried to take away the dead body of Hari Singh, Sujan also fired a gun shot. Pooran and Nirbhaya also moved to the terrace where Gaya Lal and Hari Kishan were standing. Stones were also hurled on the gathering. Somebody from the gathering also fired. When firing by gun and hurling of stones stopped after sometime, gathering took away dead body of Hari Singh. Gaya Lal and others released Mohni. Pooran and Nirbhaya also moved to the terrace where Gaya Lal and Hari Kishan were standing. Stones were also hurled on the gathering. Somebody from the gathering also fired. When firing by gun and hurling of stones stopped after sometime, gathering took away dead body of Hari Singh. Gaya Lal and others released Mohni. Thereafter Harhet (PW-14) went to Police Station Bayana and informed the incident which was recorded in the FIR (Ex.P-11). On the written information (Ex.P-6) given by Ramji Lal, an unnumbered FIR was formally drawn by Police Station Hindaun and forwarded for necessary action to Police Station Bayana, as the place of occurrence was in the area of Police Station Bayana. On information of Harhet (PW-14), FIR No. 318/1980 was registered at Police Station Bayana on the same day i.e. 23.10.1980 at about 12-1 O'clock. 4. Tikam (PW-3), Phhonda (PW-4), Girraj (PW-5), Kishori (PW- 6) and Nawal (PW-8) were there in the gathering when the Panchayat was held. Dr. Anant Narayan Sharma (PW-17) conducted postmortem and prepared report (Ex.P.16). He found as much as 19 gun shot wounds on the dead body of Hari Singh. In his opinion, the cause of death was shock caused by grievous injuries to heart, lungs, liver, kidney (Rt) and internal haemorrhage by pellets. The injuries were sufficient in the ordinary course of nature to cause death. Probable time of death was within 24 hours. He also opined that it cannot be result of one fire only. There must be more than one fire. Pellets were recovered from pericardium, lungs and kidney. The direction of the wounds was from anterior downwards and backward to the right side. 5. Learned counsel for the appellants submit that all the eye witnesses have unequivocally deposed that gun shot was fired by Gaya Lal from terrace of his house. This shot hit on the chest of Hari Singh who was there on the ground floor among the gathering and immediately he fell down. Few witnesses have stated that some more gun shorts were fired but nobody stated that the appellant Hari Kishan fired any shot from his gun. As per medical opinion, the death of the deceased was due to gun shot injuries. Author of the gun shot injury of the deceased has been testified as Gaya Lal only. However, the appeal preferred by Gaya Lal has abated due to his death. 6. As per medical opinion, the death of the deceased was due to gun shot injuries. Author of the gun shot injury of the deceased has been testified as Gaya Lal only. However, the appeal preferred by Gaya Lal has abated due to his death. 6. Learned counsel for the appellants has taken us through the statements of Phonda (PW-4), Kishori (PW-6), Nawal (PW-8) and Harhet (PW-14) and submits that as per these witnesses, appellant Hari Kishan was standing on the terrace of house holding gun along with Gaya Lal but none of them has stated that Hari Kishan fired any shot from his gun. Hari Kishan is brother of Gaya Lal and his presence at his house is natural one. Mere presence is not sufficient to hold him liable for any offence with the help of section 34 IPC. There is no evidence on record to show that any other particular accused fired gun shot. No gun shot injury was suffered by any other person present there. Thus, the prosecution has failed to establish that Hari Kishan had any common intention with co-accused Gaya Lal in committing murder of Hari Singh. Gaya Lal alone was responsible for the murder of Hari Singh. Had Hari Kishan shared common intention with Gaya Lal, he would have also fired. In support, learned counsel for the appellants placed reliance in Baso Prasad and Ors. v. State of Bihar, 2007(2) SCC (CRI.) 567. 7. Learned counsel submits that as per statement of Mohni (PW-1), when she along with other women was returning after picking the firewood, Gaya Lal, Pooran, Nirbhaya and Hari Kishan forcibly took her away to their house and in the scuffle her clothes were torn, firewood was thrown, she got injured and the accused snatched her ornaments. But the prosecution has not produced any evidence to substantiate these facts. There is no medical report of Mohni about injuries. Firewood collected by Mohni and thrown away by the appellants, have not been seized by police. Torn clothes of Mohni have not been seized. The prosecution is completely mum on the fact of snatching away of ornaments. 8. But the prosecution has not produced any evidence to substantiate these facts. There is no medical report of Mohni about injuries. Firewood collected by Mohni and thrown away by the appellants, have not been seized by police. Torn clothes of Mohni have not been seized. The prosecution is completely mum on the fact of snatching away of ornaments. 8. While drawing attention towards statement of Phonda (PW-4), learned counsel submits that though Bheem (PW-7) has denied, yet Phonda (PW-4) has admitted that Gaya Lal stated before the Panchayat that Bheem, brother of deceased Tikam, who was husband of Mohni, took Rs.20,000/- in lieu of permitting Mohni to live with Gaya Lal as his wife had executed a document in favour of Gaya Lal. He further stated that Gaya Lal told the Panchayat that in execution thereof, Ram Singh, brother of Mohni and mother of Mohni themselves brought and left Mohni at his (Gaya Lal) house. Thus, the statement of Phonda (PW-4) corroborates the defence story. 9. Investigating Officer - Mahesh Pareek (PW-18) has admitted in cross examination that one of the person gathered during Panchayat at the house of Gaya Lal, was having a gun and that person was Maharaj Singh. He admits that from investigation, it was revealed that in this incident, Sujan Singh S/o Shri Nirbhaya and Gaya Lal were injured. Sujan Singh succumbed 3-4 days after the incident. He further admits that both – Sujan Singh and Gaya Lal, were brought to Hospital Bayana, where he recorded the statement of Gaya Lal. Learned counsel submits that the prosecution has given no explanation about the injuries caused to the accused Gaya Lal and Sujan Singh. When the prosecution has failed to explain the injuries on the persons of the accused and consequential death of Sujan Singh, the only possible and probable course left open to the court, is to grant benefit of doubt to the appellants. The learned counsel for the appellants placed reliance on Lakshmi Singh and Others v. State of Bihar, (1976) 4 SCC 394 and Bhagwan Sahai and Anr. v. State of Rajasthan, JT 2016 (6) SC 6. 10. The learned counsel for the appellants placed reliance on Lakshmi Singh and Others v. State of Bihar, (1976) 4 SCC 394 and Bhagwan Sahai and Anr. v. State of Rajasthan, JT 2016 (6) SC 6. 10. Learned counsel for the appellants submit that on the basis of Parcha Bayan (Ex.D-15) of Gaya Lal recorded by Investigating Officer Mahesh Pareek (PW-18) at the Hospital Bayana on 23.10.1980 at about 5.00 PM, FIR No. 317/1980 was registered prior to the instant, i.e., FIR No. 318/1980 (Ex.P-11) registered on the information given by Harhet. After investigation, charge-sheet was filed against the complainant party of this matter as well. Nirbhaya Singh (DW-1) was examined in defence and he has exhibited the relevant documents including injury report of Sujan (Ex.D-16), x-ray report (Ex.D-17) of Sujan, postmortem report (Ex.D-18) of Sujan and injury report (Ex.D- 20) of Gaya Lal. The learned counsel for the appellants, with all fairness, also submit that in that cross FIR, accused were acquitted and appeal preferred by State has been dismissed. 11. Learned counsel for the appellants further submits that as per recovery memo (Ex.P-14), a 12 bore gun and 16 empty cartridges were recovered at the instance of accused Hari Kishan from his house and the same were seized and sealed. As per FSL report (Ex.P-24), the gun was appeared to have been fired sometime before receiving in the laboratory. But the recovery and FSL report are of no help to the prosecution because recovery has been made on 21.12.1980, after almost 2 months of the incident. The learned trial court has also not accepted the said recovery and FSL report as incriminating circumstances against the accused. 12. Per contra, learned Additional Advocate General has submitted that there are no discrepancies in the statements rendered by Mohni (PW-1), Ashrafi (PW-2) and Atri (PW-9). All of them have stated that while they were returning after picking firewood from nearby forest to their village, appellants - Hari Kishan, Gaya Lal, Nirbhaya, Pooran and Sujan laced with gun and sticks were hiding on the way. Gaya Lal threw away the firewood collected by Mohni and took hold of her and forcibly taken her away. Ashrafi (PW-2) followed them. Atri (PW-9) and others returned to village and informed Phonda (PW-4) and Ramji Lal (PW-12) – father and brother of Mohni, respectively. There is no reason to disbelieve the ocular testimony of these witnesses. 13. Gaya Lal threw away the firewood collected by Mohni and took hold of her and forcibly taken her away. Ashrafi (PW-2) followed them. Atri (PW-9) and others returned to village and informed Phonda (PW-4) and Ramji Lal (PW-12) – father and brother of Mohni, respectively. There is no reason to disbelieve the ocular testimony of these witnesses. 13. Learned Additional Advocate General further submits that presence of Hari Kishan holding gun along with his brother Gaya Lal depicts his common intention. It is irrelevant as to whether he fired from his gun or not. He has placed reliance on Seena alias Srinivasa v. State of Karnataka, (2014) 13 SCC 545 . 14. It is also submitted that it has been mentioned in First Information Report (Ex.P-11) that during the incident, somebody from gathering also fired. Investigating Officer Mahesh Pareek (PW-18) has explained how Gaya Lal and Sujan from accused side were injured. Learned Additional Advocate General submits that since injuries received by accused persons during the incident have been explained, nothing adverse can be inferred against the prosecution. 15. Learned counsel for the complainant submits that section 34 IPC is applicable even if no injury has been caused by any particular accused. For applying section 34 IPC, it is not necessary to do some overt-act on part of the co-accused. Learned counsel placed reliance in Sachin Jana and Anr. v. State of West Bengal, 2008 II AD (Cr.) (SC) 474. 16. We have considered the submissions made on behalf of all the parties and also perused the material available on record. 17. Phonda (PW-4), father of Mohni has stated that on reaching at the house of accused, he found Gaya Lal, Hari Kishan and Sujan standing on the terrace of the house. Gaya Lal and Hari Kishan were holding guns. He requested from ground floor with folded hands to give back his daughter or else shoot him. Thereupon, Gaya Lal said that we have paid Rs.20,000/- and got document executed from Bheem of village Kapura. On this, the witness sent Smt. Subudhi (PW-10) to bring Bheem there. After an hour, Bheem came there and Panchayat enquired the matter from him. Bheem replied that neither he took rupees, nor he executed any document. Bheem (PW-7) has also deposed the same thing in his statement. On this, the witness sent Smt. Subudhi (PW-10) to bring Bheem there. After an hour, Bheem came there and Panchayat enquired the matter from him. Bheem replied that neither he took rupees, nor he executed any document. Bheem (PW-7) has also deposed the same thing in his statement. There is no evidence available on record to prove that Bheem agreed to send Mohni to live with Gaya Lal as his wife in lieu of Rs.20,000/-. Contrary, Mohni (PW-1), Ashrafi (PW-2) and Atri (PW-9) have stated before the trial court in unequivocal terms that when they were returning to their village from nearby forest after collecting firewood, Gaya Lal, Pooran, Nirbhaya and Hari Kishan forcibly taken away Mohni to their village. While Ashrafi (PW-2) followed them, Atri (PW-9) came back to village and informed about the incident to Phonda and Ramji Lal, father and brother of Mohni, respectively. 18. Accused Gaya Lal has stated in his examination u/s 313 Cr.P.C. that Ram Singh told him that husband of my sister has died and your wife is also died, so we would give our sister to live with you as wife. For this, have a talk with Bheem. The accused stated that he talked with Bheem. Wife of Bheem told him that they would charge rupees. The accused further stated that he had given Rs.20,000/- to Bheem. Document in this respect was executed and thereafter Ram Singh and his mother brought Mohni and left her at his house. This statement of accused Gaya Lal appears to be an afterthought story. No suggestion in this regard has been put before any witness of the prosecution during cross examination. There is no iota of evidence available, indicative of such story. 19. Mohni (PW-1) is the entire fulcrum, victim and cause of the occurrence. The appellants have not alleged any motive for false implication. The entire defence is based on an alleged illegal agreement for a consideration by the deceased appellant Gaya Lal to keep her as his wife against her wishes because her husband was dead. She has been treated as a chattel and not as a human being, a commodity to be purchased. We therefore find no reason to disbelieve her convincing and reliable evidence with regard to her abduction and which led to the incident of firing. She has been treated as a chattel and not as a human being, a commodity to be purchased. We therefore find no reason to disbelieve her convincing and reliable evidence with regard to her abduction and which led to the incident of firing. Her evidence finds corroboration from Asharfi (PW-2) and Atri (PW-9) who were with her at the time of abduction. The fact that the wood that she was carrying, her ornaments and torn clothes may not have been seized during investigation cannot be considered to be such a strong lacunae in investigation as to discredit her oral testimony completely. The faulty investigation cannot inure to the benefit of the appellants. 20. Tikam (PW-3), Phonda (PW-4), Girraj (PW-5), Kishori (PW- 6), Bheem (PW-7), Nawal (PW-8), Kanwal (PW-11) and Harhet (PW-14) have unequivocally stated that Hari Kishan was also standing holding gun along with his brother Gaya Lal on terrace of his house but none of the witnesses said that Hari Kishan fired any shot from his gun. They have said that first gun fire was shot by Gaya Lal which hit on the chest of Hari Singh and he fell down. Thereafter, some more gun fires were made but who fired the later shots, has not been specified by any of these witnesses. As per Dr. Anant Narayan Sharma (PW-17) about 19 wounds of gun shots were found on the dead body, which could not be inflicted by a single gun fire. In his opinion, there must be more than one gun fire. Whosoever may have made gun fire but so far appellant Hari Kishan is concerned, there is positive evidence that he did not fire any gun shot. 21. Presence of Hari Kishan along with main culprit Gaya Lal is undisputed but no overt-act of him has been culled out from evidence of any of the prosecution witnesses. In Sachin Jana's case (supra), the Apex Court has observed in para 10 as follows : "Whereas Brijnandan Prasad alone fired a shot which had hit the deceased, there is no evidence brought on record to show that any other accused did so. No gun shot injury was suffered by any person. The deceased has also suffered only one gun shot injury. No sign of firing was found on the walls or any other part of the building. No cartridge was recovered. No gun shot injury was suffered by any person. The deceased has also suffered only one gun shot injury. No sign of firing was found on the walls or any other part of the building. No cartridge was recovered. Even no other person had suffered any injury by reason of hurling of brick bats. Having regard to the materials brought on records, we are of the opinion that in this case although the prosecution has proved the charge of committing the murder of the deceased, it has failed to establish that the accused had any common intention in relation thereto. Brijnandan Prasad alone was, thus, responsible therefore. Had the other accused shared common intention with Brijnandan Prasad, they would have also fired. No such evidence having been brought on record, benefit of doubt must be extended to the other accused persons." 22. In almost, identical factual matrix, the Apex Court has observed in Baso Prasad's case (supra) which is as under :- "Section 34 has been enacted on the principle of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join the committing the crime. Direct proof of common intention is seldom available and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done individually by himself. The true concept of the section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done individually by himself. As observed in Ashok Kumar v. State of Punjab, (1977) 1 SCC 746 the existence of a common intention amongst the participants in a crime is the essential element for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. " 23. We have also perused the precedent Seena's case (supra) referred by the learned Additional Advocate General. It has been observed by the Apex Court;- 27."On review of the entire evidence on record, we find that the prosecution has failed to prove the presence and participation of Accused 3 in the commission of the offence and, therefore, Accused 3 was rightly acquitted by the High Court of the offence under Section 302 IPC. 24. The deceased appellant Gaya Lal, appellant Hari Kishan and Sujan are stated to have been possessed of guns. Thus the charge under Section 34 IPC. Four empty cartridges and one missed cartridges were found on the terrace by the police immediately after the occurrence. One empty cartridge was found near the body of the deceased. The guns alleged to have been used were however seized two months later on 20.12.1980. No cogent explanation has been furnished by the police why they were not seized immediately after the occurrence especially when the police had already arrived. The possibility that the gun allegedly possessed by appellant Hari Kishan may have changed hands in these two months and used by others cannot be ruled out. The FSL report that they had been used recently therefore becomes irrelevant. Twenty seven cartridges were sent to the FSL along with the guns. Eighteen and Nine empty cartridges were matched with the two guns respectively. These 27 cartridges are not stated to have been seized from the place of occurrence. No explanation has been furnished by the prosecution from where they were seized and why they were sent for matching with the weapons in question. Eighteen and Nine empty cartridges were matched with the two guns respectively. These 27 cartridges are not stated to have been seized from the place of occurrence. No explanation has been furnished by the prosecution from where they were seized and why they were sent for matching with the weapons in question. The Trial Court has therefore rightly disbelieved the FSL report. 25. The mere fact that appellant Hari Kishan may also have been on the terrace with a gun may raise strong suspicion against him of common intention but cannot take the place of proof. If he had a gun there has to be evidence of his having used it if he had common intention. If there is lack of evidence or it is doubtful that he used it to infer common intention will not be safe in the facts of the case. More than one witness has specifically attributed firing at the deceased by appellant Gaya Lal. There was no material for us to hold that the deceased died on account of any firing by appellant Hari Kishan also merely because the Doctor may have opined that he had been fired at more than once. Deceased Sujan is also stated to have been possessed of a gun and had fired. He was injured in the crossfire. The possibility that the deceased may have dies due to repeated fire by deceased appellant Gaya Lal or Sujan and the appellant did not fire at all cannot be completely ruled out. The benefit of doubt in the facts and circumstances of the case therefore has to be given to appellant. 26. In Bikramaditya Singh v. State of Bihar, (2010) 15 SCC 211, it was observed as follows :- "14. According to the prosecution, the appellant was armed with a country-made weapon. The prosecution has been unable to prove that the said appellant has used the same. In our opinion, it is highly improbable that the appellant would have refrained himself from using the lethal weapon which was in his possession. We are of the opinion that the prosecution has not been able to prove beyond all reasonable doubt the role attributed to the appellant and he is entitled to be given the benefit thereof." 27. Reference may usefully be also made to Brijesh Mavi v. State (NCT of Delhi), (2012) 7 SCC 45 , observing as follows:- "36. We are of the opinion that the prosecution has not been able to prove beyond all reasonable doubt the role attributed to the appellant and he is entitled to be given the benefit thereof." 27. Reference may usefully be also made to Brijesh Mavi v. State (NCT of Delhi), (2012) 7 SCC 45 , observing as follows:- "36. Though the above discussions would lead us to the conclusion that the prosecution, in the present case, has succeeded in proving a highly incriminating circumstance against the appellant-accused, yet, we do not consider that it would be wholly safe to hold that the only conclusion that can follow from the aforesaid proved circumstance is that the accused Brijesh is responsible for the death of the deceased that had occurred on 6-6-2001. We have also noticed that the High Court has convicted the appellant-accused under Section 302 as well as Section 460 IPC with the aid of Section 34. In a situation where co-accused Satish had died during the trial and the other co-accused Med Singh had been acquitted by the High Court, the culpability of the present appellant-accused with the aid of Section 34 will be open to serious doubt. Such culpability will have to be determined on the basis of individual overt acts on the part of the appellant-accused for which we do not find any cogent and reliable material on record." 28. In the instant matter, the presence of Hari Kishan beholding a gun along with main culprit Gaya Lal is proved but on the basis of other circumstances as stated herein-above, prosecution has failed to establish that the appellant Hari Kishan participated in the commission of offence in furtherance of any common intention. In this situation, we deem it a fit case to extend benefit of doubt to the appellant Hari Kishan to the extent of charge u/s 302/34 IPC. 29. Phonda (PW-4) has stated in cross examination that he heard that Sujan was killed by a gun fire shot but he did not see him dying. Girraj (PW-5) has also admitted in cross examination that Sujan is dead. He was killed by gun fire shot on the day of the incident. He does not know if Gaya Lal was also hit by pellets. Girraj (PW-5) has also admitted in cross examination that Sujan is dead. He was killed by gun fire shot on the day of the incident. He does not know if Gaya Lal was also hit by pellets. Investigating Officer, Mahesh Pareek (PW-18) has admitted in cross examination that in the same incident, Sujan and Gaya Lal were also injured and a FIR was registered on report (Ex. D-15) of Gaya Lal. Subsequently, Sujan succumbed to the injuries. In FIR (Ex.P-11) itself, it has been mentioned that during scuffle, a gun fire was shot from amongst people gathered there for holding Panchayat. 30. Perusal of the above evidence reveals that injuries found on the body of Sujan and Gaya Lal have not remained unexplained by the prosecution. 31. In conclusion, we find that the prosecution has failed to substantiate the charge of Section 302 with the help of section 34 IPC against the appellant Hari Kishan beyond doubt. Thus, we are unable to concur with the finding with regard to this charge of the learned trial court. Findings of learned trial court with regard to offence u/s 366 IPC are based on correct appreciation of evidence and right application of Law. Nothing convincing could be brought on record by the appellants so as to acquit them from charge of section 366 IPC. 32. So far as the sentence passed by the learned trial court with regard to the offence punishable u/s 366 IPC is concerned, we do not find necessity of indulgence by this court in the matter of appellant Nirbhaya Singh. At the time of examination u/s 313 Cr.P.C., appellant Pooran was of the age about 45 years and Hari Kishan was of about 32 years. The examination u/s 313 Cr.P.C. was held in the year 1983. About 33 years have since been passed and now age of the appellant Pooran must be around 78 years and that of Hari Kishan be around 65 years. As per record, during trial and appeal, appellants Pooran and Hari Kishan have remained in judicial custody for about 3 months and 8 months, respectively. After the deceased was killed and Mohini PW1 attempted to leave the place of her confinement, the two appellants did not cause any obstruction and permitted her to proceed peacefully. As per record, during trial and appeal, appellants Pooran and Hari Kishan have remained in judicial custody for about 3 months and 8 months, respectively. After the deceased was killed and Mohini PW1 attempted to leave the place of her confinement, the two appellants did not cause any obstruction and permitted her to proceed peacefully. Considering their conduct and age as on the day, sending them back to jail to undergo remaining sentence after a lapse about 34 years of the offence, will not serve any purpose much less in the interest of justice. It will be suffice if the sentence with regard to the imprisonment passed by the learned trial court in relation to the offence u/s 366 IPC, is reduced to the period already undergone behind the bars by the appellants Pooran and Hari Kishan. 33. Thus, the appeal preferred by accused appellant Gaya Lal stands abated on his death on 16.6.2014. The conviction and sentence for the offence u/s 302/34 IPC passed by the learned trial court against the appellant Hari Kishan is set aside and he is acquitted of the offence. Conviction and sentence passed for the offence punishable u/s 366 IPC against appellant Nirbhaya is upheld. The order of conviction passed against the appellants Pooran and Hari Kishan by the learned trial court for the offence u/s 366 IPC is upheld but sentence relating to imprisonment, passed by the learned trial court is modified to the extent of the period already undergone in judicial custody by them during trial and appeal. Appeal of G abated-Appeal of others disposed of as above.