HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R. Reserved On:- 20.09.2019
Delivered On:- 05.11.2019
Case :- CRIMINAL APPEAL – 2642 of 2009
Appellant :- Lutawan
Respondent :- State Of U.P.
Counsel for Appellant :- S.K. Pandey, Gaurav Kumar Shukla, Mirza Ali Zulfiquar
Counsel for Respondent :- Govt. Advocate
Hon’ble Siddharth, J.
1. Heard Sri Gaurav Kumar Shukla, learned counsel for the appellant, Sri Nishant Singh, learned A.G.A. for the State and perused the lower court record.
2. This criminal appeal is directed against the judgment and order of conviction dated 25.04.2009 passed by Additional Sessions Judge, Fast Track Court, No. 3, Basti in Special Sessions Trial No. 12 of 1995, whereby appellant has been convicted and sentenced for committing offence under Section 304-I/Section34 I.P.C. for a period of 10 year rigorous imprisonment and a fine of Rs. 10,000/- and under Section 3(2)(V) of S.C./SectionS.T. Act for a period of 10 years rigorous imprisonment and a fine of Rs. 20,000/- along with default clauses.
3. The prosecution case is that the first informant, Dhobi, gave an application dated 24.04.1995 before Kotwali, Khalilabad stating that his wheat crop was harvested and kept; that its thrashing was required and he went to the machine of appellant, Lutawan, with 4-5 bundles of wheat on 23.04.1995 at about 10:00 p.m along with his father and brother, Pramod; that appellant and his son, Tara Lal Nishad, stated that first you pay the cost of thrashing of wheat and only then they will do the same; that first informant stated that he will pay the cost and asked them to do his work; that appellant got annoyed and after abusing the informant and others accompanying him, exhorted his son, Tara Lal Nishad, who caused injury by sariya (rod) on his brother, Pramod, and he got injured; that informant took Pramod to Medical College, Gorakhpur, for treatment and he died in the Medical College, Gorakhpur; that after post-mortem of the deceased he went to the police station and lodged the report at 24.04.1995 at 20:30 hours; that the aforesaid F.I.R. was registered as Case Crime No. 140 of 1995, under Section 304 I.P.C. and Section 3(2)(V) of S.C./SectionS.T. Act.
4. Co-accused, Tara Lal Nishad, was declared juvenile during the trial and he was sent for trial before the Juvenile Justice Board. The appellant was tried by the Sessions Court.
5. The appellant was charged for offences under Section 304-I/Section34 I.P.C. and Section 3(2)(V) of S.C./SectionS.T. Act to which the appellant denied and sought trial.
6. Before the trial court the first informant was examined as P.W.-1; Ram Pyare, father of the deceased, was examined as P.W.-2; Sri Ram, eye-witness was examined as P.W.-3; Vinay Krishna Biswas, the doctor, who first treated the injured proved that he first attended the injured and stitched his wound; that P.W.5, the Dr. Prakash Chandra, was examined as P.W.-5, and he proved that on 24.04.1995, he conducted medical examination of the deceased at 06:50 a.m; P.W.-6, Dr. A.K. Srivastava, who conducted the post-mortem of the deceased, proved the ante-mortem injury of the deceased. He found stitched wound of 10 cm on left parietal bone of the deceased and found his parietal bone fractured. Another wound of 3 cm x 2 cm was found on left cheek of the deceased. He found blood clot in the brain membrane of the deceased. He testified that the death of the deceased took place due to shock and hemorrhage and he stated that such an injury can be caused by falling on a hard object, collision or assault; P.W.-7, Vijay Bahadur Mall, the scribe of F.I.R., was examined and he proved the F.I.R. lodged by the informant; that the Investigating Officer, Ram Krishna, was examined as P.W.-8, who proved the investigation record and charge sheet submitted before the court.
7. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. who stated that he was not present at the scene of occurrence, when the incident took place and he has no knowledge about the same; that he admitted that he accompanied the deceased, Pramod, to the doctor and the injury was caused by the handle of the machine; that he denied the other allegations and stated that the statements of the witnesses against him are false; that he further stated that only to get compensation from the government false case has been lodged against him by the informant.
8. D.W.-1, Ram Bhajan, stated that on the date of incident the informant and others came with their wheat crop on the machine of the appellant and he informed them that appellant has gone to take his dinner; that despite his instructions to the contrary, Pramod, started the machine and the handle of the engine got struck in the machine; that as a result of the shock from the machine Pramod could not maintain his balance and fell down and suffered head injury; that on hearing the noise the appellant came and took Pramod to the doctor along with his family members; that in his cross-examination he admitted that he used to work as labour on daily wages on the machine of the appellant but he denied any influence of the appellant on his statement.
9. The witnesses of fact, P.W.-1, P.W.-2 and P.W.-3, have proved the prosecution case to the hilt. This court has gone through their evidence and has found that there is nothing in their statements which may suggest that the witnesses have not deposed truly before the trial court. The findings recorded by the trial court regarding consideration of their evidence does not suffers from any error. The trial court has also considered the statements of the other witnesses correctly and has arrived at correct conclusion of the guilt of the appellant. It has found that the delay in the F.I.R. has been properly explained by the prosecution. Cogent findings have been recorded regarding the arguments raised on behalf of the appellant before the court below, like non-recovery of rod allegedly used for causing injury to the deceased, non-examination of the eye-witnesses shown in the FIR, absence of appellant from the scene of occurrence as stated by D.W.-1, non-production of original injury report, etc. The trial court has found that the prosecution has succeeded in proving its case against the appellant beyond all reasonable doubt and has convicted and sentenced the appellant.
10. Counsel for the appellant has submitted that the appellant has not been assigned any role of causing any injury to the deceased and he has been falsely implicated only on the allegation that he exhorted his son, Tara Lal Nishad, who caused single blow by sariya on the head of the deceased which resulted in his death. It has further been submitted that there was no common intention shared by the appellant in causing the death of the deceased, Pramod. In the first information report and in the statements of the witnesses, it has not been mentioned that the appellant ordered his son to cause death of the deceased. P.W.-1, has only stated that the appellant directed him to beat and we will see what happens. P.W.-2 and P.W.-3, have also not made any specific allegation that the appellant exhorted his son to cause the murder of the deceased. It appears that only abuses were hurled by the appellant and his son and on sudden provocation the son of the appellant, who was a juvenile, caused single blow on the head of the injured which proved fatal. He has submitted that the implication of the appellant for committing the offence under Section 304-1 I.P.C. with the aid of Section 34 I.P.C. is not warranted in this case.
11. The common intention should be inferred from the whole conduct of all the persons concerned and not merely from an individual act of an individual accused. A criminal act cannot be assumed to be in furtherance of the common intention. It is not to be inferred exclusively from the criminal act done. The criminal act done is only one of the factor to be taken into consideration, but it should not be taken as sole factor. The common intention ought to be determined from the facts and circumstances which existed before the commencement of the criminal act since the criminal act committed is in furtherance of such an intention.
12. The inference aforesaid may be drawn from the conduct of the accuseds for their participation in the commission of crime, circumstances and character of attack, the nature of injuries inflicted and the nature of weapons used.
13. If the assault is not sudden, common intention may be easily presumed, unless there is something to show that there was no opportunity for the accused to have a prior concert. When several persons inflict several injuries, common intention can be safely presumed. However in a case where there is sudden provocation and a single blow by one of the accused is only found to have been caused on the deceased, only on the mere allegation that such a blow was caused to the deceased on the exhortation of the only other accused cannot be easily presumed. A mere direction from one accused to the other to carry out that direction by the other may be only instigation and not a case of a joint act falling under Section 34 I.P.C.
14. In the present case the allegation is that when the informant, P.W.-1, his father, P.W.-2 and the deceased, Pramod, went with their stalks of wheat on the machine of the appellant, the appellant directed them along with his son to first make payment for thrashing of the wheat stalks by their machine. The informant and his companion stated that they will make the payment and asked them to start the work which resulted in hurling of abuses by the appellant and his son and finally he exhorted his son to beat them and his son picked up a rod and caused injury to Pramod, which proved fatal. Counsel has stressed that there was no common intention to cause the injury or death of the deceased on behalf of the appellant along with his son. It was under the heat of the moment that he is alleged to have ordered his son to beat and he caused injury to the deceased, Pramod. He has submitted that there was no pre-planning or prior concert on the part of the appellant with his son to commit such an act which would result in the death of the deceased. Their common intention was not to permit the informant to put his stalks wheat in the machine of the appellant and his son without prior payment of the cost of the machine. They opposed the request of the informant and other to put their stalks wheat in the machine without payment of money and when they did not relent he is alleged to have abused them and ordered his son to beat them. The son complied his command and it resulted into the fatal blow on the head of the deceased.
15. He has submitted that it is a case of sudden provocation and the prosecution has failed to prove that the appellant exhorted his son to cause the injury to the deceased. Infact it was the individual act of his son who got annoyed by the conduct of the informant and others and when he caused the injury to Pramod, the appellant repented and went to the doctor along with the injured as admitted by him in his statement under Section 313 Cr.P.C. P.W.-1, has admitted that the appellant had accompanied them to clinic of Dr. Biswas, soon after the incident but he did not went with him when he took the deceased to Gorakhpur Medical College.
16. Learned A.G.A. has opposed the argument advanced on behalf of the counsel for the appellant. He has submitted that the appellant shared common intention with the co-accused, who was his son, in causing the death of the deceased. The argument that there was no element of Section 34 I.P.C. involved in the act of the appellant is without any substance. The initial hurling of abuses by the appellant and his son proved beyond doubt that both had common intention of causing injury to the deceased. The conviction and sentence of the appellant under Section 304-I/Section34 I.P.C. is fully justified and this appeal deserves to be dismissed.
17. After hearing the rival contentions, it appears that the common intention of causing death of the deceased is discernible from the material on record but the conviction and sentence of the appellant under Section 304-I/Section34 I.P.C. does not appears to be justified.
18. All the witnesses of fact have clearly stated before the court below that the appellant exhorted his son and he caused the fatal blow by sariya on the head of the deceased. The only circumstance pointed out by the counsel for the appellant is that the appellant accompanied the deceased to the doctor would not mitigate his role of exhorting his son to cause the alleged act. To convict the appellant constructively under Section 34 I.P.C. it is not necessary to find that he actually struck the fatal blow, or any blow, but there must be clear evidence of some action or conduct on his part to show that he shared in the common intention of causing the alleged crime. The leading feature of Section 34 I.P.C. is participation in action. It has to be established that participation was not merely in planning but also in doing their the individual offender must have participated in the offence. His participation may be slight, but it should be there. In the present case there was meeting of minds of the appellant with his son in causing the injury to the deceased. It resulted into the offence of culpable homicide not amounting to murder. The intention was only to cause beating and in execution of such an intention the appellant exhorted his son. The Section 34 I.P.C. requires participation, it may be active or passive. For conviction with the help of this Section, it is not necessary that every accused should himself commit the offence or take active part in it. Admittedly, the son of the appellant was a juvenile on the date of incident and had the appellant, his father not ordered him to cause the crime alleged, he would not have committed the same. Being boy of tender age he proceeded to cause the injury only after getting command from his father. Had the father not permitted him to exceed his limits he would have not cause the same. There was certainly active participation of the appellant in exhorting his son which resulted into the death of the deceased on account of blow made by his son.
19. However, this court finds that at the most the appellant could have been convicted and sentenced for committing offence under Section 304-II I.P.C. and not under Section 304-I I.P.C. read with Section 34 IPC. A full bench judgment of this High Court in SectionState vs. Saidu Khan, AIR, 1951 Allahabad 21 (FB) has held that the common intention of Section 34 I.P.C. is not necessarily confined to an intention to commit the very crime with which the accused is charged. A number of persons may act in pursuance of common intention and can be shown to have a knowledge of that act either singly or jointly with others which is likely to cause death and every such person would be punishable under Section 304-II I.P.C. There is no conflict between the kind of knowledge contemplated by Section 304-II I.P.C. and the common intention contemplated by Section 34 I.P.C. If any one or more of them is proved to have the requisite kind of intention, e.g., the intention expressed in the earlier part of Section 299 I.P.C., he will be punishable either under Section 302 I.P.C. or under Section 304-I I.P.C., as the case may be. If, however, there is only guilty ‘knowledge’ as distinct from guilty ‘intention’, i.e., knowledge that the act which is being performed may result in death, he will be punishable under Part -II of Section 304 I.P.C. There is no difficulty in applying Section 34 I.P.C. so interpreted to a case which falls under Section 304-II I.P.C. The common intention in the one case and the knowledge that the act is likely to bring about death in the other, do not come into conflict at all. The result is that it is possible to convict an accused person of an offence under Section 304-II I.P.C. read with Section 34 I.P.C., provided the Court is of the opinion that each person taking part in committing the crime in furtherance of the common intention of all had knowledge that their act was likely to cause death. The Apex Court had approved the full bench judgment of this court in SectionAfrahim Sheikh vs. State of Bengal AIR 1964, SC 1263.
20. Consequently, this court finds that the conviction and sentence of the appellant under Section 304-I/ 34 I.P.C. is not justified and the same is converted into Section 304-II/34 I.P.C.
21. The conviction of the appellant for committing the offence under Section 3(2)(V) of SC/SectionST Act is not justified since there is no evidence on record that the offence against the deceased was committed on the ground that he was a member of Scheduled Caste and Scheduled Tribe.
22. For appreciation of the commission of the offence under Section 3 (2) (5) SC/SectionST Act, it would be appropriate to have a glance over the judgment in the case of SectionDinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267. The observation of the Hon’ble Apex Court are reproduced here below:-
“15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.
16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), SectionIPC does not per se become life sentence.”
23. Hon’ble Supreme Court in SectionRamdas and Ors. v. State of Maharashtra, (2007) 2 SCC 170 has held as under :-
“11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and SectionScheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside.” .
24. The Appellant was aged about 60 years on 25.03.2008 when his statement was recorded under Section 313 Cr.P.C. Now, he must be aged about 71 years. The incident in dispute took place in the year 1995.
25. The Hon’ble Supreme Court has urged all the Courts time and again to exercise the power under Section 357 Cr.P.C. liberally which was intended to reassure the victim that he or she is not forgotten in the criminal justice system and to meet the ends of justice in a better way.
26. SectionIn Hari Kishan v. Sukhbir Singh, (1988) 4 SCC 551 the Supreme Court urged all courts to exercise their power under Sec. 357 SectionCr.P.C. liberally to safeguard the interests of the victim. In this case, the victim and his relatives were attacked by seven persons in the field. The victim received severe head injuries which impaired his speech permanently. The accused were convicted by trial court under Sec.s 307, 323 and 325 of SectionIPC read with Sec. 149 and sentenced to imprisonment for three to four years. On appeal, the High Court acquitted two accused and quashed the conviction of other five accused under Sec. 307/149 SectionIPC, but maintained their conviction under Sec. 325/149 SectionIPC. The accused persons were granted probation and each was directed to pay compensation of Rs.2500/- to victim. On appeal, the Supreme Court did not disturb the sentence of imprisonment but ordered the accused persons to jointly pay a total compensation of Rs.50,000/- to the victim under Sec. 357(3) SectionCr.P.C. recording following reasons :-
It is an important provision but Courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who has suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all Courts to exercise this power liberally so as to meet the ends of justice in a better way.
27. SectionIn Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770, the Supreme Court went a step further and observed that the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case.
28. While the award or refusal of compensation in a particular case may be within the Court’s discretion, there exists a mandatory duty on the Court to apply its mind to the question in every criminal case. Application of mind to the question is best disclosed by recording reasons for awarding/refusing compensation. It is axiomatic that for any exercise involving application of mind, the Court ought to have the necessary material which it would evaluate to arrive at a fair and reasonable conclusion. It is also beyond dispute that the occasion to consider the question of award of compensation would logically arise only after the court records a conviction of the accused. Capacity of the accused to pay which constitutes an important aspect of any order Under Sec. 357 Code of Criminal Procedure would involve a certain enquiry albeit summary unless of course the facts as emerging in the course of the trial are so clear that the court considers it unnecessary to do so. Such an enquiry can precede an order on sentence to enable the court to take a view, both on the question of sentence and compensation that it may in its wisdom decide to award to the victim or his/her family.
29. SectionIn K.A. Abbas H.S.A. v. Sabu Joseph, (2010) 6 SCC 230 the Apex Court made it clear that the whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment.
30. As regards sentencing policy a Bench of 3-Hon’ble Judges of the Apex Court in the case of Hazara Singh Versus Raj Kumar Ors. (2013) 9 Supreme Court Cases 516 has highlighted the ‘sentencing policy’ after taking note of its earlier decisions. Relevant para-13 of the report, reads as under:
“17) We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The Court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment. ”
31. Almost same principles on sentencing were propounded by the Apex Court in the case of SectionState of M. P. vs Babulal Ors (2013) 12 Supreme Court Cases 308, in the following terms :
“19. In view if the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing mis-placed sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The Punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing.”
32. It would be useful to note down certain cases where the Court has considered the period of pendency of appeal and the date of incident in converting the custodial sentence into fine.
33. George Pon Paul Vs. Kanagalet and others (2010) 1 SCC (Cri) 1070- in this case, the appellant was found guilty for the offence punishable u/s 326 and 452 SectionIPC. He was sentenced to confinement till rising of the Court and fine with default stipulation. The High Court on revision by the victims enhanced the sentence, however, the Apex Court did not interfere in the sentence awarded by the trial Court due to long passage of time.
34. Nasir Vs. State of U. P. (2011) 2 SCC (Cri) 136 – The appellant was found guilty for the offence punishable u/s 399/402 SectionIPC and 25 (1)(a) SectionArms Act and was sentenced to five years’ imprisonment u/s 399/402. The occurrence had taken place about 29-years ago and the appellant remained in custody for more than six months, therefore, the sentence awarded to the appellant was reduced to the period already undergone by him.
17. State of U. P. Vs. Siyaram and another (2013) 2 SCC (Cri) 137 – in this case appellant Jiya Lal was found guilty for the offence punishable u/s 307/34 SectionIPC, however considering the fact that the incident had taken place in the year 1988, appellant has now become an aged person and there is nothing on record to show that he is either habitual offender or previous convict, his sentence was reduced to already under gone but fine was increased to Rs. 10,000/-. In State appeal, the Apex Court did not approve the reduction of sentence, however refused to interfere because the prosecution had been initiated in the year 1988, but fine was enhanced to Rs. 25,000/-.
35. Labh Singh others Vs. State of Haryana Anr. (2013) 1 SCC (Cri) 1125 – in this case the appellants were found guilty for the offences punishable u/s 326/324/323 r/w Section 34 IPC. The appellants were very old I. e. 82, 72 and 62 years respectively, incident was 27-years old and they had undergone part of the sentence, therefore, the Apex Court directed each appellant to pay Rs. One lakh compensation to the complainant/injured persons and their sentence was reduced to period already undergone by each of them.
36. Jagpal Singh others Vs. State of U. P. 2004 (5) ACC 310 – this Court vide judgment dated 26.6.2004 found that the incident had taken on 1.9.1977, the appellants were convicted on 23.4.1981 u/s 325/34 and 324 SectionIPC and so each was sentenced to pay fine of Rs. 2,000/- u/s 324 SectionIPC and Rs. 4,000/- u/s 325/34 SectionIPC.
37. Raghuvera Ors Vs. State of U. P. 1991 (28) ACC 498, – the trial Court and the appellate Court have convicted the five revisionists for the offences punishable u/s 147 and 307/149 and were sentenced to R.I. for one year u/s 147 and five years’ R.I. u/s 307/149 SectionIPC. In revision this court converted the conviction into Sectionsections 147, Section323/Section149, Section324/Section149 and Section325/Section149 IPC and observed that all the offences were committed in the same transaction, so separate sentences need not be recorded. The revisionists were sentenced to period of imprisonment already under gone by each of them with fine of Rs. 500/- each. It was further observed that the incident took place about 8-years ago and injured can be compensated with fine. It was held that short term sentences now are not likely to serve any useful purpose.
38. Satsen Vs. State of U. P. 2014 (84) ACC 606, – in this case the appellant was convicted for the offence punishable u/s 307 SectionIPC, but considering the fact that the incident is 33 years’ old, appeal came up for hearing after 32-years and the appellant is also ill, the sentence of three years’ R.I. awarded by the trial Court was converted into fine of Rs. 30,000/-, out of which Rs. 25,000/- was to be paid to the injured, if he is alive or his legal heirs.
39. Having an overall consideration of the fact situation and also time lag in between, the court is of the view that sentence of imprisonment of revisionist for offence under Sectionsection 304-II/Section34 I.P.C. is reduced to the period already undergone to meet the ends of justice. The fine of Rs. 2,00,000/- is directed to be paid to the legal heirs of the deceased, Pramod Kumar, as compensation. The appellant, Lutawan, is directed to deposit Rs. 2,00,000 (Two lakhs) before the trial court within two months and on receipt of the amount same shall be released in favour of the legal heirs of the deceased, Pramod. Any amount deposited towards fine by the appellant shall be adjusted. This amount shall be paid to the mother of the deceased or if she is not alive to her legal heirs. In case of failure of deposit of the amount by the appellant he shall be taken into custody forthwith and required to serve out the remaining sentence as per the order of the trial court except for offence under Section 3(2)(V) of SC/SectionST Act.
40. The judgment and order of the trial court is set aside. The appellant is on bail his bail bond and sureties are discharged.
41. The office is directed to send back the record of the court below along with copy of this judgment and order for compliance.
42. This criminal appeal is partly allowed.
Order date: 05.11.2019