G.S. Sistani, J.
CM 10359/2013.
1. Exemption allowed subject to all just exceptions. Application stands disposed of.
CM 10358/2013.
2. This is an application filed by the appellant seeking condonation of 553 days'' delay in filing the present appeal.
3. Notice. Learned counsel for the State accepts notice and has no objection if the present application is allowed.
4. Heard. For the reasons stated in the application and in view of the stand taken by counsel for the State, present application is allowed. Delay in
filing the present appeal is condoned.
5. Application stands disposed of.
CRL. A. 882/2013
6. Admit. With the consent of counsel for the parties present appeal is set down for final hearing and disposal.
7. Challenge in the present appeal, filed u/s 374(2) of the Criminal Procedure Code, is to the judgment dated 4.8.2011 and the order on sentence
dated 10.8.2011 whereby the trial Court has sentenced the appellant and the other co-accused to undergo life imprisonment for the offence of
murder under Sections 302 /34 IPC with fine of Rs. 20,000/-and in default of payment of fine, simple imprisonment for a period of six weeks. The
appellant and the other co-accused were further directed to undergo rigorous imprisonment for a period of one year for the offence under Sections
323 /34 IPC. All the sentences were directed to run concurrently.
8. The case of the prosecution in nutshell is that on the intervening night of 14/15.05.2007 three persons (present appellant and appellants in
Criminal Appeal Nos. 1179/2011, 1250/2011 and 1506/2011) beat up Parvez, PW-4 and others i.e. Najim and Karan Singh @ Billu. It was
alleged that PW-4 used to work in a truck bearing No. HR-46C-6332 and Billu and Najim (the deceased) were drivers on duty. The said truck
as well as another truck bearing no. HR-46B-6332 were used to ferry goods to specific destinations. One of the appellants, Sukhchain@Bhura,
was the driver of the second vehicle bearing no. HR-46B-6332 and the other driver was Gandhi i.e. the co-accused, Anand. All of them allegedly
worked for Vijender Singh@Fauji. It is alleged that the goods had been unloaded at some place in Andhra Pradesh, a few days before the
incident. PW-4 stated that some money received after unloading the goods had been stolen. The co-accused Sukhchain and Anand suspected
PW-4 and the deceased as those who had committed theft. It was alleged that all of them threatened PW-4 and the deceased. After the trucks
returned to Delhi, Vijender Singh @ Fauji called PW-4 and Billu inside the office on the first floor. The other three co-accused were also present
at that time. Fauji apparently enquired whether PW-4 had committed theft which he denied. It was alleged that similarly Billu and Najim were also
questioned. PW-4 stated that all of them were ""taken to task"" and subsequently severely beaten with dandas in the office itself by the accused.
Najim succumbed to the beating in the office; Billu was however alive but badly injured. PW-4 too was injured. The police was informed and the
injured as well as the deceased were taken to the hospital. The next morning statement of complainant Billu as well as that of PW-4 and others
were recorded by P.S. Samaipur Badli; this led to lodging of an FIR (No. 417/2007 at 9.00 AM). The appellant and other co-accused were
arrested during the investigation on 15-05-2007 and they were subsequently charged with committing the offences. They denied guilt and claimed
trial.
9. Mr. Anand, learned counsel for the appellant, submits that the co-accused, being Bijendra Singh, Anand Singh and Sukhchain, had preferred
their appeals (Criminal Appeal Nos. 1179/2011, 1250/2011 and 1506/2011) and the said appeals have already been decided by a Division
Bench of this Court vide judgment dated 14.2.2012 whereby the conviction u/s 302 IPC has been altered to one u/s 304, Part I, and also the
sentence has been reduced to rigorous imprisonment for ten years instead of imprisonment for life. Mr. Anand further submits that since the role of
the appellant was identical to the role of other co-accused (Appellants in Criminal Appeal Nos. 1179/2011, 1250/2011 and 1506/2011), similar
order should be passed with respect to the present appellant.
10. Ms. Richa Kapoor, learned counsel for the State, is unable to point out any difference in role between the present appellant and the other co-
accused (appellants in Criminal Appeal Nos. 1179/2011, 1250/2011 and 1506/2011). Ms. Kapoor is further unable to show as to why the
judgment dated 14.2.2012 would not be applicable to the facts of the present case as well.
11. We have heard learned counsel for the parties, considered their rival submissions and also examined the judgment dated 14.2.2012 rendered
by a Division Bench of this Court in Criminal Appeal Nos. 1179/2011, 1250/2011 and 1506/2011, filed by other co-accused persons. The
learned Division Bench has noticed that the facts alleged against the co-accused, Anil Kumar, present appellant, are identical and thereafter
clarified that since he was not before the Court the judgment would not preclude his contentions, it would be open for him to independently
challenge the findings of the trial court. It would be useful to reproduce Paras 23 and 24 of the judgment dated 14.2.2012 reads as under:
23. Having regard to the above legal principles, and the factual conspectus in this case, we are of the opinion that the conviction u/s 302 IPC
requires to be altered to one u/s 304, Part I, in respect of the present appellants. Although the facts alleged against the co-accused Anil are
identical, we clarify that since he is not before this court in appeal, nothing stated in this judgment shall preclude his contentions; it is open to him to
independently challenge the findings of the Trial Court, if so advised, by preferring his appeal.
24. So far as sentence is concerned, we are of the opinion that the facts of this case reveal that the appellants, belaboured the hapless deceased
and the eyewitness on suspicion of their having committed theft. Having regard to the position occupied by the appellant Vijender @ Fauji, i.e. as
their employer, and the roles played by the other appellants, in the peculiar circumstances, we are of the opinion that this aspect has to be duly
taken note of in the sentence awarded. The sentence of imprisonment for life awarded by the Trial Court is, therefore, altered, and instead, the
appellants are hereby sentenced to undergo RI for 10 years. The other sentences imposed by the Trial Court are left undisturbed; all sentences
shall operate concurrently.
Accordingly, the present appeal is partly allowed. For the detailed reasons stated in the judgment dated 14.12.2012 rendered in Criminal Appeal
Nos. 1179/2011, 1250/2011 and 1506/2011, the conviction u/s 302 IPC is altered to one u/s 304, Part I. The sentence of imprisonment for life
awarded by the trial court is altered and the appellant is hereby sentenced to undergo rigorous imprisonment for ten years. The other sentences
imposed by the trial Court are left undisturbed and all the sentences shall operate concurrently.