Rohtas vs The State Of Haryana on 10 December, 2020


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Supreme Court of India

Rohtas vs The State Of Haryana on 10 December, 2020

Author: Surya Kant

Bench: N.V. Ramana, Surya Kant, Aniruddha Bose

                                                                             REPORTABLE



                                    IN THE SUPREME COURT OF INDIA
                                  CRIMINAL APPELLATE JURISDICTION


                                    CRIMINAL APPEAL NO. 38 of 2011

          Rohtas & Anr.                                             ..... Appellant(s)
                                               VERSUS
          State of Haryana                                           .....Respondent


                                                   WITH


                                    CRIMINAL APPEAL NO. 775 of 2011

          Bijender                                                    ..... Appellant
                                               VERSUS
          State of Haryana                                           .....Respondent


                                                JUDGMENT

Surya Kant, J:

These two criminal appeals, which have been heard through video

conferencing, are directed against the judgment dated 15.03.2010 of the

High Court of Punjab and Haryana whereby conviction of Rohtas and

Sanjay (appellants in Criminal Appeal No. 38 of 2011) and Bijender
Signature Not Verified

(appellant in Criminal Appeal No. 775 of 2011) under Sections 307 and
Digitally signed by
Vishal Anand
Date: 2020.12.10
16:39:49 IST
Reason:

148 of the Indian Penal Code, 1860 (“IPC”) has been upheld, though the

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sentence of seven years rigorous imprisonment awarded by the

Additional Sessions Judge, Sonipat has been reduced to five years, with

a fine of Rs. 1,00,000 (Rupees One Lakh) payable as compensation to the

victim­complainant.

FACTS

2. The brief facts of the prosecution case are as follows. A complaint

was lodged with the police by the victim­Ranbir Singh (PW­1) on

26.01.1998 stating that two days ago while on his way to irrigate his

agricultural field, he was stopped by Rohtas, Sanjay, Bijender (the

present three appellants) and Om Prakash (since deceased) who

collectively threatened him with death if he were to return to his fields for

irrigation. The complainant came back to his house and narrated the

incident to his family members who while cautioning him against picking

a quarrel, asked him to go about his normal routine. On the following

day, i.e. 25.01.1998, when the complainant was passing by the

Hudawala field while on his way to another agricultural plot (known as

Patewala field), the four accused ­ Om Parkash, Rohtas, Sanjay and

Bijender intercepted him. They started inflicting blows on the

complainant’s body using axes, thereby causing him to fall down and

seriously injuring his legs, hand and head. Another group of three

accused persons, comprising Hawa Singh, Virender @ Beero and

Rajinder also joined in thrashing the complainant. The assailants further

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declared that they would not rest till they killed the complainant. Upon

hearing the complainant’s cries, his brother Balwan (PW­3) who was

irrigating a nearby Budewala field, rushed to the spot and raised an

alarm. Thereafter, all seven accused ran from the spot. Balwan

subsequently carried his injured brother to Government Civil hospital at

Sonipat for treatment. Owing to the seriousness of multiple injuries,

Ranbir was referred to Post Graduate Institute of Medical Sciences at

Rohtak (in short, “PGIMS, Rohtak”).

3. The jurisdictional police recorded the statement of the injured on

26.01.1998 at PGIMS, Rohtak and formally registered the First

Information Report under Sections 307, 323, 325, 506, 148 and 149 of

the IPC. All the seven accused were then arrested. Post completion of

investigation, they were committed to trial. The Additional Sessions

Judge, Sonipat framed two charges; first, of rioting with deadly weapons

under Section 148, and second, of attempt to murder with common

object as part of an unlawful assembly under Section 307 read with

Section 149 of the IPC. All seven accused pleaded not guilty and claimed

trial. During trial, however, Om Prakash died and proceedings against

him stood abated on 08.11.2000.

4. The prosecution examined twelve witnesses to establish the

accused’s guilt, which included the victim­complainant ­ Ranbir Singh

(PW­1) and his brother and only eye­witness ­ Balwan (PW­3). The

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complainant very effectively corroborated his earlier version. He remained

firm during cross­examination and categorically stated that “Om

Parkash, Rohtas, Sanjay and Bijender and after a minute Beero,

Hawa Singh and Rajinder came there. All the accused attacked

me with their respective weapons.” He further mentioned that “Om

Parkash gave two axe blows on my head while Rohtas inflicted

uncounted injuries on my right leg… Sanjay gave two­three axe

blows on my left leg… Bijender gave one axe blow on the palm of

my left hand.” It is relevant to be noticed here that the complainant

was candid enough to admit in his cross­examination that “when the

accused Rajinder, Hawa Singh and Beero when arrived at the

scene of occurrence, I have already suffered all the injuries on my

person…. [sic]”

5. Eye­witness, Balwan (PW­3) stated on oath that on 25.01.1998 he

was irrigating Budewala field which he had taken on lease basis. At

about 12PM he heard noise towards the passage and after running in

that direction he witnessed that “Om Parkash, Rohtas, Sanjay and

Bijender armed with axes were causing injuries to my

brother/Ranbir.” Like the injured­complainant, Balwan (PW­3) also gave

a detailed account of the assault and consequent injuries on the body of

Ranbir. Despite strong suggestions by the defence counsel on the

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unlikelihood of him having seen the incident, Balwan unequivocally

replied that “I saw the accused causing injuries to my brother from

distance of about half killa…”.

6. Dr. Suman Mathur (PW­4), who had medico­legally examined the

injured soon after the occurrence, lead the medical evidence. She found

the following seven injuries on various parts of the complainant’s (PW­1)

body:

“1. Lacerated Wound 7 cm x 2 cm x bone deep on the lower 1/3rd of
right side. Bone exposed muscle and tendons were crushed. Fresh
bleeding was present and was advised x­ray.

2. Lacerated Wound 3 cm x 2 cms x bone deep present on the right
ankle foot. Advised x­ray.

3. Lacerated Wound 3 cms x 2 cms x bone deep on the front and
middle of left leg. Advised x­ray left leg.

4. Lacerated Wound 3 cms x 2 cms x muscle deep present on the
dorsum of the left leg.

5. Lacerated Wound 3 cms x 3 cms x skin deep on the palmer
aspect of left leg. Advised x­ray.

6. Lacerated Wound 5 cms x 2 cms x scalp deep on the left parieto
temporal region 5 cms above the left ear. Advised x­ray.

7. Lacerated Wound 2 cms x 2 cms x scalp deep on the right
parieto temporal region. Advised x­ray.”

7. The Orthopaedic Surgeon, Dr Ajay Goel (PW­10), deposed that he

was posted as Registrar in the Department of Orthopaedics, X­Ray and

Emergency Wing, at PGIMS Rohtak when he attended to the complainant

and diagnosed him with fracture of both the lower bones in both of his

legs, along with vascular and nerve injuries. External bilateral legs were

affixed and vascular repair was carried out on 26.01.1998. But, upon

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deterioration of the complainant’s condition, the lower portion of his right

leg (below the knee) was amputated on 01.02.1998. The need for this

amputation and its correlation with the initial set of injuries inflicted by

the accused, was elucidated by Dr SS Lochab (PW­12), who was posted

as Head of Department of Cardiothoracic and Vascular Surgery at

PGIMS, Rohtak. He explained the damage caused to the tibial arteries

and how the massive blood loss had endangered the complainant’s life.

The Investigating Officer, S.I. Parkash Chand (PW­6) and other formal

police witnesses too deposed to substantiate the prosecution case.

8. The six­surviving accused in their statement under Section 313 of

Code of Criminal Procedure, 1973 (“CrPC”) claimed that they were falsely

implicated on account of local village politics. They also led defence

evidence and produced Dr Varsha (DW­1) posted then as the Medical

Officer, Civil Hospital, Sonipat who had found injuries on Om Prakash

(deceased) and Sanjay (present appellant) during a medico legal

examination on the day after the incident.

9. Analysing this substantial ocular and medical evidence, the learned

Additional Sessions Judge, Sonipat negated the defence’s objection

against reliance on testimony of PW­3, for he being related to the

complainant or that the medical evidence did not reconcile with the

ocular evidence. The trial Court noted that an ‘unlawful assembly’ with a

common object had caused serious injuries to the complainant. All the

six accused were consequently convicted for the offence under Section

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307 read with Section 149 of the IPC (with sentence of seven years

rigorous imprisonment) and also under Section 148 of the IPC (with an

additional one year’s concurrent imprisonment).

10. The High Court, in appeal, re­appraised the entire evidence and

took further notice of the complainant’s admission that three of the

accused, namely Rajinder, Hawa Singh and Beero @ Virender, had

arrived at the scene of occurrence after he had already suffered injuries

from the other accused. Sensing the possibility that the late­arriving

accused might have been named only to widen the net and settle past

scores, the High Court extended the benefit of doubt to Rajinder, Hawa

Singh and Beero @ Virender and acquitted them of all charges. As

regards the present three appellants ­ Rohtas, Sanjay and Bijender, the

High Court found no ground to interfere with their conviction, though it

reduced the quantum of sentence under the charge of Section 307 IPC

from seven years to five, with a combined additional fine of Rs 1,00,000

(Rupees One Lakh) to be paid to the victim­complainant (PW­1).

11. These three remaining convicts, namely, Rohtas and Sanjay

(jointly) and Bijender have assailed their conviction and sentence

through these two criminal appeals.

CONTENTIONS:

12. We have heard learned counsel for the appellants at considerable

length and have perused the record in­depth. There are three principal

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contentions which have been raised on behalf of the appellants. First, it

was urged that the minimum number of persons required to constitute

an ‘unlawful assembly’ and concomitantly sustain any charge under

Section 149 IPC is five. Given that three of the original seven accused

have been acquitted by the High Court, the conviction for attempt to

murder as part of an unlawful assembly could not survive. In support,

learned counsel for the appellants relied upon Amar Singh v. State of

Punjab,1 and Dhupa Chamar v. State of Bihar 2. Further reliance was

placed on Subran v. State of Kerala3, to urge that the case should not

be converted to one under Section 307 IPC simplicitor at an advanced

stage. Second, the prosecution story was highly doubtful as Balwan (PW­

3) was an interested witness and no other independent witness had been

examined. Third and finally, it was urged alternatively that the appellants

after having undergone some part of their sentence were enlarged on bail

by this Court almost a decade back, and it would not serve the ends of

criminal justice to return them to Jail at this juncture. The sentence

thus ought to be reduced to the period already undergone by the

appellants.

13. Although learned State Counsel did not appear on the date of final

hearing, but the respondent’s stand on the intermittent dates of hearing

has been in total contrast to that of the appellants. The prosecution case
1
(1987) 1 SCC 679.

2

(2002) 6 SCC 506.

3

(1993) 3 SCC 32.

Page | 8
proceeds on the premise that there is an attempt to murder, involving

seven persons with a common intention and prior meeting of minds. The

emphasis of the State as usual is that no lenient view ought to be taken

in light of the nature of injuries.

ANALYSIS:

14. We have given our thoughtful consideration to all the issues raised

on behalf of the appellants. We first deem it appropriate to avert to the

contention whether a charge framed with the assistance of Section 149

IPC can later be converted to one read with Section 34 IPC or even a

simplicitor individual crime? Second, whether lack of independent

witnesses to a violent crime would undermine the prosecution case and

whether closely related witnesses can be relied upon in such instances?

And third, whether leniency ought to be shown to the present appellants

given the extended period of liberty which they have enjoyed since being

released on bail?

(i) Framing of charge and its subsequent alteration

15. The primary attack on the judgment of the High Court by learned

counsel for the appellants is on a question of law, which although seems

interesting at first but turns out to be superficial upon a deeper

consideration. The oversight regarding Section 148 and 149 of the IPC as

highlighted by the appellants is indeed inescapable. Before the members

of an ‘unlawful assembly’ can be vicariously held guilty of an offence

Page | 9
committed in furtherance of common object, it is necessary to establish

that not less than five persons, as mandatorily prescribed under Section

141 read with Section 149 of the IPC had actually participated in the

occurrence. It is not uncommon, like in the present facts, when although

the number of accused is more than five at the time of charge­sheeting,

but owing to acquittals of some of them over the course of trial, the

remaining number of accused falls below five. It may be true in such

cases, as rightly urged by the appellants that the charge under Section

148 and 149 IPC would not survive.

16. This does not, however, imply that Courts can not alter the charge

and seek the aid of Section 34 IPC (if there is common intention), or that

they cannot assess whether an accused independently satisfies the

ingredients of a particular offence. Sections 211 to 224 of CrPC which

deal with framing of charges in criminal trials, give significant flexibility

to Courts to alter and rectify the charges. The only controlling objective

while deciding on alteration is whether the new charge would cause

prejudice to the accused, say if he were to be taken by surprise or if the

belated change would affect his defence strategy. 4 The emphasis of

Chapter XVII of the CrPC is thus to give a full and proper opportunity to

the defence but at the same time to ensure that justice is not defeated by

mere technicalities. Similarly, Section 386 of CrPC bestows even upon

the appellate Court such wide powers to make amendments to the

4
Nallapareddy Sridhar Reddy v. State of AP, 2020 SCC OnLine SC 60, ¶ 16­21.

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charges which may have been erroneously framed earlier. Furthermore,

improper, or non­framing of charge by itself is not a ground for acquittal

under Section 464 of the CrPC. It must necessarily be shown that failure

of justice has been caused, in which case a re­trial may be ordered. 5

17. The contention of the appellants to the contrary is nothing but

hyper­technical. It deserves mention that the extracts of Subran v.

State of Kerala (supra) as relied upon by the appellants’ counsel have

been subsequently recalled and substituted by the bench in review

jurisdiction.6 The amended version makes clear that acquittal in Subran

(supra) was not because of improper framing of charges but on facts. In

that case, the injuries attributed to the accused failed to satisfy the

necessary ingredients of the relevant provision when his role was

assessed individually. Indeed, such is the right approach. Courts are free

to weigh the evidence and determine whether an independent conviction

is possible in case group prosecution under Section 149 IPC fails.

18. In another case relied upon by the appellants, i.e. Amar Singh v.

State of Punjab (supra), this Court in the penultimate paragraph notes

that “Apart from the fact that the appellants cannot be convicted

under Sections 148 and 149 IPC, it is difficult to convict them on

any charge on the basis of the evidence of PW5.” This shows that

acquittal was based not merely upon failure by the prosecution to fulfil
5
Kantilal Chandulal Mehta v. State of Maharashtra, (1969) 3 SCC 166.
6
(1993) 3 SCC 722.

Page | 11
the requirements of Section 149 IPC, but because even independently no

substantive offence was found to have been committed.

19. In fact, the law on this point has continuously been delved into and

reiterated by this Court from time to time. A three­Judge Bench of this

Court in Karnail Singh v. State of Punjab7, held that:

“8. It is true that there is substantial difference between the two
sections but as observed by Lord Sumner in Barendra Kumar
Ghosh v. Emperor I.L.R. 52 Cal. 197, they also to some extent
overlap and it is a question to be determined on the facts of each
case whether the charge under section 149 overlaps the ground
covered by section 34. If the common object which is the subject­
matter of the charge under section 149 does not necessarily
involve a common intention, then the substitution of section 34 for
section 149 might result in prejudice to the accused and ought not
therefore to be permitted.

But if the facts to be proved and the evidence to be
adduced with reference to the charge under section 149
would be the same if the charge were under section 34,
then the failure to charge the accused under section 34
could not result in any prejudice and in such cases the
substitution of section 34 for section 149 must be held to
be a formal matter.”
(emphasis supplied)

20. The above­extracted position of law was further concretised in

Willie (William) Slaney v. State of MP8 and by the majority in

7
AIR 1954 SC 204.

8

AIR 1956 SC 116, ¶ 49.

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Chittarmal v. State of Rajasthan9. The permissibility of convicting an

accused individually under a simplicitor provision after group conviction

with the aid of Section 149 of IPC fails, was further explored in

Atmaram Zingaraji v. State of Maharashtra 10, wherein this Court

held that:

“4. The next question that falls for our determination is whether,
after having affirmed the acquittal of all others, the High Court
could convict the appellant under Section 302, I.P.C. (simpliciter).
The charges framed against the accused (quoted earlier) and the
evidence adduced by the prosecution to bring them home clearly
indicate that according to its case, the nine persons arraigned
before the trial Court ­ and, none others, either named or
unnamed (totalling minimum five or more persons) ­ formed the
unlawful assembly. Consequent upon the acquittal of the other
eight the appellant could not be convicted with the aid of Section
149
, I.P.C., more particularly, in view of the concurrent findings of
the learned Courts below that the other eight persons were not in
any way involved with the offences in question.

5. The same principle will apply when persons are tried with the
aid of Section 34, I.P.C. In the case of Krishna v. State of
Maharashtra
[1964]1SCR678 , a four Judge Bench of this Court
has laid down that when four accused persons are tried on a
specific accusation that only they committed a murder in
furtherance of their common intention and three of them are
acquitted, the fourth accused cannot be convicted with the aid of
Section 34, I.P.C. for the effect of law would be that those who
were with him did not conjointly act with the fourth accused in

9
(2003) 2 SCC 266, ¶ 14.

10

(1997) 7 SCC 41.

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committing the murder.

6. In either of the above situations therefore the sole convict can
be convicted under Section 302, I. P. C. (simpliciter) only on proof
of the fact that his individual act caused the death of the victim.
To put it differently, he would be liable for his own act only. In
the instant case, the evidence on record does not prove that
the injuries inflicted by the appellant alone caused the
death; on the contrary the evidence of the eye­witnesses
and the evidence of the doctor who held the post­mortem
examination indicate that the deceased sustained injuries
by other weapons also and his death was the outcome of
all the injuries. The appellant, therefore, would be guilty of
the offence under Section 326, I.P.C. as he caused a
grievous injury to the deceased with the aid of jambia (a
sharp­cutting instrument).”
(emphasis supplied)

21. This position of law has finally been summed up very succinctly in

Nallabothu Venkaiah v. State of Andhra Pradesh11:

“24. Analytical reading of catena of decisions of this Court, the
following broad proposition of law clearly emerges; (a) the
conviction under Section 302 simpliciter without aid of
Section 149 is permissible if overt act is attributed to the
accused resulting in the fatal injury which is
independently sufficient in the ordinary course of nature to
cause the death of the deceased and is supported by
medical evidence; (b) wrongful acquittal recorded by the
High Court, even if it stood, that circumstance would not

11
(2002) 7 SCC 117.

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impede the conviction of the appellant under Section 302
r/w Section 149 I.P.C. (c) charge under Section 302 with the
aid of Section 149 could be converted into one under
Section 302 r/w Section 34 if the criminal act done by
several persons less than five in number in furtherance of
common intention is proved.”
(emphasis supplied)

22. Although both Section 34 and 149 of the IPC are modes for

apportioning vicarious liability on the individual members of a group,

there exist a few important differences between these two provisions.

Whereas Section 34 requires active participation and a prior meeting of

minds, Section 149 IPC assigns liability merely by membership of the

unlawful assembly. In reality, such ‘common intention’ is usually

indirectly inferred from conduct of the individuals and only seldom it is

done through direct evidence.12

23. Applying these settled principles to the facts of the present case, it

may be seen that both the common object and the common intention are

traced back to the same evidence, i.e., evaluating the conduct of the

accused as narrated by the injured and the eye­witness. Further, a

perusal of Section 313 CrPC statement shows that the appellants were

expressly confronted with their specific role in the offence: that each of

them had individually attacked the complainant with a deadly object in

furtherance of the common intention of killing him. We, therefore, do not
12
Mahbub Shah v. King Emperor, AIR 1945 PC 118, pp. 153­154.

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find that the appellants suffered any adverse effect when the High Court

held the three of them individually guilty for the offence of attempted

murder, without the aid of Section 149 IPC.

24. We have no doubt that on facts, an offence under Section 307 IPC

is clearly made out against each of the three appellants. The medical

experts have in their depositions clearly explicated that the weapons

used and the injuries inflicted were more than sufficient to cause death

in ordinary course of nature. The appellants made death threats to the

complainant on 24.01.1998 and then they used sharp edged weapons

the very next day and further declared that they would not rest till they

killed the complainant. It manifests the appellant’s intention to inflict

bodily injury knowing fully that such injuries would ordinarily lead to the

complainant’s death. The recovery of the axe (kulhari) from Rohtas, which

is on the record as Exhibit­P7, further punches holes in the mask of

denial worn by the appellants.

25. The gravity of the injuries is beyond doubt. Not only were there

seven injuries, some of which were deep cuts on vital parts of the body

including on the head (above the ear); but the appellants broke all the

bones in the complainant’s feet below the knee. Most appallingly, the

injuries have led to amputation of an entire limb, leaving the

complainant permanently disabled. This by itself shows the very likely

possibility of the complainant dying if not for the timely intervention of

PW­3 and appropriate medical care by PGIMS Rohtak. Given such

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extreme injuries, we can fathom no rhyme or reason for either the

complainant (PW­1) or his brother, Balwan (PW­3) to falsely implicate the

appellants and allow the actual culprits to go scot­free. On the contrary,

the candour of PW­1 and the responses of PW­3 inspire confidence and

provide undoubtable explanation of the incident.

26. That apart, even the requirements of Section 34 of IPC are well

established as the attack was apparently pre­meditated. The incident was

not in a spur­of­the­moment. The appellants had previously threatened

the complainant with physical harm if he were to attempt to irrigate his

fields. Their attack on 25.01.1998 was thus pre­planned and calculated.

There is nothing on record to suggest that the complainant caused any

provocation. Specific roles have been attributed to each of the appellants

by the injured and the solitary eye­witness, establishing their individual

active participation in the crime.

(ii) Independence of witnesses

27. It is true that the duty of the prosecution is to seek not just

conviction but to ensure that justice is done. 13 The prosecution must,

therefore, put forth the best evidence collected in the course of

investigation. Although it is always ideal that independent witnesses

come forward to substantiate the prosecution case but it would be unfair

to expect the presence of third­parties in every case at the time of

incident, for most violent crimes are seldom anticipated. Any adverse

13
Kumari Shrilekha Vidyarthi v. State of UP, (1991) 1 SCC 212.

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inference against the non­examination of independent witnesses thus

needs to be assessed upon the facts and circumstances of each case. In

fact, it must first be determined whether the best evidence though

available, has been actually withheld by the prosecution for oblique or

unexplained reasons.

28. The present crime took place in a private agriculture field and not

in the middle of a busy public place. The defence has not claimed that

other farmers also gathered at the scene and yet have not been

examined. This shows that the appellants have in fact been blowing both

hot and cold with their arguments. Earlier in the trial they had tried to

discredit the ocular testimony of PW­3 by claiming that he might not

have been able to witness the incident owing to standing crops in the

field. Nonetheless, they expect this Court to believe that there could

have been others who witnessed the incident but have deliberately been

suppressed by the prosecution.

(iii) Sentencing and Leniency

29. This leaves us to explore the equitable considerations and plea of

consequential reduction in sentence as has been pleaded by learned

counsel on behalf of the appellants. We have objectively considered this

prayer. We, however, cannot be oblivious of the fact that the appellants

and their deceased co­accused were all armed with deadly weapons. They

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surrounded the complainant and in a brutal attack caused him

gruesome injuries and disabled him for life.

30. The appellants have not undergone even half of their sentence

period. Having enjoyed the more productive part of their lives outside jail

cannot be, per se, taken as a mitigating factor. Any misplaced sympathy

with the appellants is likely to cause injustice to the victim of the crime.

We, therefore, do not find any justification to show leniency and reduce

the sentence.

31. Given that earlier the appellants had been ordered to serve their

two sentences of five years under Section 307 and one year under

Section 148 of IPC concurrently, acquittal in the latter would effectively

have no impact on their outstanding period of sentence.

CONCLUSION:

32. As a sequel to the above discussion, both the appeals are found to

be without any merit so far as conviction of the appellants under Section

307 IPC is concerned, and are dismissed accordingly. However, their

conviction under Section 148 is set­aside. Their bail bonds are cancelled

and the State of Haryana is directed to take the appellants into custody

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to serve the remainder of their five­year sentence as awarded by the

High Court.

…………………………….. J.

(N.V. RAMANA)

……………………………J.

(SURYA KANT)

……………………………J.

(ANIRUDDHA BOSE)

NEW DELHI
DATED : 10.12.2020

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