- (1.) By way of this appeal, judgment dated 31/08/1988 passed by Additional Sessions Judge, Rai Singh Nagar, District Sriganganagar in Sessions Case No.66/1986 has been challenged and according to said judgment, both the appellants-accused have been sentenced under Section 302/34 of IPC to life imprisonment with a fine of Rs.500/- and in default to undergo rigorous imprisonment for one month.
(2.) In brief, the story of the prosecution, which has been narrated in the F.I.R, reads as under :- ...[VERNACULAR TEXT OMITTED]... Besides both the appellants, their mother Smt. Jindo Bai was also included in the list of the accused persons, who died on 18/11/1986, while under judicial custody, so the proceedings were abated against her, both the appellants-accused were charge-sheeted under Sections 302, 498A read with Section 34 of IPC. Learned trial Court charged both the accused persons under Sections 302, 498A read with Section 34 of IPC and trial was conducted. Prosecution produced eleven witnesses and the trial was culminated in conviction through the impugned judgment.
(3.) Heard arguments of both the sides, learned counsel for the appellants has empathetically argued that after the demise of main accused Smt. Jindo Bai, charge under Section 34 of IPC becomes redundant and does not survive. Relying on judgment of State of Maharashtra v. Eknath Yeshwant Pagar and Anr, AIR 1981 Supreme Court 1571, it has been contended that charge under Section 34 pertaining to common intention since does not survive, so the judgment passed by learned trial Court is liable to be set aside. Learned counsel has further argued that prosecution has failed to adduce reliable evidence and so far as the question of extra judicial confession is concerned, it is also not worthy to be relied because the same is invented and nothing of that kind ever been existed and evidence to this effect is concocted because the police statements of PW.4 Shankar Singh have been recorded on 21/08/1986, whereas said incident belongs to 15/08/1986. All the prosecution witnesses are close relatives and their testimony is not worthy to be relied, kind of allegations, which have been levelled, do not comprise with any offence of alleged cruelty. Medical evidence also does not prove the alleged offence and prosecution has failed to establish case and no iota of positive evidence is there, so the appeal be allowed and the impugned judgment be set aside. On the contrary, learned public prosecutor has submitted that the prosecution has produced reliable evidence supported with medical evidence, taking support of Jamnadas v. State of M.P., 2016 3 Crimes (SC) 168, learned public prosecutor has contended that all the prosecution witnesses have narrated woe of cruelty meted out against the deceased and deceased was eliminated by all the three accused persons, one amongst them unfortunately died during the course of investigation and there is no error in the findings of learned trial Court, so the appeal be dismissed.;