VINIT KUMAR MATHUR,J. - (1.) The instant appeals arise out of the common judgment dated 6/4/2012 and order dated 16/09/2013 passed by learned Additional Sessions Judge No.2, Sriganganagar in Sessions Case No.49/2009 (54/2009), therefore, the same are being heard and decided by this common judgment.
(2.) An FIR No. 91/2009 (Ex.P.2) was lodged at Police Station Lalgarh Jatan, District Sriganganagar on 23.04.2009. In furtherance whereof, five persons namely Dulla Singh @ Nirmal Singh (hereinafter referred to as 'Dulla Singh'), Shyoprakash @ Karm Singh @ Sukhdev Singh (hereinafter referred to as 'Shyoprakash'), Harnek Singh @ Laali, Ashok Kumar and Manjeet Singh(hereinafter referred to as 'Harnek Singh') were tried before the Additional Sessions Judge No.2, Sriganganagar in Sessions Case No. 49/2009 (54/2009). The trial culminated into the judgment dated 06/04/2012, whereby Harnek Singh, Ashok Kumar and Manjeet Singh were acquitted. Shyoprakash was convicted under Sections 302/34, 307/34, 324/34, 326/34, 341 IPC and Section 27 of the Indian Arms Act and was awarded death penalty with a fine of Rs. 10,000/- and in default of payment of fine to further undergo six months' simple imprisonment and Dulla Singh was awarded life imprisonment with a fine Rs. 10,000/- and in default of payment of fine to further undergo six months' simple imprisonment. The appellants Shyoprakash and Dulla Singh preferred appeals before this Court, being D. B. Criminal Appeal No. 446/2012 (Shyoprakash @ Karm Singh @ Sukhdev Singh V/s State) and D. B. Criminal Appeal 727/2012 (Dulla Singh @ Nirmal Singh V/s State).
(3.) Since the accused Shyoprakash was awarded death penalty, therefore, the matter was referred to the High Court as per Section 366 of the Criminal Procedure Code for confirmation of the death sentence, which was registered as D.B. Murder Reference No.2/2012 (State V/s Shyoprakash ). These three matters were heard by the Division Bench of this Court and vide order dated 22/08/2013, while setting aside the death penalty awarded to Shyoprakash, the matter was remanded to the trial Court for passing a fresh order on the aspect of sentences in the following terms :- "After hearing the parties on the question of sentence, the learned Trial Judge referred to the fact that the accused No.2 Shyoprakash had been convicted in the past by the Addl. Sessions Judge (Fast Track), Sriganganagar in the judgment and order dated 03.07.2003 (in Sessions Case No.67/2002) for the offence under Sections 348, 449, 341, 364, 342, 302/149, 323 and 324 IPC; and was, inter alia, awarded the punishment of life imprisonment for the offence under Section 302 IPC. The learned Judge also observed that the accused Shyoprakash was granted temporary suspension of execution of sentence by the order dated 06.02.2004 by this Court in the pending appeal (No.932/2003) but then, he did not surrender as required within time and then, standing warrant was ordered to be issued against him. The learned Judge further observed that this Court proceeded to dismiss the appeal to the extent it relate to this accused Shyoprakash. The learned Judge, therefore, found that there was no appeal of the accused Shyoprakash pending against the conviction in Sessions Case No.67/2002 and the judgment and order dated 03.07.2003 had acquired finality against him. The learned Judge, thereafter, observed that when the accused Shyoprakash had committed another offence of Section 302 IPC in the present case while being under sentence of life imprisonment, he was required to be dealt with under the mandatory provisions of Section 303 IPC and was, therefore, required to be awarded death penalty. With these considerations and observations, for the offence under Section 302 IPC, the learned Judge awarded the punishment of life imprisonment to the accused No.1 Dulla Singh and also imposed a fine of Rs.10,000/- on him, but awarded death penalty to the accused No.2 Shyoprakash and also imposed a fine of Rs.10,000/- on him. The learned Judge also awarded life imprisonment to these accused persons for the offence under Section 307 and in the alternative, for 307/34 IPC and further varying sentences for other offences, they were convicted for. For the death penalty having been awarded, the sentence has been submitted to this Court for confirmation per Section 366 of the Code of Criminal Procedure and thereupon, Murder Reference No.2/2012 has been registered. The accused No.2 Dulla Singh has filed a regular appeal against the judgment and order dated 06.04.2012 being D.B. Cr. Appeal No.727/2012. The accused No.2 Shyoprakash has sent the jail appeal that has been registered as Appeal No.446/2012. ;