KAPILDEO RAI AND ORS. Vs. STATE OF BIHAR

JUDGEMENT

(1.) (Oral) - These three appeals have been filed against the judgment of conviction and order of sentence dated 18.08.1992 passed by the Additional Sessions Judge V, Vaishali at Hajipur in Sessions Trial No 419 of 1989 by which appellant Nagina Rai has been convicted, apart from other, under Sec. 302 of Indian Penal Code (IPC) and sentenced to imprisonment for life. The rest, apart from other sections in respect of different appellants, have all been convicted under Sections 149/302 of Penal Code and sentenced to undergo rigorous imprisonment for seven years only. The sentences are to run concurrently.

(2.) The first thing we would like to notice is how the trial Court of the Additional Sessions Judge V could at all sentence the appellants to only seven years rigorous imprisonment having found them guilty of offence punishable under Sections 149/302 of IPC. In our view, the law gives little discretion to the Sessions Court in this regard. The punishment could either have been death or imprisonment for life. There is no third punishment possible. From the order sheet of these appeals, it appears this fact was noticed at the very stage of admission in the year, 1992 itself and appellants were put to notice with regard to enhancement of sentence in case their convictions were upheld but surprisingly little appears from the records as to what happened to the learned Additional Sessions Judge V who had proceeded in such an uneducated manner. We say no more.

(3.) We may also notice that when these matters were taken up after 22 years of filing, it was pointed out by learned counsels that appellant Kapildeo Rai had died sometime in the year, 1996 itself as per noting available in the counsel's file but as the clients were not in touch, no affidavit could be filed. We have no reason to disbelieve this because at the time when judgment of conviction and order of sentence were passed in the year 1992, he was 50 years old. Upon that calculation, he would be not less than 70 years now. We may also note that at that time itself, appellant Paltoo Rai was 70 years old. Appellant Ram Khelawan Rai was about 75 years old. Appellant Shital Rai was 70 years old. Appellant Ganni Rai was 65 years old and appellant Jitan Rai was 62 years old. If they are alive they all would be about 80 years or 90 years old as the case may be. In all probabilities, these six appellants would not be alive today. We need not labour on this except noticing this fact in view of the order that we ultimately intend to pass.