Radhey Shyam and Others (in Jail) vs State

Vishnu Sahai, J.—This appeal has been directed by Radhey Shyam, Ram Lotan, Prem Prakash and Ram Gopal against the judgment and order dated 4.12.1982, passed by the I Ind Additional Sessions Judge, Sitapur, in Sessions Trial No. 105 of 1982, whereby they have been convicted and sentenced to undergo imprisonment for life for the offence punishable u/s 302/34, I.P.C. ; in addition, Ram Lotan to undergo three months'' R.I. for the offence punishable u/s 323, I.P.C. and Radhey Shyam, Prem Prakash and Ram Gopal to three months R.I. for that punishable u/s 323/34, I.P.C.

All the sentences have been directed to run concurrently.

Shortly stated, the prosecution case runs as under:

The informant Siphai Lal (P.W. 1), the deceased Baijnath, Kali Charan (P.W. 3) and the four Appellants, at the time of the incident, were living in the village Richhin within the limits of police station, Hargaon in district Sitapur. The informant was the uncle of the deceased Baijnath, inasmuch as the latter was the son of his real brother Babu Ram. The agriculture of the informant and his brother was separate, but they jointly owned a grove.

Appellants Radhey Shyam, Ram Lotan and Prem Prakash are real brothers and Appellant Ram Gopal is their brother-in-law (sister of Radhey Shyam and others was married to Ram Gopal). To the east of the house of the informant''s brother Babu Ram there was a grove of Kallu. To the south of the said grove was a passage. To the south of the said passage was the grove of the informant, wherein Mango, Jack-fruit, and Shisham trees were standing and there was a cluster of bamboo bushes. The said trees were planted by the informant''s father, about thirty to forty years ago. To the eastern corner of the informant''s grove were two trees of Shisham and one of Sirsa. To the west of the said trees was the field of Appellant Radhey Shyam. The said field initially belonged to Kali Charan (P.W. 3) and Ram Avtar. In it there were some trees. After consolidation Raja Ram and Manohar Lal, sons of Kali Charan and Ram Avtar, had sold the said trees to Appellant Radhey Shyam, who had cut them.

From eight to ten months prior to the incident, Appellant Radhey Shyam had started saying that the two Shisham trees and one Sirsa tree, standing in the informant''s grove, belonged to him. The informant''s brother Babu Ram moved an application in the Court of S.D.M. against Radhey Shyam.

Five to six days before the incident, Kanoongo, Patwari and a Peon came to the village of the informant. They sent for Radhey Shyam, but he did not come. After measurements they said that the aforesaid three trees did not belong to Radhey Shyam but belonged to him (the informant) and Babu Ram.

Three days before the incident, there was a storm in which both the Shisham trees and the Sirsa tree, which were on the mend of the informant, fell. They fell inside the agricultural land of Appellant Radhey Shyam.

On the date of the incident (i.e., on 30.9.1981) in about 6.30 a.m. the informant, the deceased Baijnath, Jangli Prasad, Mani Ram and Anant Ram went to chop the said trees and pick the wood. Jangli Prasad and Mani Ram were cutting the branches of the trees with axe and banka and the informant, Baijnath and Anant Ram were keeping the cut branches inside the grove. At about 6.45 a.m. Appellant Ram Lotan with a lathi came and asked the informant not to get the trees cut. The informant told him that the trees were not his. Consequently, Ram Lotan started abusing the informant and others and inflicted a lathi blow on the informant. The informant raised cries, hearing which Appellant Radhey Shyam with a country made gun came. In the meantime, Appellant Ram Lotan gave two more lathi blows to the informant. When the informant''s nephew Baijnath rushed to his rescue Appellant Radhey Shyam fired upon him and the shot struck him on his hand. After receiving the said injury Baijnath ran through the field of Sarju Yadav and reached the grove of Ram Naresh. There Appellant Ram Gopal with a country-made pistol and Appellant Prem Prakash with a gun were present. Ram Gopal fired on Baijnath and the shot struck him on his chest. When Baijnath turned after receiving the injury, then Appellant Prem Prakash fired upon him and the said shot struck him (according to the F.I.R. on head) and he fell down in the field of Sarju Yadav. A lot of blood fell in the said field. Hearing the cries of the informant, Kali Charan (P.W. 3), Sarju, Manohar and Maiku Pasi came and saw the incident. When they raised cries, the Appellants ran away.

On the place of the incident itself, the informant dictated the F.I.R. to Pyare Lal, who after scribing it read it over to him. He thereafter affixed his thumb impression on it and took it to police station, Hargaon, where he lodged it.

The evidence of S.I. Brijendra Singh (P.W. 5) shows thus:

On 30.9.1981 at 8.30 a.m. while he was present at police station, Hargaon the informant Siphai Lal lodged his F.I.R., on the basis of which Head Moharrir Badri Prasad registered a case. He thereafter sent the informant for medical examination to Primary Health Centre, Hargaon, through Constable Kanhaiya Lal.

The evidence of Dr. M. G. Deen (P.W. 4) shows that on 30.9.1981 at 9.00 a.m. he medically examined Sipahi Lal and found on his person the following injuries:

(i) Lacerated wound 1" x 1/2" x muscle deep on the left side of head 4" above the left ear.

(ii) Lacerated wound 1/2" x 1/4" x muscle deep 3" above the left ear.

(iii) Lacerated wound 1" x 1/4" x muscle deep 4" above the right ear.

In the opinion of Dr. Deen the said injuries were simple in nature ; attributable to a blunt weapon like lathi ; and could have been caused on 30.9.1981 at 7.00 a.m.

The autopsy on the corpse of Baijnath was conducted on 1.10.1981 at 1.00 p.m. by Dr. A. K. Saxena (P.W. 6), who found on it the following ante-mortem injuries:

(i) Gun shot wound of entry in an area of 5.5 cm. x 5.0 cm. x bone deep situated on upper part of back of depth of pinna 10.0 cm. away from outer end of left eye. Margins lacerated and inverted. Blackening present in an area of 0.5 cm. around the wound. Upper part of left pinna is lacerated. Wound is directed from left to right side obliquely.

(ii) Multiple gun shot wound of entry in an area of 12.0 cm. x 9.0 cm. x muscle to chest cavity deep situated on upper part of left side of chest 1.5 cm. above left nipple. Margins of wound are lacerated and inverted. Wounds are directed from front to back side.

(iii) Gun shot wound of entry in an area of 7.5 cm. x 5.5 cm. x muscle deep situated on front and lower part of left forearm 1.0 cm. above left wrist joint. Margins lacerated and inverted. Blackening present around the wound in an area of 0.75 cm. Wound is directed from left to right side medially.

(iv) Lacerated wound in an area of 2.5 cm. x 1.5 cm. x bone deep situated on dorsum of terminal part of first right thumb 5.0 cm. below right wrist joint. Margins lacerated. Last phalanx of right first thumb is missing due to injury.

(v) Lacerated wound 2.5 cm. x 1.0 cm. x muscle deep situated on outer side of right second thumb 8.5 cm. below from right wrist joint. Margins lacerated.

On internal examination Dr. Saxena found fractures of left parietal bone ; left temporal bone ; and left middle fossa. He found the heart lacerated at two places ; left lung lacerated through and through ; and third and fourth ribs on left side fractured.

He recovered 23 pellets from beneath the ante-mortem injuries suffered by the deceased.

In the opinion of Dr. Saxena, the deceased died on account of shock and haemorrhage as a result of gun shot injuries.

In his statement in the trial court, Dr. Saxena stated that injury Nos. 1 and 2 suffered by the deceased were individually sufficient in the ordinary course of nature to cause death ; injury No. 4 was attributable to a fire arm ; and injury No. 5 could have been caused by fall. He further stated that the deceased could have died on account of the said injuries on 30.9.1981 at 7.00 a.m.

The case was investigated in the usual manner by S.I. Brijendra Singh (P.W. 5). His evidence shows:

After the case was registered he left for the place of the incident, which he reached at 9.30 a.m. He performed the inquest on the corpse of the deceased and then sent it for autopsy. He prepared the site plan (exhibit Ka-11). He recovered plain and blood stained earth from the place, where he found the corpse of the deceased in separate containers, under recovery memos. He found an empty cartridge on the place of the incident, which he seized vide a recovery memo. He found three trees uprooted on the mend of the informant. He also found pieces of cut wood, which he showed in the site plan. He recorded the statements of the eye-witnesses.

On 2.10.1981, the investigation was taken over by S.O. Balram.

6A. On completion of investigation the Appellants were charge-sheeted.

The case was committed to the Court of Sessions in the usual manner, where after being charged, the Appellants were put up for trial. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial.

During trial, the prosecution examined two eye-witnesses, namely, the informant Sipahi Lal (P.W. 1) and Kali Charan (P.W. 3).

The suggestion given to Sipahi Lal during the course of his cross-examination was that the two disputed Shisham trees and one Sirsa tree belonged to Appellant Radhey Shyam and the informant and others at night were stealthily chopping them and when Radhey Shyam asked them not to chop them, he (the informant) and Baijnath assaulted Radhey Shyam with lathis and then Radhey Shyam assaulted them with lathi. The said suggestion was denied by Sipahi Lal.

The learned trial Judge believed the evidence of the eye-witnesses and convicted and sentenced the Appellants in the manner stated in paragraph 1.

Hence, this appeal.

We have heard learned Counsel for the parties and perused the entire evidence on record. In our view, this appeal deserves to be partly allowed.

So far as the involvement of the Appellants in the incident is concerned, the same, in our view, is squarely established by the credible ocular account furnished by the informant Sipahi Lal (P.W. 1) and Kali Charan (P.W. 3). In our view, the learned trial Judge acted correctly in accepting it.

We now propose giving our reasons for reaching the said conclusion.

We begin with the ocular account furnished by the informant Sipahi Lal (P.W. 1). Since in para 2, we have set out the prosecution story on the basis of the recitals contained in his examination-in-chief, we do not want to burden our judgment by reiterating the details. In short his evidence shows:

The deceased Baijnath was his nephew. On the mend of his field, contiguous to the field of Appellant Radhey Shyam, were standing two trees of Shisham and one of Sirsa. Three days before the incident, during a storm, they fell in Radhey Shyam''s field. On the date of the incident (i.e. on 30.9.1981) at about 6.30 a.m. he, Baijnath, Jangli Prasad, Mani Ram and Anant Ram were chopping these trees and keeping their wood. At 6.45 a.m. Appellant Ram Lotan asked him not to chop the wood. When he told him that the trees were not his he started abusing him and gave him a lathi blow. He raised cries. Thereupon Appellant Radhey Shyam with a country made gun came. In the meantime, Ram Lotan inflicted two more lathi blows on his person. When his nephew Baijnath came to save him Radhey Shyam fired on him, resulting in an injury on his hand. Thereafter, Radhey Shyam ran through the field of Sarju Yadav and reached the grove of Ram Naresh, where Appellant Prem Prakash armed with a gun and Appellant Ram Gopal armed with a pistol were present. Appellant Ram Gopal fired on Baijnath and the shot struck Baijnath on his chest. When after receiving the injury Baijnath turned, Appellant Prem Prakash fired upon him ; the shot struck him ; and he fell down in Sarju Yadav''s field. This incident was seen by Kali Charan and others. Thereafter, the Appellants ran away.

We have gone through the evidence of the informant Sipahi Lal and make no bones in observing that it is implicitly reliable.

In the first place, it should be borne in mind that his presence on the place of the incident is fixed by the blunt weapon injuries, which Dr. M. G. Deen (P.W. 4) found on his person, when he examined him at 9.00 a.m. on the date of the incident itself. Earlier we have extracted the said injuries in entirety and seen that they comprised of three lacerated wounds (all on head). We have also seen that in the opinion of Dr. Deen, they could have been caused on the date of the incident at 7.00 a.m. and were attributable to a blunt weapon like lathi. It is manifest from the above that his evidence that Appellant Ram Lotan inflicted three lathi injuries on his person is corroborated by the medical evidence.

We may also mention that the manner of assault attributed by him to Appellants Radhey Shyam, Prem Prakash and Ram Gopal is also corroborated by medical evidence. He stated that Appellant Radhey Shyam fired with a country made gun and the shot struck the deceased Baijnath on his hand. Earlier we have extensively set-out the ante-mortem injuries suffered by the deceased. Their perusal would show that ante-mortem injury No. 3 was a gun shot wound of entry 7.5 cm. x 5.5 cm. x muscle deep on the front and lower part of left forearm 1.0 cm. above left wrist joint. This injury vindicates the evidence of the informant that Radhey Shyam fired on the deceased on his hand.

Again the evidence of Sipahi Lal that Appellant Ram Gopal with a pistol fired on the chest of the deceased and when the deceased turned after being struck by the said shot, the Appellant Prem Prakash fired on him is also corroborated by the ante-mortem injuries suffered by the deceased. It is significant to point out that ante-mortem injury No. 2 was a multiple gun shot wound of entry 12.0 cm. x 9.0 cm. x muscle to chest cavity deep on upper part of left side of chest 15.0 cm. above left nipple and this injury lends assurance to the claim of Sipahi Lal that Appellant Ram Gopal fired on the chest of the deceased. Ante-mortem injury No. 1 was a gun shot wound of entry 5.5 cm. x 5.0 cm. x bone deep on upper part of back of depth of pinna 10.0 cm. away from outer end of left eye and this injury is in consonance with the claim of Sipahi Lal that when Baijnath turned after receiving the injury caused by the shot of Ram Gopal, Appellant Prem Prakash fired on him and the shot struck him.

Apart from medical evidence, there are other circumstances, which lend assurance to his evidence. His claim that at the time of the incident he, Baijnath and others were chopping and keeping wood is corroborated by the circumstance that the Investigating Officer S.I. Brijendra Singh (P.W. 5), who visited the place of the incident the same day, found cut wood which he showed in the site plan.

His statement to the effect that blood fell on the place where Baijnath fell down after receiving the injury as a result of firing by Appellant Prem Prakash is corroborated by the circumstance (as we have seen earlier) that the Investigating Officer found blood thereon.

It is significant to point out that although Sipahi Lal was subjected to extensive cross-examination, but nothing could be extracted therefrom which would demolish his credibility.

For the said reasons, in our view, the evidence of Sipahi Lal (P.W. 1) inspires confidence.

We now take up the evidence of Kali Charan (P.W. 3). His evidence shows:

On the date of the incident he and his nephew Manohar had gone to their fields situated in the eastern direction. At about 7.15 a.m. while they were returning therefrom and had reached near the fields of Ram Dayal and Sarju Yadav they heard commotion and saw an altercation going on at the site where disputed trees were lying. Thereafter, Appellant Ram Lotan inflicted three lathi injuries on the person of Sipahi Lal and Appellant Radhey Shyam, who also reached the place of the incident, fired with a country made gun on Baijnath, who rushed to the rescue of Sipahi Lal, and the shot struck Baijnath on his hand. Thereafter, Baijnath ran and reached the grove of Ram Naresh, where Appellants Ram Gopal and Prem Prakash fired on him with pistol and gun respectively. Baijnath fell down as a result of the injury caused by the shot fired by Prem Prakash.

We have gone through the evidence of Kali Charan and make no bones in observing that it inspires confidence. It is significant to point out that his version of the incident is also corroborated by the medical evidence. He stated that Appellant Ram Lotan inflicted three lathi blows on the person of Sipahi Lal and as we have seen Dr. Deen (P.W. 4) found three lacerated wounds attributable to a lathi on the person of Sipahi Lal. We have also seen that his version that Appellant Radhey Shyam fired with a gun and the fire struck the deceased Baijnath on his hand is corroborated by ante-mortem injury No. 3 suffered by the deceased. We have also seen that the prosecution case that Ram Gopal and Prem Prakash separately fired on Baijnath is corroborated by the presence of ante-mortem injury Nos. 2 and 1 respectively. In our view, the medical evidence lends a seal of assurance to his claim of having seen the incident.

His claim of having seen the incident is also corroborated by the recovery of blood by the Investigating Officer from the place where he found the corpse of the deceased.

It is significant to point out that although he was subjected to extensive cross-examination, but nothing could be extracted therefrom which could impair his credibility. It is significant to point out that his cross-examination does not show that he nursed any rancour or ill-will against the Appellants and therefore, implicated them.

For the said reasons, the evidence of Kali Charan (P.W. 3) also inspires confidence.

We make no bones in observing that the defence suggestion given to the informant Sipahi Lal is a tissue of lies. The said suggestion is that the disputed Shisham and Sirsa trees belonged to Appellant Radhey Shyam and he (the informant) and others were stealthily chopping them and when Appellant Radhey Shyam asked them not to do so he and Baijnath assaulted him with a lathi and in self defence Radhey Shyam assaulted them. Apart from the fact that Radhey Shyam was not medically examined and, therefore, there is no medical evidence corroborating the said suggestion, its falsity is manifest by the fact that it fails to explain the fire arm injuries suffered by the deceased. In our view, the learned trial Judge rightly ignored it.

Assurance to the ocular account is also lent by the circumstance that the F.I.R. of the incident was lodged within two hours of the incident taking place. We have seen that the incident took place on 30.9.1981 between 6.30 a.m. to 6.45 a.m. and F.I.R. was lodged the same day by Sipahi Lal P.W. 1 at police station, Hargaon at 8.30 a.m. ; the distance between the place of the incident and the said police station being four miles. It is significant to point out that the essential features of the prosecution case, including the time and place of the incident ; the names of eye-witnesses ; the names of Appellants ; the weapons wielded by the Appellants ; the specific parts attributed to them ; and the motive for the incident have all been mentioned in the F.I.R. In our view, this prompt F.I.R. of the incident speaks volumes and volumes in favour of the fact that the prosecution case is credible.

For the aforesaid reasons, in our view, the learned trial Judge acted correctly in holding the involvement of the Appellant in the incident established.

We, however, make no bones in observing that the learned trial Judge blundered in convicting the Appellants both for the offence of murder of Baijnath as also for that of causing injury to Sipahi Lal with the did of Section 34, I.P.C. In our view, Section 34, I.P.C. would have no application in the instant case. Section 34, I.P.C. reads thus:

Acts done by several persons in furtherance of common intention.-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

A perusal of the said section would show that before it can be invoked, two pre-requisites have to be satisfied, namely ; (a) a criminal act should be committed by several persons, i.e., by more than one person, and (b) the criminal act committed by persons more than one persons should be committed by them in furtherance of their common intention.

It is only when (a) and (b) co-exist, would the several persons conjointly committing a criminal act be liable for it, in the same manner as if it was done by them alone.

It is well-settled that the question of common intention is a question of fact and not one of law. The answer whether a criminal act was committed by persons in furtherance of their common intention would depend on the facts of a given case. Since Section 34, I.P.C. stipulates of a pre-arranged plan/ prior-meeting of minds, the inference whether a criminal act has been committed in furtherance of common intention should only be raised if circumstances irresistibly lead to it. We make no bones in observing that Courts are loathe to infer it unless it is a wholly necessary and irresistible inference from the facts and circumstances of a case.

In this connection, it would be apposite to refer to decision of the Judicial Committee of the Privy Council in the oft-quoted case of AIR 1945 118 (Privy Council) . Therein their lordships have laid down thus:

In their lordships'' view the inference of common intention within the meaning of the term in Section 34 should never be reached unless it is a necessary inference deducible from the circumstances of the case.

A perusal of the said observations of the Privy Council would make it manifest that the inference of common intention u/s 34, I.P.C. should only be reached when the facts irresistibly lead to the inference that the criminal act committed by several persons was committed by them in furtherance of their common intention.

In our view, on the facts of this case, it cannot be irresistibly inferred that the assault on Sipahi Lal or the murder of Baijnath was committed by the four Appellants in furtherance of their common intention or they developed a common intention on the spot to commit the said offences.

So far as the assault on Sipahi Lal is concerned, it is manifest from his evidence that initially only Appellant Ram Lotan armed with a lathi came and when he inflicted the first lathi blow on him (Sipahi Lal), he (Ram Lotan) was alone. Thereafter when he (Sipahi Lal) raised cries, Appellant Radhey Shyam with a country made gun came, but he did not fire on him ; although thereafter Appellant Ram Lotan inflicted two more lathi blows on his person.

It is also manifest from the evidence of Sipahi Lal and Kali Charan that Appellants Ram Gopal and Prem Prakash did not fire on Sipahi Lal and as a matter of fact, were standing armed with fire arms at a fair amount of distance (in the grove of Ram Naresh) from the place where Sipahi Lal was assaulted. There is nothing in their evidence to show that they were standing there as a result of some pre-arranged plan. In such a factual matrix. Section 34, I.P.C. would have no application in respect of assault on Sipahi Lal and, therefore, Appellants Radhey Shyam, Ram Gopal and Prem Prakash would have to be acquitted for the offence punishable u/s 323/34, I.P.C. However, we make no bones in observing that the learned trial Judge rightly convicted Appellant Ram Lotan for the offence punishable u/s 323, I.P.C. in relation to it.

In our judgment, even in respect of the assault on the deceased Section 34, I.P.C. would have no application. We have seen that the deceased Baijnath was not the initial target ; the initial target being the informant Sipahi Lal, who did not accede to the demand of Appellant Ram Lotan that they should not cut the wood. We have also seen that when Appellant Ram Lotan inflicted the first lathi injury on Sipahi Lal, Baijnath was standing at some distance and he thereafter rushed. We have also seen that it was thereafter Appellant Radhey Shyam armed with a country made gun came and fired on Baijnath on his hand but Ram Lotan did not assault Baijnath with a lathi. We have further seen that at the said time, Appellants Ram Gopal and Prem Prakash armed with pistol and gun respectively were standing at a fair distance (in the grove of Ram Naresh) from the place where Baijnath was initially fired upon. There is nothing in the evidence of the two eye-witnesses to show that they were standing there as a result of some prior concert or prior arrangement between Ram Lotan and Radhey Shyam on one hand and they on the other or Radhey Shyam came as a result of some pre-arrangement between him and Ram Lotan. In our view, in these circumstances, it cannot be said that when Appellant Radhey Shyam fired on the hand of Baijnath, he fired in furtherance of common intention of the other three Appellants. In our view, in respect of causing injuries on the hand of Baijnath, Appellant Radhey Shyam would be liable for his individual act. A perusal of the injury suffered by Baijnath on his hand (ante-mortem injury No. 3) shows that blackening was present and it is simple in nature. In our view, the presence of blackening shows that Appellant Radhey Shyam from within four feet of Baijnath fired on him and the probability cannot be excluded that he intentionally caused him a injury on a non-vital part of body, i.e., on left forearm, 1.0 cm. above left wrist joint. In that view of the matter, Appellant Radhey Shyam would only be liable for the offence punishable u/s 324, I.P.C. in relation to the injuries caused to the deceased Baijnath.

We however, have no doubt in our minds that Appellant Ram Gopal who fired with a pistol on the chest of the deceased Baijnath, and Appellant Prem Prakash, who fired on him when he turned back after receiving the fire arm injury at the hands of Ram Gopal, would be individually liable for the offence punishable u/s 302, I.P.C. We have earlier seen that the shot fired by Appellant Ram Gopal struck the deceased on his chest and caused him ante-mortem injury No. 2 and that fired by Appellant Prem Prakash struck him on the upper part of back 10 cm. from outer end of lower eye and resulted in ante-mortem injury No. 1. We have also seen that the evidence of the autopsy surgeon Dr. A. K. Saxena (P.W. 6) is that both ante-mortem injury Nos. `1 and 2 were independently sufficient in the ordinary course of nature to cause the death of the deceased. We find the said opinion of Dr. Saxena to be plausible because earlier we have seen that Dr. Saxena found extensive internal damage beneath both these injuries. Consequently, in our view, the said Appellants would be individually liable for the offence punishable u/s 302, I.P.C.

It is true that Appellants Ram Gopal and Prem Prakash were not charged for the offence u/s 302, I.P.C. simplicitor, but in our view the absence of the same would be no impediment in our way in convicting them thereunder. It is pertinent to mention that the evidence of the informant Siphai Lal, which we have accepted, categorically shows that the shots fired by Ram Gopal and Prem Prakash caused ante-mortem injury Nos. 2 and 1 respectively, suffered by the deceased, which as per the evidence of Dr. Saxena were individually separately sufficient to cause the death of the deceased in the ordinary course. It is significant to mention that in their statements u/s 313, Cr. P.C. the said Appellants were specifically questioned with respect to the said evidence (the questions being 17 and 18) and they gave the stock answer of denial ; an answer which we are not prepared to accept.

In our view, no prejudice would be caused to Appellants Ram Gopal and Prem Prakash if their conviction is converted from one u/s 302/34, I.P.C. to Section 302, I.P.C. In view of the provisions contained in Section 386(b)(ii), Cr. P.C. it is perfectly open for us do so.

In this connection, we feel it apposite to refer to para 44 of the decision of the Apex Court rendered in the case of Willie (William) Slaney Vs. The State of Madhya Pradesh, . Its perusal makes it manifest that any error or omission in framing a charge would only be material if prejudice results.

In our view, in this case no prejudice would be caused to Appellants Ram Gopal and Prem Prakash if they are convicted for the offence punishable u/s 302, I.P.C. in the absence of a charge being framed thereunder.

This leaves us with the only one question, namely, the question of quantum of sentence. We find that the learned trial Judge has awarded a sentence of three months R.I. to Appellant Ram Lotan for the offence punishable u/s 323, I.P.C. In our view, since the incident took place more than 21 years ago, the sentence of the said Appellant deserves to be reduced to the period already undergone by him.

Coming to the question of sentence to be awarded to Appellant Radhey Shyam for the offence punishable u/s 324, I.P.C. in our view, considering the over-all circumstances, the sentence already undergone by him would meet the ends of justice.

Turning to the question as to what sentence should be awarded to Appellants Ram Gopal and Prem Prakash for the offence punishable u/s 302, I.P.C. in our judgment, a sentence of imprisonment for life to each of them would meet the ends of justice.

In the result, this appeal is partly allowed.

We acquit Appellant Ram Lotan for the offence punishable u/s 302/34, I.P.C. and set aside his conviction and sentence thereunder. Although we confirm his conviction for the offence punishable u/s 323, I.P.C., but we reduce his sentence to the period already undergone by him. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.

We acquit Appellant Radhey Shyam for the offence punishable u/s 323/34, I.P.C. and set aside his conviction and sentence thereunder. We also acquit him for that punishable u/s 302/34, I.P.C. and set aside his conviction and sentence thereunder, but instead find him guilty for the offence u/s 324, I.P.C. and sentence him to the period already undergone by him. He is on bail. He need not surrender. His bail bonds shall stand cancelled and sureties discharged.

We acquit Appellants Prem Prakash and Ram Gopal for the offence punishable u/s 323/34, I.P.C. We convert their conviction from one u/s 302/34, I.P.C. to one u/s 302, I.P.C. but maintain their sentence of imprisonment for life. Appellants Prem Prakash and Ram Gopal are on bail and shall be taken in custody forthwith to serve out their sentences.