Ramesh Kumar @ Maheshi and Another vs State of Delhi

Ajit Bharihoke, J.—Appellants Ramesh Kumar @ Maheshi and Raj Kumar @ Raju have been convicted u/s 302 IPC read with Section 34 IPC for having committed the murder of the deceased Kamal and sentenced to undergo imprisonment for life and also to pay fine of Rs. 2000/- each respectively, in default of payment of fine to suffer rigorous imprisonment for the period of six months respectively.

Briefly stated, case of the prosecution is that on 30.04.1994 at about 11.00 PM, deceased Kamal was having an argument with his mother Shakuntala Devi on the issue of serving hot meals, in front of the tent of the complainant Bablu. The appellant Ramesh Kumar @ Maheshi came out of his tent and reprimanded the deceased saying "kya tune khap khana machaya hua hai". He also started hurling abuses and made some indecent remarks against the character of wife of the complainant. The deceased requested him to leave but the appellant Ramesh kept on abusing. Raj Kumar @ Raju appellant also joined the brawl and caught hold of the deceased from his hair. While the complainant Bablu proceeded to save his brother, the appellant Ramesh @ Maheshi fetched a bottle from his tent and after breaking it, he stabbed the deceased Kamal with the broken bottle on the left side below the chest. Both the appellants fled away from the spot of occurrence. Injured Kamal was taken to the Agrasen Hospital in the three-wheeler scooter of Narender, where he was declared brought dead.

PW3 Baldev Raj conveyed the information to the Police. It was recorded as DD No. 27A dated 30.04.1994 at the Police Station Paschim Vihar. Copy of the DD report was forwarded to SI Ram Chander for verification. He went to C-256, Relief Camp, Peera Garhi belonging to PW2 Ashwani Kumar and found that incident had taken place near C- 82, Relief Camp, Peera Garhi. Then, he went to the spot of occurrence but no eye witness was available there. He came to know that the injured had been removed to the Hospital. He went to the Agrasen Hospital and found that the deceased had been declared dead. No eye witness was available at the Hospital, therefore, he came back to the spot of occurrence, where he met the complainant Bablu and recorded his statement Ex.PW6/A and sent it to the Police Station for the registration of formal FIR.

SI Ram Chander seized the blood stained earth and sample earth from in front of tent of the complainant and also from in front of tent of PW Narender vide respective Seizure Memos Ex.PW2/A and PW18/D. He recorded the statement of the witnesses, arranged for sending dead body for post mortem and collected the post mortem report Ex.PW9/A. He also sent the seized material to CFSL and obtained the report of CFSL Ex.PW18/P.

Appellant Ramesh Kumar was arrested on the same day by SI Ram Chander from Mangolpuri flyover on the pointing of complainant PW6 Bablu. Appellant Raju could not be traced till he surrendered in court on 03.07.1994. On completion of investigation, appellants were sent for trial for having committed the offence punishable u/s 302 IPC read with Section 34 IPC.

Both the appellants were charged accordingly. They pleaded not guilty and claimed to be tried.

On conclusion of trial, the learned trial Judge relying upon the testimony of PW8 Shakuntala Devi held both the appellants guilty for the offence punishable u/s 302 IPC read with Section 34 IPC and convicted and sentenced them accordingly.

Ms. Seema Gulati, learned Counsel for appellant No. 1 Ramesh Kumar @ Maheshi and Ms. Meena Chaudhary Sharma, learned Counsel for appellant No. 2 Raj Kumar @ Raju have argued almost on the similar lines. Their submission is two-fold. Firstly, it is contended that the learned Trial Court has fallen in error in relying upon uncorroborated testimony of PW8 Shakuntala Devi whose credibility is suspect because of various contradictions and infirmities discussed below. Secondly, it is submitted that as per the case of prosecution, the occurrence took place at the spur of moment without any pre-meditation and the weapon of offence is a broken glass bottle, therefore, neither there could have been any intention to kill the deceased nor the appellant Ramesh Kumar @ Maheshi could have known that his act was so imminently dangerous to cause death of the deceased. Thus, it is submitted that even as per the prosecution case, the offence committed by the accused Ramesh Kumar @ Maheshi would attract Exception 4 to Section 300 IPC and fall within the definition of culpable homicide not amounting to murder, punishable u/s 304 Part II IPC. It is also submitted on behalf of the accused Raj Kumar @ Raju that in the factual matrix of the case, the common intention on the part of the accused Raj Kumar @ Raju to stab the deceased cannot be inferred, as such his conviction u/s 302 with the help of Section 34 IPC is bad in law.

On the other hand, the learned Counsel for the State has submitted that PW8 Shakuntala Devi is a natural witness whose presence at the spot cannot be doubted, as the incident started with the heated exchange of arguments between her and the deceased regarding serving of hot food and that there was no reason for her to falsely implicate the appellants and let the real culprit goes scot free. He has thus submitted that the learned trial Judge has rightly convicted the appellants u/s 302 read with Section 34 IPC.

We have considered the submissions made by the respective counsels for the parties and the material on record.

First challenge to the reliability of the testimony of PW8 Shakuntala Devi is that presence of PW8 Shakuntala Devi at the spot of occurrence is highly doubtful because PW1 Narender Kumar who took the deceased to the hospital in a three-wheeler scooter did not say that PW8 Shakuntala Devi accompanied the deceased to the hospital. It is also submitted that had Shakuntala Devi accompanied the deceased to the hospital, her name should have been find mention in the MLC Ex.PW11/A in the column of brought by, which is not so.

We are not impressed with above mentioned submission. So far as first limb of argument is concerned, it is against the facts of the case. Perusal of testimony of PW1 Narender Kumar reveals that he has categorically stated in his cross-examination that the mother of the injured Kamal along with his father and brother had requested him to take the injured to the hospital and he has also stated that all of them sat in a scooter with the injured for going to the hospital. From this, it is apparent that PW8 Shakuntala Devi, mother of the deceased had actually accompanied him to the hospital. PW5 Kishan Lal, father of the deceased, has also confirmed this fact by stating in cross-examination that his wife also accompanied them to the hospital. Non-mention of name of Shakuntala Devi in the MLC is of no consequence. While preparing the MLC, the concerned Doctor is not supposed to seek information about each and every person who had accompanied the deceased, it is suffice to mention the name of any one person who took the deceased to the hospital. Thus, we do not find anything wrong if the Doctor has mentioned the name of complainant Bablu only in the MLC Ex.PW11/A in the column meant for the purpose. Thus, we find no reason to suspect the presence of PW8 Shakuntala Devi at the spot.

Next submission on behalf of the appellants is that testimony of PW8 does not inspire confidence as she has contradicted herself on all important aspects of the prosecution case and her statement made in the court is contradictory to her own statement made u/s 161 Cr.P.C. during the investigation of the case. Expanding on the argument, it is pointed out that PW8 Shakuntala Devi has deposed in the court that when her son Kamal was hit by the appellant Ramesh Kumar @ Maheshi, she ran to the house of PW3 Baldev Raj and told him that her son has been hit by Maheshi with a broken glass bottle and requested him to call the Police, which is an improvement upon her statement u/s 161 Cr.P.C, that she told Baldev Raj that a fight was going on at her house and requested him to call the Police. It is further pointed out that witness in her cross-examination had initially stated that her son Bablu and daughter-in-law Beena had not seen the occurrence as they were inside the tent, whereas in later part of cross-examination she had admitted that she stated to the Police in her statement u/s 161 Cr.P.C. that after the appellant assaulting the deceased, the appellant tried to attack Bablu who managed to save himself by moving backwards and she has also deposed that she had stated to the Police during investigation that Bablu had come to save Kamal. It is also pointed out that the witness in her examination-in-chief has stated that the appellant Raj Kumar caught hold of her son Kamal by hair and the appellant Maheshi, after breaking a glass bottle, stabbed her son with the broken bottle, whereas in her cross-examination she changed her version and stated that appellant Maheshi had brought broken bottle from his tent. Learned Counsels for the appellants have urged us to infer on the basis of aforesaid contradiction that PW8 Shakuntala Devi has not seen the occurrence or at least her version is not reliable.

We do not find any merit in this contention. The contradictions pointed out by the learned Counsel for the appellants are inconsequential. The law on appreciation of evidence is well-settled. The Court while appreciating the evidence, is not supposed to do hair splitting and give meaning to each and every word uttered by the witness. The testimony of a witness is to be appreciated as a whole in overall context of facts and circumstances of the case and if, on analysis the testimony appears to be natural and truthful, it cannot be given a go bye merely because of some minor contradictions here and there, which are bound to occur in the testimony of a truthful witness because of failure of memory due to lapse of time. On overall consideration of the testimony of PW8 Shakuntala Devi, it appears to be truthful. Thus, we do not find any merit in the contention of the appellants.

Next submission on behalf of the appellant is that PW8 Shakuntala Devi has categorically stated that the deceased had been served food by her and he was eating it at the time when the incident took place. As per the testimony of PW8 Shakuntala, Rukka Ex.PW7/A as also the MLC Ex.PW11/A, deceased Kamal reached at Agrasen Hospital at 11.55 PM and he was declared dead. Death Certificate Ex.PW11/C issued by the Hospital also gives the time of death as 11.55 PM. It is pointed out that Dr. K.L. Barua (PW9) in his testimony has stated that on post-mortem examination, he found semi-digested food in the stomach of deceased and he also stated that it takes about one to four hours normally for the food to be digested partly. Thus, it is argued that as per medical evidence, if the deceased was eating food at the time of incident i.e. 11.00 PM and he died sometime between 11.00 PM to 11.55 PM, the food which he was taking could not have been partly digested, therefore, the version of PW8 regarding the reason which prompted the incident is doubtful and the entire foundation of the prosecution face collapses. The Learned Counsels for the appellants have, therefore, urged us to infer that PW8 Shakuntala is a planted witness.

The argument, in our view, is mis-conceived and based upon the wrong reading of the evidence. PW8 Shakuntala Devi has nowhere stated in her testimony that her son was eating meals at the time of incident.

Learned Counsel for the appellant has further submitted that the investigation in this case has been unfair and tainted. Firstly, it is submitted that perusal of the post mortem report Ex.PW9/A would show that the Doctor concerned has not mentioned the description of document along with the post mortem report. It is further submitted that neither the Doctor concerned nor the Investigating Officer has given any clarification in this case. Even perusal of the death report Ex.PW18/M would show that in the report, no description of the appellant or the witness to the occurrence have been mentioned. We are not impressed with this contention. Perusal of the death report Ex.PW18/M would show that it is typed on a printed performa wherein all important columns have been filled and there is no column in this performa about the name of the assailant or the witness. It may be pointed out that name of the persons who identified the dead body, namely, PW6 Bablu, PW7 Beena are mentioned in the report. Further, in our view, the Doctor concerned has proved the post mortem report. If at all the appellants wanted to have some clarification about the time of receipt of dead body and accompanying documents, they could have sought clarification in the cross-examination by PW9 Dr. L.K.Barua or the Investigation Officer. They have not opted to do so, therefore, now the appellants cannot be permitted to make an issue out of this minor discrepancy.

It is further argued that this is a case of delayed FIR. The learned Counsel for the appellants have submitted that the Police endorsement on the Rukka Ex.PW7/A would show that the incident took place on 30.04.1994 at 11.00 PM and the time of sending the Rukka to the Police Station is 2.50 AM on 01.05.1994. FIR was registered after a lapse of four hours from the time of incident at 3.10 PM. It is submitted that there is no reasonable explanation for such a long delay, therefore, a possibility of manipulation cannot be ruled out. We do not find merit in this contention. The delay of four hours in recording of FIR is of no consequence, particularly when, in the initial information received at the Police Station, place of occurrence was incorrectly described and thereafter, when the Investigating Officer reached at the place of occurrence on the place mentioned in DD No. 27A, he could not find any witness as they had gone to the Hospital along with the injured, when he had reached at the Hospital, the witnesses had left from their and he had to come back to the spot of occurrence where he recorded the statement of PW7 Bablu. The above exercise obviously must have consumed some time, therefore, the delay is properly explained and do not provide a reason for doubting the testimony of PW8 Shakuntala.

The learned Counsels for the appellants have submitted that PW8 Shakuntala Devi in her cross-examination has admitted that the tent of her son Bablu is distinct from her tent. They have submitted that in the examination-in-chief, PW8 Shakuntala Devi while deposing about the incident had inter alia stated "my son was sitting on the cot outside our tent....I gave him food and asked Kamal to take food. I was sitting with him on the cot. Ramesh came out of his tent as he used to live near our neighbourhood", which imply that the incident took place in front of her tent as distinct from the tent of her son Bablu which version is belied by the rough site plan Ex.PW18/C and the scaled site plan Ex.PW12/A, wherein the place of occurrence is shown in front of the tent of Bablu. From this, appellants have urged us to infer that presence of PW8 Shakuntala Devi at the spot is highly doubtful and her version is not reliable. We are not impressed with this contention. The words used by the witness to describe the place of incident were "in front of our tent". It is not unnatural for a mother to refer to house of her sons as "our house" despite of the fact that the mother is living in a different house in the locality. Therefore, in our view, this discrepancy is not so material to discard the otherwise reliable testimony of the witness.

It is further submitted that as per the post mortem report, there was a baniyan lying on the body of the deceased which has not been seized by the Police and non-production of said baniyan has prejudiced the appellants in their defence as the corresponding cut marks in baniyan could have thrown light on the correctness or otherwise of the prosecution case. Ideally, the Investigating Officer should have seized the baniyan, but this lapse on the part of the Investigating Officer by no means can be basis to discard the otherwise reliable and trustworthy ocular version of PW8 Shakuntala Devi.

The learned Counsel for the appellant Raj Kumar @ Raju has submitted that even if the prosecution story is taken to be true, then also there is nothing on the record to suggest that the appellant Raj Kumar @ Raju shared common intention with his brother Ramesh Kumar @ Maheshi to cause injury to the deceased with the broken bottle. Thus, her submission is that the learned Trial Court has wrongly invoked Section 34 IPC to convict appellant Raj Kumar @ Raju u/s 302 IPC read with Section 34 IPC.

To appreciate the contention of the learned Counsel for the appellant Raj Kumar @ Raju, it would be useful to reproduce Section 34 IPC, which 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.

Bare reading of Section 34 suggests that this Section does not create a substantive offence. It lays down a principle of law when two or more persons joined hands in an assault on a third person they become responsible for the injury caused to such person to the extent to which they had common intention to cause those injuries irrespective of whether or not injury has been caused by the person concerned or his associate. The common intention can be proved either by the direct evidence or it can be gathered from the facts and circumstances of the case.

In the instant case, the facts which emerge from the evidence are that the cause of altercation was loud arguments between the deceased and his mother regarding food, which annoyed the appellant Ramesh Kumar @ Maheshi and resulted in altercation. Appellant Raj Kumar @ Raju, who is brother of appellant Ramesh Kumar also came and joined the altercation and he caught hold of the deceased by his hair. In the meanwhile, appellant Ramesh Kumar @ Maheshi suddenly fetched a glass bottle, broke it, and stabbed the deceased. From these facts, when there is no evidence of any previous enmity between the appellant Raj Kumar @ Raju and the deceased, we find it difficult to infer that the appellant Raj Kumar @ Raju also shared common intention with his brother to stab the deceased with a broken bottle. The fact, that the incident occurred at a spur of moment, rules out any possibility of development of common intention between the appellant Raj Kumar @ Raju and the assailant Ramesh Kumar @ Maheshi at the spot. We are, therefore, of the view that conviction of the appellant Raj Kumar @ Raju u/s 302 with the help of Section 34 IPC for the act of stabbing by the appellant Ramesh Kumar @ Maheshi cannot be sustained.

The learned Counsel for the appellants have submitted that the evidence led by the prosecution shows that the deceased was stabbed by the appellant Ramesh Kumar @ Maheshi with a broken glass bottle in a sudden altercation. Therefore, it is submitted that the instant case falls within Exception 4 of Section 300 of the IPC, as such the conviction u/s 302 IPC is bad in law.

In order to appreciate the aforesaid plea, we consider it necessary to extract the relevant Section.

Murder

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or:

...

...

...

Exception 4-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Learned Counsel for the appellant in support of his plea has referred to the judgments of the Apex Court. Learned Counsel submitted by relying on Tholan v. State of Tamil Nadu 1984 SCC (Criminal) 164, that where in a sudden fight a single blow given with a knife was held to fall within Section 304 Part II of the IPC, a sudden fight like the present one where a single blow is given on the head would also invite the same provision. The relevant observations are reproduced as under:

There arose a situation in which appellant probably misguide by his own egocentric nature objected as to why Sampat should ask him to leave the place and in this background he gave one blow with a knife which landed on the right side chest of the deceased, which has proved fatal. Could the appellant be said to have committed murder? In other words, whether Part I or Part III of Section 300, I.P.C. would be attracted in the facts of this case. Even Mr. Rangam learned Counsel for the State of Tamil Nadu could not very seriously contend that the appellant intended to commit murder of Sampat. His submission was that at any rate appellant when he wielded a weapon like a knife and gave a blow on the chest, a vital part of the body, must have intended to cause that particular injury and this injury is objectively found by the medical evidence to be fatal and therefore Part III of Section 300 would be attracted. On this aspect, the decisions are legion and it is not necessary to recapitulate them here merely to cover idle parade of familiar knowledge. One can profitably refer to Jagrup Singh v. State of Haryana, Randhir Singh v. State of Punjab,; Kulwant Rai v. State of Punjab and Hari Ram v. State of Haryana. To this list two more cases can be added Jagtar Singh v. State of Punjab and Ram Sunder v. State of U.P. Having regard to the ratio of each of these decisions, we are satisfied that even if Exception I is not attracted the requisite intention cannot be attributed to the appellant. But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death. In such a situation, he would be guilty of committing an offence u/s 304 Part II of the Indian Penal Code. Having regard to the circumstances of the case a sentence of 5 years would be quite adequate.

Learned Counsel also referred to the elucidation in respect of the 4th exception of Section 300 of the IPC made in Ravindra Shalik Naik and Others Vs. State of Maharashtra, as under:

The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men''s sober reasons and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ''sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender''s having taken undue advantage or acting in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision means ''unfair advantage''. These aspects have been highlighted in Dhirajbhai Gorakhbhai Nayak v. State of Gujrat (2003) (5) Supreme 223 , Prakash Chand Vs. State of H.P., ; Byvarapu Raju Vs. State of Andhra Pradesh and Another, and Buddu Khan v. State of Uttarakhand SLP (Crl.) No. 6109/08 disposed of on 12.1.2009.

Lastly, learned Counsel has referred to Pappu @ Hari Om Vs. State of Madhya Pradesh, to make out a distinction between the offence of murder as against culpable homicide not amounting to murder as defined u/s 300 of the IPC in the following terms:

This brings us to the crucial question as to which was the appropriate provision to be applied. In the scheme of the IPC culpable homicide is genus and ''murder'' its specie. All ''murder'' is ''culpable homicide'' but not vice-versa. Speaking generally, ''culpable homicide'' sans ''special characteristics of murder is culpable homicide not amounting to murder''. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide. The first is, what may be called, ''culpable homicide of the first degree''. This is the gravest form of culpable homicide, which is defined in Section 300 as ''murder''. The second may be termed as ''culpable homicide of the second degree''. This is punishable under the first part of Section 304. Then, there is ''culpable homicide of the third degree''. This is the lowest type of culpable homicide and the punishment provided for it is also the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304.

The academic distinction between ''murder'' and ''culpable homicide not amounting to murder'' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide Subject to certain exceptions if the act by which the death is culpable homicide is murder caused is done - if the act by which the death is caused is done:

INTENTION

(a) with the intention of causing (1) with the intention of death; or causing death; or

(b) with the intention of causing (2) with the intention of such bodily injury as is likely causing such bodily injury to cause death; or as the offender knows to be likely to cause the death of the person to whom the harm is caused; or

(3) With the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or

KNOWLEDGE

****

(c) with the knowledge that the act 4) with the knowledge that is likely to cause death. the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

In the above referred case, the exchange of hot words between the accused and the deceased resulted in a shot being fired resulting in an injury on the chest of the deceased which was held to be a fit case for conviction u/s 304 Part II of the IPC with a custodial sentence of eight years.

The legal principle enunciated aforesaid, in our view, would squarely apply to the facts of the present case, which is a case of single blow given with a broken glass bottle in the heat of the moment. There is no evidence of previous rivalry or enmity between the appellants and the deceased. The altercation took place because of a trivial reason i.e. annoyance caused to the appellant Ramesh Kumar @ Maheshi because of loud argument between the appellant and his mother, as a result of which he fetched a bottle, broke it and stabbed the deceased in the heat of moment. Since there is no evidence of any pre-meditation or motive on the part of the appellant, the case squarely falls within the 4th Exception to Section 300 IPC. Thus, the appellant Ramesh Kumar @ Maheshi is liable to be convicted under Part II of Section 304 of the IPC and not u/s 302 IPC. Regarding the accused Raj Kumar @ Raju, we have already concluded that he cannot be held guilty for the act committed by the appellant Ramesh Kumar @ Maheshi with the help of Section 34 IPC.

In view of the circumstances aforementioned, we set aside the conviction of the appellant Raj Kumar @ Raju u/s 302 read with Section 34 IPC. He is, accordingly, acquitted.

So far as appellant Ramesh Kumar @ Maheshi is concerned, his conviction u/s 302 read with Section 34 IPC is converted into conviction u/s 304 Part II IPC and we impose a sentence of five years rigorous imprisonment on appellant Ramesh Kumar @ Maheshi which would be suffice in the given facts of the case. The sentence and fine imposed by the learned Trial Court in terms of the impugned judgment and order on sentence, accordingly, stand modified.

The appeal is allowed to the aforesaid extent. As per the nominal roll submitted on record, appellant Ramesh Kumar @ Maheshi has already undergone imprisonment for a period of 04 years 10 months and 11 days, besides he has earned total remission for a period of 08 months and 07 days. Thus, he has completed the period of sentence awarded to him.

Both the appellants are on bail. Their respective bail bonds and surety bonds are cancelled and discharged.