Santosh Alias Raju vs State Of Madhya Pradesh

Ashok Kumar Joshi, J.

Appellants have filed this Appeal under Section 374 of the CrPC assailing the judgment dated 3.8.2005 passed by First Additional

Sessions Judge, Vidisha in Sessions Trial No.176/2004, whereby appellant No.1-Santosh has been convicted under Section 302 of the IPC and

appellant No.2-Toran Singh has been convicted under Section 302/34 of the IPC and each of the appellants is sentenced to life imprisonment.

Admittedly, both appellants are real brothers.

Prosecution's case in brief is that on the date of incident, 24th July, 2004 at 18.00 hours complainant Narayan Singh (PW-8) lodged FIR (Ex.D/3) to

the effect that on same day at 14=30 hours complainant Narayan Singh, Amar Singh and Prithviraj were doing their labour work in agricultural lands

(garden) of Govind and Mahendra Yadav situated on the bank of Betwa river near village Jatrapura. Complainant Narayan Singh was fixing fence

and Prithviraj and Amar Singh were grazing cattle. At 2=30 pm appellant Santosh Kushwaha and his elder brother whose name was not known to the

complainant at that time, came from Mohangiri Vidisha at bank of Betwa river and placed net in the river for fishing. Amar Singh obstructed both

these brothers from fishing on jetty in front of their agricultural land, then appellant Santosh asked the complainant that what he would do ? Then,

Amar Singh replied that Govind Patel had restricted, hence he would not permit them for fishing. Thereafter, elder brother of appellant Santosh in

drunken state started shaking Amar Singh violently. Amar Singh tried to push elder brother of Santosh, then Santosh  took out a Chhuri (knife) which

was kept in worn underwear (chadda) and assaulted with that chhuri (knife) on chest of Amar Singh and chhuri entered into the chest of Amar Singh

and blood started oozing out, then complainant Narayan Singh and Prithviraj started crying then both brothers fled away. Amar Singh after receiving

injury started tumbling. Santosh's elder brother during running assaulted with his stick on complainant two times which caused injury on complainant's

head and shoulder. Complainant reached Vidisha and informed Govind Patel (PW-5) about the incident, thereafter seriously injured Amar Singh was

taken to Vidisha Hospital by tractor but in the way he succumbed to the injuries. Leaving the dead body at hospital complainant Narayan reached the

police station Kotwali, Vidisha and lodged FIR (Ex.D/3) which was scribed by SHO Arun Kumar Dubey (PW-10).

After lodging the FIR, complainant Narayan Singh (PW-8) was sent to District Hospital, Vidisha where on 24th July, 2004 Dr. S.C. Bansal (PW-3)

examined him and found four contusions on the person of Narayan Singh and recorded MLC (Ex.P/6). On 24th July, 2004 Dr. S.C.Bansal also sent

written intimation (Ex.P/7) that dead body of Amar Singh was brought to Vidisha Hospital at 5=45 pm by Karan Singh.

Sub-Inspector Manoj Patwa on 24th July, 2004 after issuing Safina Form (Ex.P/8) prepared inquest memo (Ex.P/9) after seeing the dead body of

Amar Singh in presence of panch witnesses and submitted an application for post mortem.

Dr. Sumat Prakash Jain (PW-2) on 25th July, 2004 at 9=10 am started autopsy of the dead body of Amar Singh and recorded post mortem report

(Ex.P/4). Dr. Jain also sealed a shirt, underwear and lungi found on the dead body in a packet and sent the sealed packet to relating police station.

Investigating Officer Arun Kumar Dubey (PW-10) during investigation on 25th July 2004 inspected the scene of occurrence and prepared spot map

(Ex.P/15) and recorded police statements of eye-witnesses and other witnesses. Arun Kumar Dubey (PW-10) on 25th July, 2004 arrested appellant

Toran vide arrest memo (Ex.P/13) and arrested appellant Santosh vide arrest memo (Ex.P/12) and recorded memorandum (Ex.P/10) on disclosure

statement given by appellant Santosh regarding chhuri (knife) and on same day appellant Santosh took out a katar shaped chhuri from the room of

upper story of his elder brother Toran Singh's house, which was seized in presence of panch witnesses vide seizure memo (Ex.P/11). On 28th August

2004, Investigating Officer Arun Kumar Dubey (PW-10) sent in a sealed packet seized chhuri with query letter (Ex.P/5) to Dr. Sumat Prakash Jain,

who had conducted autopsy. On 1st September, 2004 Dr. Sumat Prakash Jain after seeing the seized chhuri recorded his answer to the query letter in

its lower portion. Seized articles were sent for examination to FSL Gwalior with a covering letter dated 2nd September, 2004 of Superintendent of

Police Vidisha. After completing formal investigation, charge sheet was filed in the Court of ACJM Vidisha, who committed the criminal case to

Sessions Judge, Vidisha, who transferred arisen sessions trial to above mentioned trial Court.

Trial Court framed charge under Section 302 of the IPC against appellant No.1-Santosh @ Raju and framed charges under Section 302/34 and 323

of the IPC against appellant No.2-Toran Singh. Both appellants abjured their guilt. Ten prosecution witnesses were examined before the trial Court. It

was the defence of both the appellants that they have been falsely implicated. Jai Prakash (DW-1) and Pooran Chand Singhai (DW-2) were

examined for appellants as defence witnesses. The trial Court acquitted the appellant No.2-Toran Singh from the charge of section 323 of the IPC in

relation to complainant Narayan Singh, but it convicted and sentenced appellant No.1-Santosh for charged offence against him and appellant No.2-

Toran Singh for offence punishable under Section 302/34 of the IPC.

Learned senior counsel for the appellants vehemently contended that complainant Narayan Singh (PW-8) deposed in his cross-examination that on

next date after the incident he saw both the arrested appellants in police station and thereafter his thumb impression was taken on report and even the

name of appellant-Toran Singh was not mentioned in FIR. The trial Court erred in placing reliance on interested testimony of complainant Narayan

Singh (PW-8) and Dhumabai (PW-9), widowed wife of deceased Amar Singh. It is further argued that as the alleged third eye-witness Prithviraj

Singh was not examined before the trial Court, hence adverse inference should have been drawn against prosecution. It is also argued that according

to prosecution's case deceased and appellants were not well acquainted with each other and residents of different villages and having no previous

enmity and incident occurred suddenly due to obstruction by deceased from fishing in Betwa river, hence alternatively it is argued that appellants were

not having common intention to cause death of deceased Amar Singh and it is also clear from the evidence when Toran Singh started scuffling with

deceased, then Santosh took out his chhuri, which was kept in hidden underwear, hence it was not proved that the deceased was murdered in

furtherance of common intention of both appellants. Therefore, alternatively it is also prayed that at the most offence punishable under Section 304

Part-I of the IPC appears to be proved only against appellant No.1-Santosh.

Per Contra, appearing Public Prosecutor supporting the impugned conviction and sentence of each appellant assailed in this appeal contends that

the trial Court has properly and legally appreciated and analyzed the entire evidence available on record. Hence, dismissal of the appeal is prayed.

It is clear from the evidence of Dr. Sumat Prakash Jain (PW-2) and his post mortem report (Ex.P/4) that on 25th July, 2004 at 9=10 am at the

time of starting of post mortem of deceased Amar Singh's dead body, he found following injuries:-

“Two incised wounds seen in middle and lower portion of chest, upper wound and lower portion of chest, upper wound in mid-sternal region also

involving shirt also, upper incised wound, 1 inch side by side, ½ inch upper to down depth 3 inches, piercing the sternal bone. Lower would having

some soft tissues dimension same and blood was oozing out from both wounds.â€​

Dr. Sumat Prakash Jain (PW-2) deposed that on dissection of the dead body, it was found that blood was clotted on diaphragm of chest, ribs and

internal organs were also injured. The upper surface of right portion of heart was bearing an incised wound having 2 inches depth and blood was also

clotted in abdominal cavity and first incised wound had pierced in sternum bone whereas second incised wound has injured liver. Dr. Jain opined that

in his opinion, the deceased died due to excessive bleeding as deceased's liver and heart had received injuries and died due to cardio respiratory failure

within12 hours from starting of his post mortem.

Dr. Sumat Prakash Jain (PW-2) also deposed that on 1.9.2004 in reply to the query letter of Investigating Officer (Ex.P/5), after seeing the seized

weapon he opined that both incised wounds of deceased were having size 1x1/2x3 inches and hence, both wounds could be caused by sent weapon.

He also proved his written answer in lower portion of same query letter (Ex.P/5).

It would be significant to mention here that in FIR (Ex.D/3) only one blow from chhuri is mentioned but it is clear from the medical evidence that

actually two incised wound were caused in the incident to the deceased. Panch witness Raghuvir Singh (PW-4) has admitted his signatures on safina

form (Ex.P/8) and inquest memo (Ex. P/9) and in hand written portion of the inquest memo (Ex.P/9) also, it is clearly mentioned that in total two

incised wounds were visible at the time of preparing this inquest memo (Ex.P/9) by the relating police officer in presence of five panch witnesses.

Hence, it is clear from the evidence available on record that on 24 th July, 2004 deceased Amar Singh met with homicidal death.

Dr. S.C.Bansal (PW-3) deposed that on 24th July, 2004 in Vidisha Hospital he examined complainant Narayan Singh (PW-8) and found four

contusions including one over his temple region and these injuries were simple in nature and appearing to be caused within six hours from the time of

his examination and he also proved his MLC (Ex.P/6). Complainant Narayan Singh (PW-8) deposed that he was having injury and sent for medical

examination but in his deposition he did not depose that how he received injuries. It appears that no question was put to complainant by prosecution

regarding author of his injuries. Hence, it was not found proved by the trial Court that any of the accused/appellants caused injuries to complainant and

acquittal of appellant No.2-Toran Singh under Section 323 of the IPC is even not challenged by the prosecution by filing any appeal.

Complainant Narayan Singh (PW-8) and Dhumabai (PW-9) deposed in favour of prosecution's case before the trial Court as eye-witnesses to the

incident and Govind (PW-5) and Mahendra Yadav (PW-7) are those witnesses who received information regarding incident from other persons.

Complainant Narayan Singh (PW-8) deposed that on the date of incident, he was doing his labour work with Amar Singh and Prithviraj in Govind

(PW-5)'s agricultural land known as 'Sudi Wala Khet'. Complainant deposed that Amar Singh was grazing cattle and at about 2=30 pm appellant and

his brother came at the bank of Betwa river for fishing then Amar Singh obstructed the appellants that they should not kill fish there, then appellant

Santosh replied that he will kill fish at that place only then Amar Singh replied that as there is a jetty for drinking water and fishing may cause pollution,

hence he will not permit them to fishing there; thereafter, appellant Santosh's brother Toran, who was in drunken state, started scuffling with Amar

Singh and in the meanwhile appellant Santosh took out his knife which was kept in his chadda (underwear) and inflicted blow by that chhuri on

appellant's chest, thereafter blood was oozing from chest of deceased and thereafter Amar Singh started tumbling. Narayan Singh also deposed that

he was with Prithviraj and Amar Singh's wife Dhuma Bai was also rooting up soyabin, who also witnessed the incident. Complainant Narayan Singh

deposed that thereafter he went to Vidisha and informed Govind (PW-5) and Govind proceeded to scene of occurrence and thereafter he (Narayan)

reached to police station for lodging the FIR and he put his thumb impression over report and thereafter he was sent for medical examination as he

was also having injuries.

Arun Kumar Dubey (PW-10) deposed that he scribed the FIR (Ex.D/3) and registered relating crime and also registered merg report (Ex.P/14)

and sent complainant Narayan Singh for his medical examination.

Dhumabai (PW-9) deposed that her husband Amar Singh was working in the agricultural land of Govind Patel and on the date of incident when

her husband was grazing cattle, then both appellants came there and at that time she along with Prithviraj and Narayan was also present there and her

husband obstructed the appellants from fishing but as Toran was in drunken state, Toran started pushing her husband towards Betwa river and on

hearing cry of her husband, she also reached near her husband after running and she saw that appellant Santosh took out a chhuri from his chadda

(underwear) and inflicted it on her husband's chest and blood was oozing out from wound and her husband fell down. Thereafter Narayan went to

inform Govind and later on Govind came on bike at the scene of occurrence and saw lying Amar Singh, thereafter injured Amar Singh was taken to

Vidisha Hospital after keeping him in a trolley attached to a tractor and she also went to hospital, but doctors after seeing her husband declared him

dead.

Govind (PW-5) and his real brother Mahendra Yadav (PW-7) have deposed that both of them were informed by complainant Narayan about the

incident at about 4=00 pm on the date of incident itself and they were informed that on obstructing from fishing by Amar Singh appellants Santosh and

Toran assaulted Amar Singh and Santosh assaulted with chhuri. Govind deposed that with Narayan Singh he went to his field and saw seriously

injured Amar Singh, who was alive at that time and with Mahendra they took injured to Vidisha Hospital but doctor declared Amar Singh dead.

Mahendra Singh (PW-7) deposed that thereafter he went with complainant Narayan Singh to Police Station for lodging report. It is clear that as

hearsay witnesses, Govind (PW-5) and Mahendra Yadav (PW-7) have totally corroborated complainant Narayan Singh's evidence.

Much emphasis has been given by learned senior counsel for the appellants on the facts deposed by complainant Narayan Singh (PW-8) in his

cross-examination (para 8) that at the time of lodging of report he was not knowing the name of appellant Toran Singh and later on Toran Singh's

name was intimated to him by Govind (PW-5) and on next day at 10=00 am after arrest of the appellants police called him at police station and at that

time he identified the appellants, thereafter police took his thumb impression over FIR. It is clear from the total evidence of Narayan Singh that he is

an illiterate person and in FIR (Ex.D/3) lodged by him name of appellant Santosh is clearly mentioned and it is also mentioned that he was resident of

Mohangiri, Vidisha and appellant Santosh's elder brother is clearly mentioned as co-accused.

In the FIR (Ex.D/3) as well as in merg report (Ex.P/14) it has clearly been mentioned that Amar Singh is killed by Santosh and his elder brother.

Investigating Officer Arun Kumar Dubey (PW-10) also deposed that the copy of merg report (Ex.P/14) was immediately sent to SDM Vidisha and he

also clearly deposed that copy of the FIR (Ex.D/3) was sent to CJM Vidisha by dispatch No. 1405 dated 24.7.2004 and the received copy of FIR in

the Court of CJM is exhibited as D-3(C) at the time of recording of deposition of Arun Kumar Dubey (PW-10), which also bears the above mentioned

dispatch number with date 24.7.2004. It is to be remembered that except complainant Narayan Singh, there were other persons present including

Prithviraj Singh and Dhumabai. Dhuma Bai (PW-9) clearly deposed in her cross-examination (para 5) that the names of both appellants were

intimated to her by her son Arjun Singh. This fact is appearing in the evidence of complainant Narayan Singh (PW-8) and Dhuma Bai (PW-9) that

even after incident, at the time of recording of their deposition before the trial Court, they were residing in some Sudiwala Baghicha, where at the time

of incident they were residing. Even no reason is suggested in their cross-examination for falsely implicating appellants. In such situation it could not

be inferred that actually the FIR (Ex.D/3) was recorded after arrest of both the appellants on next date, because in that situation the name of Toran

Singh would have beenclearly mentioned in the FIR. Hence, above mentioned argument is having no substance.

Much emphasis has also been given by learned senior counsel for the appellants on some contradictions and omissions appearing from deposition

of complainant Narayan Singh (PW-8) and his FIR (Ex.D/3), such as, in the FIR it is mentioned that after receiving blow from chhuri injured Amar

Singh has fallen in Betwa river and in spot map (Ex.P/15) prepared by Investigating Officer Arun Kumar Dubey (PW-10), the scene of occurrence is

shown inside river adjacent to its bank but above mentioned examined both eye-witnesses have clearly deposed that injured Amar Singh has not fallen

in river. It would be significant to mention here that spot map was prepared on 25th July, 2004 whereas injured was taken to Vidisha Hospital on the

date of incident itself. Dhuma Bai (PW-9) has clearly deposed that at the time of incident appellant Toran Singh was pushing her husband towards

Betwa river. It is also clear from another outline diagram (Ex.P/1) prepared by Patwari Sardar Singh (PW-1) that agricultural land bearing survey No.

287 owned by Sachin Yadav (PW-6) and Inder Singh and others is adjacent to Betwa river. In such factual scenario it is clear that above mentioned

alleged contradictions do not appear important and substantial.

Considering all the above mentioned facts and circumstances regarding incident, the eye-witness account given by complainant Narayan Singh

(PW-8) and Dhuma Bai (PW-9), widow of deceased Amar Singh appears to be totally reliable. In their cross-examination suggestions were given by

defence counsel that after death of Amar Singh, Narayan Singh has kept Dhuma Bai as wife though both these witnesses have clearly denied relating

suggestions. It could not influence the veracity of evidence of these witnesses regarding incident, whereas it is clear from the evidence that widow of

Amar Singh was residing in some Sudi Wala Garden till date of recording of her evidence before the trial Court. Hence, her presence could not be

doubted. In these total facts and circumstances of the case, no importance could be given to non-examination of another eye-witness Prithviraj. The

presence of Narayan Singh (PW-8) is corroborated by his FIR (Ex.P/3) lodged at 18=00 hours, wherein the reason of late recording of FIR is clearly

mentioned and even in Ex.P/7 signed by Dr. S.C. Bansal (PW-3) it was clearly mentioned that dead body of Amar Singh was brought to Vidisha

Hospital at 5=45 pm on 24th July, 2004.

Relating to circumstantial evidence, during investigation, on the point of seizure of chhuri (knife) on the basis of disclosure statement of appellant

No.1-Santosh, the evidence of Investigating Officer Arun Kumar Dubey (PW-10) is totally supported by relating panch witnesses Sachin (PW-6) and

Govind (PW-5). Both these panch witnesses Govind (PW-5) and Sachin Yadav (PW-6) have proved their signatures on relating arrest memo

(Ex.P/12), memorandum (Ex.P/10) and seizure memo (Ex.P/11) and both these panch witnesses have also deposed that chhuri was having clotted

blood. Therefore, the factum of seizure of chhuri during investigation, even on next day from the date of incident provides additional reliability to the

evidence of relating eye-witnesses. Though seized chhuri (knife) was sent to FSL for examination, but it appears that relating FSL report could not be

produced before the trial Court till passing of its judgment. Therefore, the eye-witness account given by Narayan Singh (PW-8) and Dhuma Bai (PW-

9) appears to be trustworthy.

Much emphasis has been given by appellants' learned counsel on admission of Investigating Officer Arun Kumar Dubey (PW-10) regarding the

fact that at the time of arrest appellant Toran Singh was having injury on his body and he was sent for medical examination. It is not defence of the

appellants that they received injuries at the time of incident or they have acted in exercise of their right of private defence of their body. Therefore,

above mentioned admission of Investigating Officer appears to be meaningless.

Similarly it is clear from the perusal of record of trial Court that under examination of each appellant under Section 313 of the CrPC, none of them

has taken specific plea of alibi at the time of incident. Even it was not suggested to relating prosecution witnesses including Investigating Officer that

at the time of incident both appellants or any appellant was at any other place but Pooran Chand Singhai (PW-2) deposed that he is having a shop in

Galla Mandi Vidisha and Toran Singh was working at his shop for two years and on 24th July, 2004 appellant Toran was at his shop for total 24 hours

and Toran was sleeping at his shop and Santosh also came to his shop at about 12-1 pm and Santosh also remained at his shop till 6 pm and on next

day police came to his shop for arresting appellants, then he informed police that on previous day both appellants were working on his shop from 8 am

to 6 pm but in cross-examination he deposed that on his shop 10-12 other hammals (labours) also work and he keeps record regarding payment to

each hammal (labour), but on 24.7.2004 no work was done by any hammal, hence no payment was made by him and he admitted that whenever his

shop was having no business then labour people used to go to their houses and he did not know as to what they do after returning to their houses. It is

clear from the total deposition of Pooran Chand Singhai that his deposition is full of self contradictory facts. Though in arrest memo of appellant Toran

Singh (Ex.P/13) it is mentioned that at the time of arrest he was arrested from the shop of Pooran Seth situated at Galla Mandi, but looking to other

infirmities and unnaturalities appearing in the evidence of Pooran Chand Singhai (DW-2), his evidence appears to be totally unbelievable. The defence

evidence produced by appellant could not disturb the veracity of eye-witness account given by above mentioned prosecution eye-witnesses.

So far as the question of common intention of both the appellants is concerned, it is clear from the FIR (Ex.D/3) and evidence of both these

examined eye-witnesses that when Amar Singh was obstructing the appellants from fishing near Govind's agricultural land, then firstly Toran Singh in

drunken state started scuffling with Amar Singh. It is not mentioned or deposed by any witness that at that time Toran Singh was having any weapon.

It is clear from the evidence and FIR (Ex.D/3) that when Toran Singh was scuffling with Amar Singh and according to evidence of Dhuma Bai (PW-

9) Toran Singh was pushing her husband towards Betwa river then appellant Santosh took out a chhuri from his chadda (underwear) and inflicted fatal

injury to Amar Singh and after receiving injuries from chhuri (knife) he fell down. There is no iota of evidence that Toran Singh exhorted his younger

brother Santosh for killing Amar Singh. It is clear that both appellants suddenly came for fishing in Betwa river and unexpetedly Amar Singh started

obstructing them. It is clearly mentioned in the FIR and it is clear from the evidence of both eye-witnesses that at that time Tomar was in a drunken

state and chhuri was kept by Santosh in his chadda (underwear) in hidden manner. There is no evidence regarding knowledge of Toran Singh that his

younger brother is having a hidden chhuri. Toran did not instigate his younger brother Santosh to kill Amar Singh nor in any manner helped his younger

brother. Per Contra it is the prosecution's case and evidence that Toran in drunken condition started scuffling with Amar Singh, thereafter Santosh

took out his chhuri from his undergarment/chadda (underwear) and gave fatal blows to Amar Singh.

In such factual scenario, in the light of well settled legal position as there is no evidence about Toran Singh's causing any injury to deceased Amar

Singh or about Toran Singh's any weapon, though in FIR it is mentioned by complainant that after falling down of Amar Singh, Toran caused two

injuries to complainant by stick, but these facts are not deposed by complainant before trial Court. Hence, it is not established that from beginning

Toran was having any stick and admittedly Toran caused no injury to deceased. Therefore, in our considered opinion it was not established by

evidence available on record that murder of Amar Singh was committed in furtherance of common intention of both the appellants. Hence, in our

opinion, in these established facts and circumstances, it appears that the appellant No.2-Toran Singh though was not having any weapon but he was

pushing the deceased and as such, he was using criminal force upon the deceased.

So far as the question that the acts committed by appellant Santosh would be punishable under Section 302 or Section 304 Part-I of the IPC is

concerned, it is to be remembered that though in FIR single blow by chhuri caused by appellant Santosh is mentioned but it is clear from the medical

evidence available on record that actually two blows were inflicted by appellant Santosh to Amar Singh. It is clearly deposed by complainant Narayan

Singh (PW-8) in examination-in-chief (para 1) that after giving first blow by appellant Santosh over Amar Singh's chest, blood was oozing out and

Amar Singh started tumbling, thereafter he and others started running being perplexed. In such situation, it is quite natural that complainant and other

eye-witnesses may not be able to see the second blow given by appellant Santosh, but repeated two blows by same chhuri on chest and targeted and

damaged internal organs like heart and liver indicates that appellant No.1-Santosh's case does not fall in any of the exceptions provided under Section

300 of the IPC. Repeated blows on chest causing internal damage to heart and liver respectively establishes that appellant Santosh was having

intention of causing murder of deceased Amar Singh and as Amar Singh was empty handed, it is clear that appellant Santosh has taken undue

advantage and acted in a cruel or unusual manner.[Cases of Santosh Singh vs. State of Punjab (AIR 2009 SC 1923); Prabhu vs. State of UP (AIR

1991 SC 1069); and Kikar Singh vs. State of Rajasthan (AIR 1993 SC 2426) followed].

We are of the considered opinion that the trial Court has rightly appreciated and analyzed evidence in reference to the act of appellant No.1-

Santosh and did not commit any error in convicting him for causing murder of Amar Singh, whereas we are of the considered opinion that the trial

Court committed error in convicting appellant No.2-Toran Singh under charge of Section 302/34 of the IPC.

In view of the aforesaid discussion, appellant No.2-Toran Singh appears to be entitled for benefit of doubt in reference to framed charge under

Section 302/34 of the IPC, but for using criminal force upon the deceased he could have been convicted under Section 352 of the IPC. Therefore, his

appeal appears to be worthy of partial acceptance.

In the result, appeal filed by appellant No.1-Santosh is dismissed and his conviction and sentence as recorded by the trial Court are affirmed but

this appeal is partially allowed in reference to appellant No.2-Toran Singh and his conviction and sentence recorded by the trial Court under Section

302/34 of the IPC are set aside and Toran Singh is acquitted from the charge of Section 302/34 of the IPC but he is convicted under Section 352 of

IPC for using criminal force upon the deceased and sentenced to three months simple imprisonment.

Appellant No.1-Santosh is serving his jail sentence. He be intimated with the result of this appeal through relating Jail Superintendent. Appellant

No.2-Toran Singh has already suffered above mentioned altered jail sentence being awarded by this judgment and he is presently released on bail

after suspension of his jail sentence, therefore, he needs not to surrender before the trial Court and his bail bonds stand discharged. The trial Court's

order regarding disposal of seized property is affirmed.

A copy of the judgment along with the record be immediately sent back to the trial Court for information and compliance.