Sudhar and Another vs State of Tamil Nadu

As all the three appeals arise out of the same judgment dated 12-8-1997, made in S.C. No. 129/1996 on the file of learned Additional Sessions

Judge, Kanyakumari District at Nagercoil, they are heard together and disposed of by the following common judgment.

2.1 The appellant in Crl. A. No. 764/1997 is accused No. 4. He challenges his conviction u/s 302 read with Section 34, I.P.C. and the sentence

of imprisonment for life imposed on him.

2.2 The appellant in Crl, A. No. 839/1997 is accused No. 1. He challenges his conviction under Sections 302 and 324, I.P.C. and the sentence of

imprisonment for life imposed on him for the former offence and one year rigorous imprisonment for the latter offence.

2.3 In Crl. A. No. 694/1999, the State challenges the acquittal of accused Nos. 2 and 3 of the charges levelled against them, namely u/s 323 and

Section 302 read with Section 34, I.P.C.

For the purpose of convenience, in this judgment the accused will be referred as arrayed in the sessions case.

II- CHARGE

4.1 The charges against the accused are that:

(a) on 22-3-1995, at 11.00 a.m., A-2 and A-3 attacked one Sundar (P.W. 1) and caused simple injuries, which is punishable u/s 323, I.P.C;

(b) on the same day, at the same time, A-1 attacked the said Sundar (P.W. 1) with a knife and caused simple injury, which is punishable u/s 324,

I.P.C;

(c) on the same day, at the same time, A-1, with an intention to murder one Robi Vincent, attacked him and thereby caused his death, which act is

punishable u/s 302, I.P.C; and

(d) on the same day, at the same time, A-2 to A-4, with the common intention to murder the said Robi Vincent, accompanied A-1, attacked him

and caused his death, which is punishable u/s 302 read with Section 34, I.P.C.

III- CASE OF THE PROSECUTION

5.1 The case of the prosecution, as discerned from the evidence of prosecution witnesses, is as follows.

5.2 P.W. 1, Sundar, is the brother of the deceased-Robi Vincent. A-land A-4 are the sons of A-2 and A-3 respectively.

5.3 On 22-3-1995. at about 11.00 a.m., P.W. 1 and his brother Robi Vincent (deceased) went to their coconut grove. They saw A-1 to A-4

destroying the fence put up on the northern side of their land. P.W. 1 questioned the accused about their action. All the accused justified their

action. There arose a wordy altercation between P.W. 1 and the accused. A-l, with the knife in his hand, cut twice on the forehead of P.W. 1. A-2

beat on the right knee of P.W. 1 with a casuarina stick. A-3 also beat on the back and left shoulder of P.W. 1 with a stick. P.W. 1 raised alarm.

When Robi Vincent (deceased] intervened, A-l cut on the head of the deceased with the knife in his hand and A-4 cut on the left hand of the

deceased with an aruval. P.W. 2 Sundar and P.W. 3 Vincent also witnessed the occurrence and they raised hue and cry. Immediately all the

accused ran away from the scene with the weapons. P.W. 2 brought a car, in which all went to Thuckalay Police Station.

5.4 P.W. 11; Head Constable, was in the police station. P.W. 1 and the injured Robi Vincent (deceased) appeared before him at 11.45 a.m. As

Robi Vincent (deceased) was not in speaking condition, P.W. 1 narrated the incident. P.W. 11 reduced into writing the statement given by P.W.

1, read it over to him and then obtained his signature in it, which is Ex. P-1. Based on Ex. P-1 complaint, P.W. 11 registered a case in Crime No.

323/1995 under Sections 324, 323 and 307, I.P.C. and prepared Ex. P-12 printed FIR. He sent the injured P.W. 1 and Robi Vincent (deceased)

to the hospital with a police medical memo. He sent the First Information Report to the Inspector of Police for investigation.

5.5 On 22-3-1995 at 12.00 noon, Dr. Sivarajan examined the deceased and gave treatment. He referred the deceased to Government Head

Quarters Hospital, Nagercoil, for better treatment. Ex, P-20 is the Accident Register given by him to the deceased. At 12.10 p.m., he examined

P.W. 1 and admitting him as an inpatient. Ex. P-19 is the Accident Register given by him to P.W. 1. Dr. Sivarajan was not examined, as he was ill

and P.W. 13, who knows the handwriting and the signature of Dr. Sivarajan, was examined to speak about the treatment given by Dr. Sivarajan to

P.W. 1 and the deceased.

5.6 On 22-3-1995 at 1.20 p.m. P.W. 6, Dr. James Lessely, admitted the deceased as an inpatient in the Government Head Quarters Hospital at

Nagercoil. Ex. P-4 is the Accident Register given by him to the deceased.

5.7 P.W. 7, Dr. Satheesh Kumar, admitted the deceased as an inpatient in the hospital in which he was working, for further treatment and the

doctor gave treatment to him.

5.8 P.W. 8 Is the Doctor who gave treatment to the deceased, He took scan on the deceased, Ex. P-5 is the scan report. M.O. 4 aeries is the X-

ray taken for the deceased. In spite of the treatment given, Robi Vincent died at 7.30 p.m. on 22-3-1995.

5.9 In the meantime, P.W. 12, Inspector of Police, took up the investigation in the case. He enquired P.W. 1 at 12.50 p.m. on 22-3-1995 in the

hospital and recorded his statement. He seized M.O. 1 Lungi produced by P.W. 1 in the presence of P.W. 5 and another under Ex. P-3 mahazar.

At 1.15 p.m., he visited the occurrence place, prepared Ex. P-2 in the presence of P.W. 4 and another and also drew Ex. P-13, rough sketch. He

also examined witnesses and recorded their statements. On receipt of death intimation, Ex. P-14, at 10.00 p.m., he altered the case into one under

Sections 323, 324, 302 and 307, I.P.C. and prepared Ex. P-15 altered FIR and despatched the same to the Court through P.W. 14 Constable.

He went to Putheri Hospital, enquired P.Ws. 2 and 3 and recorded their statements''. On 23-3-1995 between 6.30 a.m. and 9.30 p.m., he

conducted inquest over the dead body and prepared Ex. P-16 inquest report. During inquest, he enquired witnesses and recorded their

statements. He sent the body for post-mortem with Ex. P6 requisition.

5.10 P.W. 9 is the Doctor who conducted autopsy over the body of the deceased at 12.40 p.m. on 23-3-1995. During postmortem, he found

two external injuries, as noted in Ex. P-7 post-mortem certificate issued by him and they are as follows:

One lacerated wound left side of the occipital and left parietal area of scalp oblique 6cm. � 1/2 cm. � bone depth and another incised wound

left upper arm lower aspect, anteriorly, transverse 1cm. � 1/2 cm. � 3 cm. and on dissection of injury No. 1, clotted blood present all over the

scalp and fractures present in the frontal temporal, left parietal and left side of the occipital bones.

The doctor was of the opinion that the deceased would have died of shock and haemorrhage due to the head injury.

5.11 P.W. 12, Inspector of Police, on 24-3-1995 enquired Dr. Sivarajan, P.Ws. 6 to 8 and others and recorded their statements. On 24-3-1995

at 3.00 p.m., he arrested A-2 and sent him for Judicial remand. On 27-3-1995 he gave a requisition to the Court for sending the material objects,

M.O. 1 Lungi (P.W. 1), M.O. 5 Lungi and M.O. 2 Jatti (worn by the deceased) for chemical examination. He took accused No. 2 into police

custody on the orders of the Court, enquired him and based on the admissible portion of his confession statement, Ex. P-17, M.O. 3 stick was

recovered under Ex. P-18 mahazar in the presence of witnesses.

5.12 P.W. 16 is the Village Administrative Officer of Karulakkodu village. He gave Ex. P-21 certificate stating that the lands in Survey Nos.

142/14 and 142/15 belonged to one Gnanasigamani.

5.13 P.W. 17, Inspector of Police, continued and completed the investigation. After following the legal formalities, he filed the final report against

the accused under Sections 324, 323, 302 and 302 read with Section 34, I.P.C. on 17-1-1996

5.14 To prove the charges framed against the accused, the prosecution examined 17 witnesses as P.Ws. 1 to 17, marked Exs. P-1 to P-24 as

well as M.Os. 1 to 5, as referred to earlier.

When the accused were questioned u/s 313 of the Code of Criminal Procedure about the incriminating circumstances found in the evidence of

prosecution witnesses, they denied the complicity in the crime. No witness was examined on the side of the accused. However, Ex. D-1. case

sheet pertaining to the deceased-Robi Vincent, given by Putheri Hospital, was marked.

V-JUDGMENT OF THE TRIAL COURT

The trial Court, on consideration of the oral and documentary evidence produced by both sides, convicted and sentenced A-1 and A-4 and

acquitted A-2 and A-3 as referred to earlier, Hence the above appeals by the convicted accused and by the State.

VI-CONTENTIONS ON BEHALF OF THE ACCUSED

8.1 Learned Counsel appearing for the accused contend that the accused are entitled to the benefit of Section 97, I.P.C. as their action is to

defend their life. Elaborating the said contention, the learned Counsel submitted that the aggressor in this case is the prosecution party, as evident

from Exs. P-22 (complaint given by the wife of accused No. 3), P-23 (FIR registered based on Ex. P-22) and P-24 (final report in the said case)

marked in this case and further, it is clear from the rough sketch, Ex. P-13 and the evidence of the Investigating Officer, P.W. 12 that the

occurrence had taken place in the land where the accused were working and even as per the prosecution case, when the accused persons were

cutting and removing the natural bushes standing in the fence of the prosecution party, P.W. 1 questioned the accused and there was a wordy

altercation between the prosecution party and the accused party, during which the accused party attacked the deceased and P.W. 1. Learned

Counsel further contend that P.W. 1 is the person who first attacked A-1 and the wife of A-3, which is evident from the documents marked as

Exs. P-22 and P-23 and only in order to protect themselves, they exercised their right of private defence and, therefore, they are entitled to the

benefit of Section 97 of I.P.C.

8.2 Alternatively, the learned Counsel for the appellants contend that the occurrence had happened without premeditation, in a heat of passion

upon a sudden quarrel in a sudden fight and, therefore, the appellants are entitled to the benefit of Exception 4 to Section 3, I.P.C. and they can be

convicted only u/s 304, I.P.C. and not u/s 302, I.P.C.

8.3 In the appeal against acquittal of A-2 and A-3, the learned Counsel for the accused contends that there is no evidence at all to accept the case

of the prosecution that A-2 and A-3 shared the common intention of the other accused and further, there is no convincing evidence to hold that

they are responsible for the injuries sustained by P.W. 1. Further, there is no explanation for the injuries sustained by A-1 and the wife A-3 and,

therefore, the appeal is liable to be dismissed.

VII - CONTENTIONS ON BEHALF OF THE PROSECUTION

9.1 Per contra, Mr. K. Chellapandian, learned Additional Public Prosecutor, contends that the question of application of Section 97, I.P.C. does

not arise at all in this case, as it is the accused, who are the aggressors, since when they cut and removed the natural bushes standing in the fence

and put them inside the land of the deceased, the same was questioned by P.W. 1 and thereafter, the accused attacked P.W. 1 and the deceased

and this fact becomes clear from the evidence of P.Ws. 1 to 3, who are eyewitnesses to (he occurrence and also from the evidence of P.W. 12,

Investigating Officer, Ex. P 13, rough sketch and Ex. P-l the complaint given by P.W. 1.

9.2. Regarding the alternative argument advanced by the learned Counsel for the accused, learned Additional Public Prosecutor contends that

there is no scope for bringing the act of the accused under Exception 4 to Section 300, I.P.C., as it is clear from the evidence of prosecution

witnesses and the documentary evidence produced that the accused had every knowledge and intention to cause the death of the deceased.

9.3. Assailing the acquittal of A-2 and A-3 from the charges, learned Additional Public Prosecutor contend that even though no specific overt act

has been alleged against these accused in attacking the deceased, there are materials to infer that they have shared the common intention of A-1

and A-3 in murdering the deceased and further, there is specific overt act against these accused in the very first document FIR for the attack made

on P.W. 1 and the prosecution witnesses also stated in their evidence, which corroborates the medical evidence of P.W. 13 and Ex. P-l9 Accident

Register issued to P.W. 1 and, therefore, when there are overwhelming evidence adduced by the prosecution, the acquittal of these accused is bad

and hence, they are liable to be convicted under the charges framed against them.

VIII - CONSIDERATION AND FINDING

In the context of the arguments advanced by the learned Counsel on either side, we have gone through the entire evidence and materials on

record with great care and caution.

It is the case of the prosecution that the deceased died due to the injuries sustained by him during the occurrence. The said fact is established

through the evidence of the doctors, who initially examined the deceased and the evidence of the doctor, who conducted post-mortem (P.W. 9)

coupled with the post-mortem certificate, Ex. P-7, issued by him. It is the opinion of the postmortem doctor, P.W. 9, that the deceased would

have died of shock and haemorrhage due to head injury. From the above medical evidence, we hold that the deceased died due to the injuries

sustained, which are homicidal in nature.

From the perusal of the evidence on record, we have every reason to conclude that the appellants are not entitled to the benefit u/s 97, I.P.C.

The reasons are as below. It is the specific case of the prosecution that the accused were cutting and removing the natural bushes standing in the

fence of the deceased and putting them in the land of the deceased and when it was questioned by P.W. 1, A-1 cut on the head of the deceased

and A-4 cut on the left hand of the deceased, which attack later proved to be fatal. In support of their case, the prosecution has examined P.Ws. 1

to 3 as eyewitnesses, among them P.W. 1 is an injured witness. We perused their evidence. It is their consistent statement that it is the accused,

who cut and removed the natural bushes standing in the fence of the deceased and put those wastages in the land of the deceased and when it was

questioned by P.W. 1, the occurrence took place. We also perused the observation mahazar, Ex. P.2 and the rough sketch, Ex. P. 13, drawn by

the Investigating Officer. A perusal of both the exhibits makes it clear that the bushes cut and removed were put in the land of the deceased.

Therefore, the aggressors are not the deceased party, but the accused party. Further, the occurrence had not taken place in the land in which the

accused were working, but only in the land of the deceased. Therefore, the contention of the learned Counsel for the appellants that they are

entitled to the benefit of Section 97, I.P.C. does not carry any merit and it is liable to be rejected.

Coming to the contention of the learned Counsel for the appellants that the occurrence had happened without premeditation, in a heat of

passion, upon a sudden quarrel, in a sudden fight and, therefore, the appellants are entitled to the benefit of Exception 4 to Section 300 I.P.C, we

went through the evidence of eye-witnesses to the occurrence. It is the evidence of P.Ws. 1 to 3, in one voice, that the accused were damaging the

fence in the land of the deceased and when it was questioned by P.W. 1, the accused justified their action and, therefore, there arose a wordy

altercation between P.W. 1 and the accused and thereafter, A-1 to A3 attacked P.W. 1. It is their further evidence that when the deceased

questioned the accused as to why they beat his brother P.W. 1, A-1 cut. on the head of the deceased and A-4 cut on the left hand of the

deceased. Thus, it is clear that there was no premeditation. In a heat of a passion and upon a sudden quarrel, A-1 and A-4 attacked the deceased

with the weapon they were having in connection with the work in which they were engaged and they had not acted in a cruel manner. Further, from

the above circumstances, it cannot be inferred that A-4 had shared the common intention of A-1. Therefore, we see some force in the contention

of the learned Counsel for the appellants that the act of A-1 and A-4 would fall under Exception 4 to Section 300, I.P.C., and therefore,

punishable u/s 304, I.P.C. and not u/s 302, I.P.C.

14.1. Now let us analyse the evidence with regard to the question as to whether the offence committed by A-1 is punishable u/s 304, Part I, I.P.C.

or 304, Part II, I.P.C. It Is the evidence of post-mortem Doctor (P.W. 9) that he found one lacerated wound left side of the occipital and left

parital area of scalp oblique 6 cm. � 1/2 cm. bone depth and another incised wound left upper arm lower aspect, anteriorly, transverse 1 cm.

� 1/2 cm. � 3 cm. and on dissection of injury No. 1, clotted blood present all over the scalp and fractures present in the frontal temporal, left

parietal and left side of the occipital bones. It is his opinion that the deceased would have died of shock and haemorrhage due to head injury. The

evidence of P.Ws. 1 to 3, who are eye-witnesses to the occurrence, is that A-l attacked the deceased by saying ""get lost with this."" From the

evidence of ocular testimony and the medical evidence, it becomes clear that A-1 had attacked the deceased with an intention of causing his death.

Section 304, Part I, I.P.C. applies to a case where the act, by which death is caused, is done with the intention of causing death or causing such

bodily injury as is likely to cause death. Merely because A-1 assaulted the deceased first, as spoken to by P.Ws. 1 to 3, it cannot be said that he is

not entitled to the benefit of Exception 4 to Section 300, I.P.C, in view of the explanation to the said Exception 4, which reads as follows:

Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.

14.2. A-1 is, therefore, liable to be convicted u/s 304, Part I, I.P.C, for which, we sentence him to undergo rigorous imprisonment for seven years

and to pay a fine of Rs. 1,000/- (Rupees one thousand only) and a compensation of Rs. 9,000/- (Rupees nine thousand only), which shall be paid

to P.W. 1, the brother of the deceased.

Coming to the conviction of A-1 u/s 324, I.P.C. for attacking P.W. 1, it is the clear evidence of P.Ws. 1 to 3 that A-1 attacked the deceased

on his forehead twice with the. knife in his hand. Dr. Sivarajan is the Doctor who treated P.W. 1. As Dr. Sivarajan was ill, P.W. 13 has been

examined as witness to speak about the treatment given to P.W. 1. According to him, Dr. Sivarajan found three injuries on P.W. 1 and gave Ex.

P-19 Accident Register. On going through the evidence of P.Ws. 1 to 3 and the medical evidence, injury No. 2, as noted in Ex. P-19 Accident

Register and the second part of Injury No. 1 are attributable to A-1, as spoken to by P.Ws. 1 to 3. Therefore, the conviction of A-1 u/s 324,

I.P.C. by the trial Court is well founded and we see no reason to interfere with the same. He is directed to undergo the sentence of one year

imposed on him u/s 323 concurrently with the sentence now imposed on him u/s 304, Part I, I.P.C.

The next question to be answered is as to what offence A-4 is to be convicted. We have already held that there was no premeditation and the

prosecution failed to establish any common intention attracting Section 34 of I.P.C. From the injuries on the deceased, as found by the Doctor

(P.W. 9), it is crystal clear that injury No. 1, as noted by the Doctor in the post-mortem certificate (Ex. P-7) was found to be sufficient to cause

death in the ordinary course of nature and the said injury is attributable to the assault made by A-1 on the left parietal region of scalp as per the

evidence of ocular witnesses P.Ws. 1 to 3. The opinion of the doctor is that the deceased would have died of head injury. The other injury found

on the deceased is injury No. 2, which is an incised wound left upper arm lower aspect, anteriorly, transverse 1cm. � 1/2 cm. � 3cm.

Therefore, from the above referred evidence of eyewitnesses and the medical evidence, it is not possible for us to hold that A-4 can be convicted

u/s 302 with the aid of Section 34, I.P.C. However, taking into account the nature of injury and the weapon used, we convict him u/s 326, I.P.C.

and sentence him to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1,000/- and a compensation of Rs. 4,000/-, which

shall be paid to P.W. 1, the brother of the deceased.

17.1. What remains to be decided is the appeal against the acquittal of A-2 and A-3, namely, whether the acquittal of A-2 and A3 by the trial

Court from the charges under Sections 323 and 302 read with Section 34, I.P.C. is just and proper.

17.2. It is the trite law that there Is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based.

Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by

acquittal. The golden thread which runs through the web of administration of Justice in criminal cases is that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused

should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which

may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is

cast upon the appellate Court to reappreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether

any of the accused really committed any offence or not. The principle to be followed by the appellate Court considering the appeal against the

judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly

unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference, vide

Sachchey Lal Tiwari Vs. State of Uttar Pradesh, .

17.3. To answer to this issue, we went through the judgment of the trial Court as well as the evidence on record. From a perusal of the evidence of

P.Ws. 1 to 3, the ocular witnesses and the medical evidence, we see that no overt act is attributed against A-2 and A-3 in attacking the deceased.

Further, as discussed earlier, the occurrence had taken place in the spur of the moment, without premeditation, upon a sudden quarrel and,

therefore, there cannot be any common intention among the accused in murdering the deceased, as alleged by the prosecution. Therefore, the

acquittal of A-2 and A3 by the trial Court u/s 302 read with Section 34, I.P.C. is just and proper and no interference is called for on this aspect.

17.4. But, on the perusal of ocular testimony and the medical evidence, we have no hesitation at all to come to the conclusion that the acquittal of

A-2 and A-3 by the trial Court from the charge u/s 323, I.P.C. is bad, as there are overwhelming evidence on record to show that both A-2 and

A-3 had attacked P.W. 1 with a stick and caused injuries on him. It is the evidence of eyewitnesses to the occurrence, namely P.Ws. 1 to 3, that

A-2 beat P.W. 1 with a stick on his right knee and A-3 beat on his back and left shoulder with a stick. It is the evidence of P.W. 13 Doctor, that

P.W, 1 was treated by Dr. Sivarajan and he found as many as three injuries as noted in Ex. P-19 Accident Register issued to P.W. 1 by Dr.

Sivarajan, which are as follows:

(1) Abrasion 1 � 1cm. right knee. Lacerated injury 3 � 2 � 1cm. back of frontal region with bleeding;

(2) Lacerated injury 1 � 1/2 � 1/2 cm. vertext of scalp and

(3)Contusion 4x3 left upper arm.

Among the above three injuries, injury No. 3 and first part of injury No. 1 are attributable to A-2 and A-3. Therefore, we set aside the acquittal of

A-2 and A-3 from the charge u/s 323, I.P.C. and instead, we convict them u/s 324, I.P.C.

17.5. Coming to the sentence to be imposed on A-2 and A-3 u/s 324, I.P.C, it is represented that they were already in imprisonment for a

sufficient period and A-2 and A-3 are fathers of A-1 and A-4 respectively. It is the contention of the learned Counsel for the accused that in the

occurrence, A-1 and the wife of A-3 also sustained injuries, as evident from Exs. P-22 to P-24, but there is no explanation for the same from the

prosecution. Taking into consideration all the circumstances, we are of view that the sentence already undergone by them will be sufficient and

accordingly, we do so.

IX - DECISION

In the result, the appeals are disposed of as under:

(i) Crl. A. No. 839/1997 : The conviction and sentence imposed on the appellant/A-1 u/s 302, I.P.C. are set aside and instead, he is convicted u/s

304, Part I, I.P.C. and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs. 1,000/- (Rupees one thousand only) and

a compensation of Rs. 9000/- (Rupees nine thousand only), which shall he paid to P.W. 1, the brother of the deceased. The said fine and

compensation amount shall be paid within eight weeks from the date of receipt of a copy of this order, failing which he shall undergo one year

rigorous imprisonment as default sentence. The sentence already undergone by him shall be given set off. The appeal is allowed to the extent

indicated above.

(ii) Crl. A. No. 764/1997 : The conviction and sentence imposed on the appellant/A-4 u/s 302 read with Section 34, I.P.C. are set aside and

instead he is convicted u/s 326, I.P.C. and sentenced to undergo three years rigorous imprisonment and to pay a fine of Rs. 1,000/- (Rupees one

thousand only) and a compensation of Rs. 4,000/ - (Rupees four thousand only), which shall be paid to P.W. 1, the brother of the deceased. The

said fine and compensation amount shall be paid within eight weeks from the date of receipt of a copy of this order, failing which he shall undergo

six months rigorous imprisonment as default sentence. The sentence already undergone by him shall be given set off. The appeal is allowed to the

extent indtcated above.

(iii) Crl. A. No. 694/1999 : The judgment of the trial Court in respect of acquitting A-2 and A-3 from the charge of attacking and causing injuries

on P.W. 1 is set aside and they are convicted u/s 324, I.P.C. and sentenced to imprisonment for the period already undergone by them. Their

acquittal in respect of the offence u/s 302 read with Section 34, I.P.C, is confirmed. The appeal is allowed to the extent indicated above.

(iv) The bail bonds executed by A-1 and A-4 shall stand cancelled. The learned Sessions Judge is directed to take steps to secure the presence of

A-1 and A-4 and commit them to prison to undergo the remaining period of sentence.