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2002 DIGILAW 1430 (PAT)

Subodh Sharma v. State Of Bihar

2002-12-17

RAJENDRA PRASAD, S.N.JHA

body2002
Judgment Rajendra Prasad, J. 1. As both these appeals arose out of the same judgment and order, they were heard together and are being disposed of by this common judgment. 2. Both these appeals are directed against the judgment and order dated 2.5.1997 passed in Sessions Trial no. 468 of 1993 by 2nd Additional Sessions Judge, Bhagalpur, whereby and whereunder the learned Additional Sessions Judge found charges under sections 302/34 and 386 IPC proved against appellant Badri Tanti and convicted and sentenced him to undergo rigorous imprisonment for life under section 302/34 IPC but the learned Additional Sessions Judge did not pass separate sentence under section 386 IPC. Further the learned Additional Sessions Judge found charges under sections 302 and 386 IPC and section 27 of the Arms Act proved against appellant Subodh Sharma and convicted and sentenced him to undergo rigorous imprisonment for life u/s 302 IPC and rigorous imprisonment for three months u/s 27 of the Arms Act, but the learned Additional Sessions Judge did not pass separate sentence u/s 386 IPC and ordered that both the sentences shall run concurrently. 3. As disclosed in the written report (Ext. 1), the prosecution story relates to an occurrence which took place on 11.9.1992 at 3.45 P.M., partly inside the shop named "Bihar Tubewell Industry" of the informant (P.W. 2) situated at Patal Babu Road, at a distance of 1/2 Kms East-North of police station and partly at a distance of 24/30 feet towards Ajanta Cinema, outside the above shop of the informant. It goes that while the informant (P.W.2) along with his sales men Sunii Kumar (deceased) and Diwakar Kumar Das (P.W.1) was present in the above named shop one unknown boy came with a letter and inquired about the owner (Malik) of the shop. Sunil Kumar (deceased) indicated that the owner (Malik) was standing behind. Thereafter the said unknown boy handing over a letter to the informant (P.W.2) asked him to be ready with articles (Saman). When the informant asked whose was this letter, the unknown boy telling the informant to read the letter started going out of the shop. Sunil Kumar (deceased) indicated that the owner (Malik) was standing behind. Thereafter the said unknown boy handing over a letter to the informant (P.W.2) asked him to be ready with articles (Saman). When the informant asked whose was this letter, the unknown boy telling the informant to read the letter started going out of the shop. Thereafter, the informant (P.W.2) opened the letter and read in the very first line of the letter that there was threat to kill his son Kamal Kumar and also that if the informant wanted to save the life of his son, to arrange Rs.1,50,000/- which will be taken on any day within four days. The letter also threatenrd him (informant) not to inform the police otherwise he (informant) would be informe on telephone about the death of his son. At the foot of the letter words "Tumhara Bap" were written. It further goes that after reading the letter informant asked Sunil Kumar (deceased) to catch that boy. At a distance of 24-30 feet from the shop towrds Ajanta Cinema Sunil (deceased) caught hold that unknown boy. It is further stated that just by the side of that unknown boy his another companion, also unknown, was standing who pulled out a country made pistol from his waist and fired near the ear of Sunil (deceased) and fled away towards Ajanta Cinema. Thereafter on hulla raised by the informant many persons gathered but unknown boy succeeded in fleeing away. It is further stated that unknown boy; who was caught there disclosed his name to be Badri Tanti, son of Indra Narain Tanti, resident of village Aliganj Ambabagh, P.S. Mozahirpur, District Bhagalpur in presence of persons gathered there and confessing his guilt also disclosed the name of another unknown boy as Subodh Sharma son of Munilal Sharma village Aliganj, Jangli Road and further disclosed that it was Subodh Sharma who had given the letter and had fled away after firing at the deceased. 4. On the basis of written report (Ext.1), filed by the informant (P.W.2), Kotwali P.S.Case No. 579/92, dated 11.5.1992 under sections 307, 385, 109 and 114 IPC and Section 27 of the Arms Act was registered and the investigation was given to Assistant Sub-Inspector-Ram Bilash Ram (P.W. 8). 5. 4. On the basis of written report (Ext.1), filed by the informant (P.W.2), Kotwali P.S.Case No. 579/92, dated 11.5.1992 under sections 307, 385, 109 and 114 IPC and Section 27 of the Arms Act was registered and the investigation was given to Assistant Sub-Inspector-Ram Bilash Ram (P.W. 8). 5. A.S.I. Ram Bilash Ram (P.W. 8) thereafter took up the investigation of the case, collected materials in course of investigation and after completion of investigation submitted chargesheet against accused Badri Tanti and Subodh Sharma and one Binod Sharma on 9.12.1992 before the Chief Judicial Magistrate under sections 386, 109, 114, 302 read with section 34 IPC and section 27, of the Arms Act.The learned Chief Judicial Magistrate after perusing the case diary and taking into consideration the materials collected in course of investigation took cog nizance of the offences against the above named accused persons vide his order dated 8.1.1993 and transferred the case to Judicial Magistrate, 1st Class, for commitment. Thereafter Sri Sailendra Singh, Judicial Magistrate, 1st Class, vide order dated 20.8.1993 committed the above named accused to the court of Sessions for trial. 6. The learned Sessions Judge vide order dated 24.7.1993 transferred the case to the court of Sri K. M. Srivastava, Additional Sessions Judge, for trial and disposal. 7. The learned 2nd Additional Sessions Judge, Bhagalpur, vide order dated 2.12.1993 framed charges under sections 302/34 and 386 IPC against both the appellants Badri Tanti and Subodh Sharma. Separate charges under section 302 and under section 27 of the Arms Act were also framed against appellant Subodh Sharma. Against Binod Sharma charges under sections 302/109 and 120B IPC were framed. Thereafter the trial of the case was taken up. 8. As it appears from the judgment and order dated 2.5.1997 the learned 2nd Additional Sessions Judge, Bhagalpur found charges under sections 302/34 IPC and 386 proved and established against appellant Badri Tanti and charges under sections 302 and 386 IPC and Section 27 of the Arms Act proved and established against appellant Subodh Sharma and accordingly they were held guilty, convicted and sentenced. The learned Additional Sessions Judge acquitted one accused Binod Sharma as the charges levelled against him were not proved and established. The learned Additional Sessions Judge sentenced appellant Badri Tanti to undergo rigorous imprisonment for life under section 302/34 IPC but did not pass separate sentence u/s 386 IPC. The learned Additional Sessions Judge acquitted one accused Binod Sharma as the charges levelled against him were not proved and established. The learned Additional Sessions Judge sentenced appellant Badri Tanti to undergo rigorous imprisonment for life under section 302/34 IPC but did not pass separate sentence u/s 386 IPC. Appellant Subodh Sharma was sentenced to undergo rigorous imprisonment for life u/s 302 IPC and rigorous imprisonment for three months u/s 27 of the Arms Act but no separate sentence u/s 386 IPC was passed against him. Both the sentences were ordered to run concurrently. 9. The prosecution examined altogether 10 witnesses. Defence did not examine any witness. Defence is denial of charges & plea of innocence. 10. P.W. 1 , Diwakar Kumar Das is a witness who, as per written report (exhibit 1) was a salesman of informant and on the alleged date and time of occurrence, was present in the shop of the informant. Though this witness appears to have given eye witness accounts of the occurrence as to the date and time of occurrence, the manner of occurrence inside shop of the informant yet this witness stated that his owner (Malik) and Sunil (deceased) had gone out to catch unknown boy and he remained in the shop. This witness also stated that he heard that Sunil was shot at but denied that he had seen any one who was caught. At this stage the prosecution declared this witness hostile and cross examined this witness. This witness has also been cross examined by the defence. As now law is settled that the statement of hostile witness cannot be discarded as a whole, the reliability of the statements of this witness shall be considered at the appropriate stage. 11. P.W.2 Shyam Sunder Chitlania is the informant himself. He has stated that the occurrence is of 11th September, 1992 evening at 3.30 P.M. He was sitting in his shop. The name of his shop is "Bihar Tubewell Industry" situated at Patal Babu Road. He is the owner of that shop. On the date of occurrence Sunil Kumar (deceased) and Diwakar Kumar Das (P.W, 1) were serving in his shop. He has further stated that in his shop one person came, who was a boy. He (the boy) inquired from Sunii Kumar (deceased) where was his owner. He is the owner of that shop. On the date of occurrence Sunil Kumar (deceased) and Diwakar Kumar Das (P.W, 1) were serving in his shop. He has further stated that in his shop one person came, who was a boy. He (the boy) inquired from Sunii Kumar (deceased) where was his owner. This witness was standing behind him and Sunil Kumar told that I was standing behind him. This witness has further stated that that boy handed over a letter and told him to keep articles (Saman) ready. This witness produced the letter before the court and stated that this is the letter which was handed over to him by that boy. This letter is marked X for identification. This witness has further stated that he asked that boy about whose was this letter. The boy asked this witness to read the letter himself. At that time no customer was present in the shop. This witness immediately opened the letter and found that in the very first line of that letter there was threat to kill his son. When the boy came out of the shop this witness asked Sunil (deceased) to catch that toy and this witness also followed him. Sunil (deceased) caught that boy on the road leading to Ajanta Cinema and when this witness reached there another companion of the boy shot at Sunil (deceased) which hit his temple. This witness raised hulla and persons gathered there. He has further stated that that boy was caught there but another companion of that boy who had shot at Sunil (deceased) fled away, He has further stated that the boy who was caught disclosed his name as Badri Tanti and disclosed the name of his companion who had shot at Sunil (deceased) Subodh Sharma. This witness has further proved written report, which is marked as Ext.1 He has further stated that Sunil died next day. This witness has further proved inquest report, which was prepared by Daroga in his presence. He has proved his signature on the inquest report, which was marked as Ext. 2. He further identified Badri Tanti in the court and stated that this very accused had brought the letter. This witness has also been cross-examined at length and it appears that this witness has supported and corroborated the statements made in his examination-in-chief. 12. He has proved his signature on the inquest report, which was marked as Ext. 2. He further identified Badri Tanti in the court and stated that this very accused had brought the letter. This witness has also been cross-examined at length and it appears that this witness has supported and corroborated the statements made in his examination-in-chief. 12. P.W.3 Shiv Sankar Jha, P.W.4 Sunder Prasad Yadav and P.W.5 Yashpal Singh appear to have been tendered by the prosecution for cross examination. There appears nothing in their statements so as to be considered except that these witnesses have also been produced by the prosecution for their cross examination. 13. P.W. 6 Pratap Chandra Bharti and P.W.7 Satya Narain Choudhary have turned hostile and there appears nothing in their statements so as to be considered. 14. P.W. 8 Ram Bilash Ram is the Investigating Officer, who had investigated the case and submitted chargesheet. He stated that on 11.9.92 he was posted at Kotwali police station. On that day at 4 P.M. (evening) he was on duty in the cloth shop of Ram Nand Surekha situated at Chikitsalaya Road. This witness got information from patrolling party that some criminals had shot at one person at Patal Babu Road. On getting this information this witness along with armed partolling party went to the place of occurrence for verification. He went to the shop of "Bihar Tubewell Industry". The owner of the shop Shyam Sunder Chitlania gave a written report about the occurrence to this witness. This witness was also handed over accused Badri Tanti and one letter. This witness also prepared seizure list. He has further stated that deceased Sunil was sent to Medical Hospital, Bhagalpur, by Vehicle (Lorry). This witness came to thana and registered the case and investigation the case was handed over to this witness This witness has further stated that thereafter he came to the place of occurrence. He has given description of the place of occurrence. The place of occurrence, as described by this witness, is the shop of the informant named "Bihar Tubewell Industry", situated towards at a distance of 100 yards north of Diksan Road at Patal Babu Road. 25-30 feet north of this shop is the electrical articles shop of one Satya Narain Choudhary. In front of this shop accused Subodh Sharma had shot at Sunil (deceased) and fled away. Here road is north-south. 25-30 feet north of this shop is the electrical articles shop of one Satya Narain Choudhary. In front of this shop accused Subodh Sharma had shot at Sunil (deceased) and fled away. Here road is north-south. Accused Badri Tanti was caught in front of the shop of Satya Narain Choudhary. This witness has further stated that stain of blood was found at the place of occurrence. Earth and blood were not in a position to be collected as many people had walked there. He has further stated that thereafter he took the statement of the informant and also took the statement of Satya Narain Choudhary and other witnesses. On that very day at 20.25 hours he went to hospital and found Sunil (deceased) senseless and so he could not take the statement of Sunil. On 12.9.92 he took the statement of Badri Tanti who confessed his guilt. On 14.12.1992 Shyam Sunder Chitlania (P.W.2) told this witness that on 12.9.1992 Sunil died. Thereafter a petition was filed for adding Section 302 IPC. This witness has further proved inquest report which is marked as Ext. 3. The investigation was supervised by Dy. S. P. Mohan under order of Superintendent of Police. He obtained post mortem report. He further proved post mortem report, which is marked as Ext. 4. This witness has also been cross examined by the defence at length but this witness remained consistent in his cross examination. 15. P.W. 9 Dr. N. N. Bhagat is the doctor, who had performed post mortem on the dead body of Sunil (deceased). He has stated that he performed post mortem on 12.9.1992 at 3.30 P.M. on the dead body of Sunil Kumar (deceased) son of Suresh Prasad Sah of Mirjan Warsaliganj, P.S.Mojahidpur. District-Bhagalpur aged about 25 years, Hindu male. The body was identified by Homeguard no.11705 Shankar Prasad Yadav and noted the following antemortern injuries :- (i) stitched wound on left side of neck 1 1/2" in length. (ii) stiched wound on right side of neck 1 1/2" below and behind right ears. (iii) Bruise below left ear 1 1/4" 1/2" on opening stiches both wounds found to be communicating. Muscles and blood vessels were lacerated. (iv) Cervical vertebra fractured, spinal cord contused blood in the surrounding tissues. This witness has opined that injuries were anfemorfem injuries in nature. Nature and cause of injury may kindly be asked from the treating surgeon. (iii) Bruise below left ear 1 1/4" 1/2" on opening stiches both wounds found to be communicating. Muscles and blood vessels were lacerated. (iv) Cervical vertebra fractured, spinal cord contused blood in the surrounding tissues. This witness has opined that injuries were anfemorfem injuries in nature. Nature and cause of injury may kindly be asked from the treating surgeon. This witness has stated that cause of death is due to shock and haemorrhage Postmortem interval since death within six hours. He has further proved post mortem report prepared by him. This witness has also been cross examined by the defence and has stated that he could not say who was the treating doctor. He has also stated that interval cannot be between 6 to 12 hours 16 P. W. 10 Md. Sakoor is the formal witness, who proved F.I.R. marked Exhibit-5. 17. On a careful consideration of the statements of all the witnesses examined by the prosecution, I find that the statements of P.W. 1 (though declared hostile) P.W.2 (informant) P.W.8 (Investigating officer) and P.W. 9 (Doctor) are worth consideration. 18. The learned counsel appearing on behalf of appellant Subodh Sharma of Criminal Appeal no. 228/1997 submitted firstly, that there was no direct or circumstantial evidence on record to connect the appellant with the alleged offences, and secondly that the learned trial court failed to consider that exculpatory extra-judicial confession of a co-accused is no evidence in the eye of law and in the absence of any other evidence on record to prove the involvement of the appellant in the alleged offence, the appellant was entitled to a reasonable benefit of doubt. Thus, the only point for consideration is whether the prosecution has been able to prove and establish aliegations levelled against this appellant of having committed the alleged murder in the manner as alleged beyond any shadow of reasonable doubt. 19. In this regard three things have to be considered that is the factum of al leged murder, the position of material wirnesses with regard to the place of occur rence and the consistency and reliability of their oral evidence so far it relates to the guilt of the appellant. It is evidently clear from the prosecution story, as disclosed in the written report (Ext. 1) that while the informant (P.W. 2) was in his shop "Bihar Tubewell Industry" appellant of Cr.App.no. It is evidently clear from the prosecution story, as disclosed in the written report (Ext. 1) that while the informant (P.W. 2) was in his shop "Bihar Tubewell Industry" appellant of Cr.App.no. 238/1997 Badri Tanti came inside the shop and after handing over a letter to the informant told him to get ready with "Saman". At that time P. W.1, Dwakar Kumar Das, was also present in the shop. Thereafter when the deceased upon being ordered by P.W.2 followed the appellant Badri Tanti and caught hold of him outside the said shop, a companion of Badri Tanti namely, Subodh Sharma (appellant of Cr. App. no. 228/1997) shot from his country made pistol at Sunil (deceased) at his temple, who, later on, succumbed to his injuries. The informant (P.W. 2) has stated in his deposition that appellant Subodh Sharma had shot at the temple of the deceased. Subsequently, post mortem was performed on the dead body of Sunil Kumar (deceased) by P.W. 8, Dr. N. N. Bhagat, who found antemortern injuries thereon and stated that death was caused due to stock and haemorrhage. Thus, the aforesaid finding of P.W. 9 goes to prove and establish hat the deceased was done to death in the manner as alleged by P.W. 2 in his written report (ext. 1). The statement of P.W. 8, who is the investigating officer of the said case was sufficient to prove that Sunil Kumar was done to death at the place of occurrence as alleged by the informant. Hence, in my opinion, the evidences brought on record and proved by the prosecution are sufficient to establish the factum of murder in the alleged manner. 20. So far as the charge levelled against apoellant Subodh Sharma is concerned, from a careful consideration of all the evidences brought by the prosecution on record it appears that there is sufficient oral as well as documentary evidence so as to establish the charges under sections 302 and 386 IPC and Section 27 of the Arms Act. It appears from the evidence of P.W. 2, who is the informant and an eye witness to the said murder that this witness had seen the occurrence right from the beginning till the end.This witness has categorically stated in his deposition that it was appellant Subodh Sharma who pulled out a country made pistol and fired at the temple of the deceased. The antemortem injuries found by P.W. 9 proves that death was caused due to the injury sustained by the deceased, as a result of the aforesaid firing done by the appellant Subodh Sharma. Besides, statement of P.W.8 who is the investigating officer of this case, shows that after his investigation he found the case to be true. 21. Evidence of P.W. 2 appears to be a direct evidence as to the guilt of the appeellant Subodh Sharma of his having comitted the murder of the deceased Sunil Kumar. It is no doubt true that there is only one eye witness to the said murder but if the testimony of sole eye witness is consistent and trustworthy then the same may be relied upon provided other evidence pointing to the guilt of the accused are also consistent and corroborative. As discussed above, the statements of P.W.8 and P.W.9, who are Investigating Officer of the case and the doctor, who performed post mortem on the dead body of the deceased Sunil Kumar support and corroborate the statements of sole eye witness P.W. 2 (informant) on the point of charges levelled against appellant Subodh Sharma under sections 302 and 386 IPC and Section 27 of the Arms Act. 22. In the aforesaid backgrounds I am of the view that the contention raised by the learned counsel for the appellant Subodh Sharma are not sustainable and can safely be concluded and held that the prosecution has been able to prove and establish the charges under sections 302 and 386 IPC and Section 27 of the Arms Act against appellant Subodh Sharma beyond any shadow of doubt and, hence, I do not find any ground to interfere with the verdict of conviction recorded by learned Additional Sessions Judge against this appellant (Subodh Sharma). 23. Learned counsel appearing on behalf of appellant Badri Tanti submitted and contended that the impugned judgment of conviction of this appellant is bad in law as well as on facts. He further contended that the learned trial court erred in law in convicting the appellant under section 302/34 IPC inasmuch as there was no evidence on record to prove that this appellant shared the common intention to murder the deceased Sunil Kumar with the other appellant Subodh Sharma, who allegedly fired at the deceased. He further contended that the learned trial court erred in law in convicting the appellant under section 302/34 IPC inasmuch as there was no evidence on record to prove that this appellant shared the common intention to murder the deceased Sunil Kumar with the other appellant Subodh Sharma, who allegedly fired at the deceased. The learned counsel further contended that there is no allegation of assault or any overt act against the appellant Badri Tanti nor was the appellant armed with any weapon. 24. The aforesaid contention ot the learned counsel for the appellant Badri Tanti requires to be examined in the backgrounds of the evidences both oral and documentary brought on record and proved by the prosecution. It is evidently clear from the statement of P.W. 2., who is the eye witness to the occurrence, that it was this appellant who came with a letter containing threat of killing his son if Rs.1,50,000/- was not paid to the sender of the letter. Appellant Badri Tanti handed over the said letter to the deceased asking P.W. 2 to be ready with "Saman". After handing over the letter this appellant while leaving the shop was followed by the deceased Sunil on the instruction of P.W.2 and was caught by the deceased where upon appellant Subodh Sharma fired at him from his country made pistol. Dwarika Kumar Das, P.W.1., (though turned hostile) is an eye witness to the occurrence which took place inside the shop of the informant as this witness himself has stated before the court that at the time ot occurrence he was present in the shop of the informant. In view of the settled law the statement of hostile witness cannot be discarded as a whole. The statement of this hostile witness to the extent he stated as to the overt act committed by appellant Badri Tanti inside the shop of the informant can safely be relied upon so as to support and corroborate the statement of P.W. 2 (informant) on the point of guilt of appellant Badri Tanti. Thus, taking into consideration the evidences brought on records in its entirety I am of the view that the prosecution has been able to prove and establish that appellant Badri Tanti conciously brought letter containing threat of killing the informants son in case he did not fulfil the demand of Rs. 1,50,000/- made in the letter. Thus, taking into consideration the evidences brought on records in its entirety I am of the view that the prosecution has been able to prove and establish that appellant Badri Tanti conciously brought letter containing threat of killing the informants son in case he did not fulfil the demand of Rs. 1,50,000/- made in the letter. It is also clear from the evidences brought on record that after handing over the said letter to the informant (P.W. 2) appellant Badri Tanti left the shop whereupon he was chased by the deceased and caught by the deceased about 20-25 feet away from the shop towards Ajanta Cinema where appellant Subodh Sharma fired at the deceased Sunil. 25. From the examination of the evidences brought on record it is clear that there is no evidence to suggest that appellant Badri Tanti was carrying any weapon nor is there any evidence to suggest that there was some communication between appellant Badri Tanti and Subodh Sharma prior to the firing by the appellant Subodh Sharma on the deceased. Further no overt act with regard to the murder of the deceased Sunil has been alleged and proved by the prosecution. It is also not the case that appellant Badri Tanti induced or provoked the deceased to come out of the shop so that the deceased could be fired at. The evidence suggests that appellant Badri Tanti left the informants shop quietly. Thus, from a careful scrutiny of the prosecution evidences I find not a single evidence to indicate or suggest the criminal intention of the appellant Badri Tanti to murder the deceased. Thus, the prosecution has not been able to prove with definitiveness that the appellant Badri Tanti snared the common intention as required Under section 34 of the Indian Penal Code to commit the murder of the deceased, rather it has been satisfactorily proved by the prosecution that he had intention to commit extortion by putting the informant in fear of death of his son. To summarise, it can safely be concluded and held upon the consideration both oral and documentary evidences brought on record that the appellant Badri Tanti has been guilty of an offence under section 386 IPC because it is not the case that he only handed over the said letter to the deceased rather the appellant Badri Tanti also gave a specific direction to the informant that he should be ready with "Saffian" (money). 26. Thus in this case I am of the view that evidence of P.W. 1 and P.W.2 appears to be direct evidence regarding the guilt of appellant Badri Tanti of his having committed only the offence under section 386 IPC. However, the prosecution has not been able to bring on record and prove any evidence which can prove that accused Badri Tanti shared the common intention to commit the murder of the deceased as required under section 34 IPC. In the aforesaid background ) am not inclined to interfere with the finding of the learned Additional Sessions Judge of conviction of appellant Badri Tanti under section 386 IPC. Since no separate sentence under section 386 has been passed against this appellant though found guilty and convicted under this section this appellant is convicted and sentenced to undergo rigorous imprisonment for the period already undergone by him (As it appears appellant Badri Tanti is in jail custody since 2.5.1997) and directed to be released from jail custody if not required in any other case. 27. As regards the conviction and entence of appellant Badri Tanti under ection 302/34 IPC the contention of the learned counsel appears to be sustainable as there is no such evidence so as to prove and establish that appellant Badri Ttanti had any intention to commit alleged murder and that he had shared the common intention as required u/s 34 IPC. 28. Considering the evidences brought on record and discussions made above I come, to the conclusion and find that the prosecution has not been able to prove and establish the charge under section 302/34 IPC against this appellant (Badri Tanti) beyond reasonable doubt, hence, the conviction and sentence awarded to appellant Badri Tanti by the learned Additional Sessions Judge u/s 302/34 is set aside and he is acquitted for charge under section 302/34 IPC levelled against him. 29. In the result, Cr. Appeal no. 228/1997 preferred by appellant Subodh Sharma is dismissed. Cr. 29. In the result, Cr. Appeal no. 228/1997 preferred by appellant Subodh Sharma is dismissed. Cr. Appeal no. 238/1997 preferred by appellant Badri Tanti is also dismissed with modification to the extent that the judgment and order of conviction and sentence passed against Badri Tanti under section 302/34 IPC by the learned trial court is set aside and Appellant Badri Tanti is acquitted for the charges under section 302/34 IPC. Appellant Badri Tanti is found guilty for the charges under section 386 IPC and he is convicted and sentenced to undergo rigorous imprisonment for the period he has already undergone imprisonment. Since Appellant Badri Tanti is acquitted under section 302/34 IPC and sentenced to undergo rigorous imprisonment for the period for which he has already undergone imprisonment, he is directed to be released from jail custody forthwith, if not required in any other case. S.N.Jha, J. 30 I agree.