Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 1992 (MAD)

Kanthasamy & Others v. State

2003-12-04

M.THANIKACHALAM, P.SATHASIVAM

body2003
Judgment :- M. Thanikachalam, J. The first accused, who suffered a conviction under Section 302 I.P.C. and accused 2 & 3 who suffered a conviction under 302 r/w 34 I.P.C., are the appellants. 2. Upon the complaint filed by the respondent, the accused appellants, have been constrained to face the charges, since it is the case of the prosecution that all the accused, with an intention to commit murder, in furtherance of the common intention of all, the first accused appellant stabbed over the stomach of one Ayyavu @ Mathaian, while the accused 2 & 3 have caught hold of him, thereby causing the death of the said person, on 11.6.1993 at about 1.00 p.m. 3. The learned first Additional Principal Sessions Judge, Salem, considering the materials placed before him, to prove the offence, came to the conclusion, that all the accused, have committed the murder of Ayyavu, in furtherance of the common intention, and they should be visited with the penalty under Section 302 r/w 34 I.P.C. In this view, he convicted and sentenced all the accused, to undergo life imprisonment, and imposed a fine of Rs.500/- to each one of the accused, in default to undergo simple imprisonment for six months. 4. The prosecution case absolutely necessary for deciding the case briefly, as follows: (a) Tmt. Perumayi, P.W.1, is the wife of Ayyavu @ Mathaian. On the western side of their house, the accused appellants are residing. Accused 1 & 2 are brothers and they are the sons of the third accused. They have encroached upon the poramboke land, and residing there. In the enjoyment of the extent, there was some dispute between the parties. (b) On 11.6.1993 at about 1.00 p.m., when the accused have attempted to encroach upon the land, which is in the possession of P.W.1, there was a scuffle between the parties. Due to this enmity, in enjoying the lands, the first accused went inside the house, took a knife to assault the husband of P.W.1. On seeing this, when Ayyavu @ Mathaian attempted to escape and in that process, when they neared Mariamman Temple, accused 2 & 3 caught hold of Ayyavu and taking advantage of the same, the first accused, stabbed him over the stomach. This incident was witnessed by Tmt. Thangamani (P.W.2), Tmt. Kuppayi (P.W.3) and Thiru Palanisamy (P.W.4). On seeing this, when Ayyavu @ Mathaian attempted to escape and in that process, when they neared Mariamman Temple, accused 2 & 3 caught hold of Ayyavu and taking advantage of the same, the first accused, stabbed him over the stomach. This incident was witnessed by Tmt. Thangamani (P.W.2), Tmt. Kuppayi (P.W.3) and Thiru Palanisamy (P.W.4). (c) After the incident, under the fond hope, that her husband would survive, P.W.1 with the help of others, took her husband to the Salem Government Hospital, where he was declared, dead. Thereafter, on the same day at about 2.30 p.m., P.W.1 went to the police, and narrated the incident. (d) P.W.9 who was working as the Sub Inspector of Police, Annadanapatty Police Station, reduced the information given by P.W.1, into writing and obtained the signature or the thumb impression, as the case may be, that is in Ex.P.1. On that basis, a case was registered in Cr.No.509/93 under Sections 341, 323, 302 I.P.C., for which Ex.P.14 was submitted to the Court concerned. (e) Thiru Gopal, the then Inspector of Police, Annadanapatty Police Station, on receipt of the copy of Ex.P.14, commenced the investigation at about 3.45 p.m. On visiting and inspecting the scene of crime, he prepared Ex.P.2 observation mahazar, in the presence of P.Ws.5 & 6. After preparing the sketch, Ex.P.15 at 4.45 p.m. on the same day, under the cover Ex.P.3, P.W.10 recovered M.Os.5 & 6 from the scene of crime. He also examined the witnesses, recorded their statements. (f) In continuation of the investigation, P.W.10 proceeded to the hospital, conducted an inquest over the dead body of Ayyavu @ Mathaian between 5.30 p.m. and 8.30 p.m. and the outcome is Ex.P.16. On the same day i.e. on 11.6.93, on information, P.W.10 arrested the accused 1 & 3 at Kondalampatti, near petrol bunk bus stop, in the presence of P.Ws.5 & 6. The first accused on examination, confessed the concealment of M.O.1 under Ex.P.17, and in pursuance of the same, at about 11.30 p.m., M.O.1 was recovered under Ex.P.4. The recovered or seized materials were sent for chemical examination, with the help of P.W.8, through the Court. (f) At the request of the investigating officer, under Ex.P.7, P.W.7 conducted an autopsy over the body of Ayyavu at about 11.30 a.m. on 12.6.1993. The recovered or seized materials were sent for chemical examination, with the help of P.W.8, through the Court. (f) At the request of the investigating officer, under Ex.P.7, P.W.7 conducted an autopsy over the body of Ayyavu at about 11.30 a.m. on 12.6.1993. During the autopsy the doctor, noticed the following external injuries and its corresponding internal injuries: External injuries: "An oblique grapping stab wound present on the lower part of right side of epigastric region extending to the upper part of right side umblicus region. The lower end of the wound was 6 cms. above the unbilicus and 5 cms. right lateral to the midline. The gapping stab wound measured, 2.5 cm x 1.5 cm, deep to the abdominal cavity. The edges of the wound were clear cut. The lower lateral end of the wound was acute, the upper medial end of the wound was blunt." Internal injuries: "Spindle shaped gapping wound present on the anterior wall of the lower part of the stomach, 3.5 cms left lateral to the pyloric end of the stomach, 2cms above the level of the greater curvature. The edges of the wound were clean cut and deep to the cavity of the stomach. The wound measured 2 cm x 0.5 cm deep to the stomach cavity. On further examination the wound has cut through the posterior wall of the stomach close to the lesser curvature. 5.5 cm left lateral to the pyloric end of the stomach. The edges of the wound were clean cut. The wound measured 1.5 cms x 0.5 cm. On further examination the wound has entered into left thoracic cavity by penetrating the right cross close to the midline. On further examination it has entered into the lumen of lateral border of lower part of thoracic aorta which measured 2 mm x 2 mm and it was obliquely placed. The edges of the wound were clean cut." Analysing the nature of injuries and its effect inside the body, the doctor opined in Ex.P.8, that the deceased would appear to have died of stab injury of abdomen and its corresponding internal injuries. (h) The next investigating officer, P.W.11 obtaining the chemical examination report, and completing the investigation after examining the witnesses and recording their statements, came to the conclusion, that all the accused are responsible for the death of Ayyavu and therefore, he laid the final report. (h) The next investigating officer, P.W.11 obtaining the chemical examination report, and completing the investigation after examining the witnesses and recording their statements, came to the conclusion, that all the accused are responsible for the death of Ayyavu and therefore, he laid the final report. (i) The trial Court after framing charges, questioned the accused appellants, for which they pleaded not guilty. In view of the refusal to plead guilty by the accused, 11 witnesses were examined, on behalf of the prosecution, seeking aid from 17 documents, and six material objects, to prove the charges. The scanning of the above materials brought to surface, to the satisfaction of the learned first Additional Sessions Judge, that the accused have committed the offence. He found guilty, and sentenced them as aforementioned, which are under challenge before us. 5. Heard the learned counsel for the appellants, Mr. S. Paneerselvam and the learned counsel Government Advocate (Criminal side). 6. The learned counsel for the appellants submits that practically there is no evidence against A2 and A3, that too, to rope in them, under Section 34 of I.P.C., but unfortunately, they were also found guilty by the trial Court, which requires setting aside. The learned counsel further points out, that the oral evidence of P.W.1 and her relatives or the neighbours, namely P.Ws.2 to 4, are not in unanimity, corroborating each other and in this view also, the conviction and sentence slapped upon the accused, are liable to be erased. 7. He further pointed out that the alleged motive is not at all proved and therefore, according to him, the trial Court failed to take into account this aspect, thereby erred in convicting the accused. It is the further submission of the learned counsel, that the weapon said to have been recovered, on the basis of the confession given by A1, does not contain the blood stain, and therefore, the conclusion of the trial Court that M.O.1 was used to stab the deceased must be incorrect. 8. It is the further submission of the learned counsel, that the weapon said to have been recovered, on the basis of the confession given by A1, does not contain the blood stain, and therefore, the conclusion of the trial Court that M.O.1 was used to stab the deceased must be incorrect. 8. The main thrust of the learned counsel for the appellants is, if at all any offence is made out, that is only against A1 and that should come within the ambit of 304 (ii) I.P.C., since there was no pre-planned or premeditation, to commit the offence and if at all even as per the case of the prosecution, the incident ought to have taken place, due to sudden quarrel between the parties, that too, at the instigation of the deceased, creating some spur and therefore in the absence of intention to commit murder on the part of the accused, slapping conviction under Section 302 I.P.C., is not desirable. 9. The learned Government Advocate (Criminal side) repelling the above contention, would support the reasoning assigned by the trial Court, for the conviction. 10. The law was set on motion by P.W.1, by preferring Ex.P.1 on 11.6.1993 at about 2.30 p.m. as seen from the endorsement in Ex.P.1. The incident had taken place on the same day at about 1.00 p.m. After the incident, the main aim of the relatives would be, to save the injured, whether it would yield result or not. In this view, after the stabbing incident, P.W.1 and her relatives took the deceased, to hospital where he was declared dead. But thereafter, without any lapse of time, as spoken by P.W.1, which is corroborated by P.W.9, complaint was registered. Therefore, it is evident that either the police or P.W.1 had no chance for deliberation or discussion, to rope in the accused, taking advantage of the delay. In fact, the learned counsel for the appellants has also not attacked the genuineness of Ex.P.1 before us. Ex.P.1 gives the detailed account regarding the dispute between the parties, how the incident had taken place and how the accused have attacked the deceased etc. Further, the presence of the witnesses is also specifically mentioned in Ex.P.1. Thus, we see a very good foundation for this case, and at any stretch of imagination, doubting the base, is beyond our imagination. 11. Further, the presence of the witnesses is also specifically mentioned in Ex.P.1. Thus, we see a very good foundation for this case, and at any stretch of imagination, doubting the base, is beyond our imagination. 11. As spoken by P.W.1 and as seen from the cross examination, P.W.1 and her husband are residing adjacent to the house of the accused. It is also elicited during cross examination from P.W.1, that no patta was given to anybody. By way of suggestion, it is also elicited from P.W.1, that the house of the accused were ransacked on that date. It is in evidence, that the deceased had caused injury to the second accused, for which a complaint was given. It is the case of the defence, that there was no enmity between the parties in enjoying the porambake land, being the neighbours. On 11.6.1993 at about 1.00 p.m., there was some incident between parties, followed by scuffle and the parties were armed with the weapon is also admitted, as seen from the statement filed by the first accused, at the time of the examination under Section 313 Cr.P.C. In the statement it is said that the deceased Ayyavu along with 10 or 15 came to his house ransacked and looted the properties and at that time, when he attempted to escape, Ayyavu chased him and fell down. It is also suggested to the witnesses during the cross examination that P.W.1's husband attempted to assault the first accused, and in that process he fell down. Hence, it is crystal clear that the first accused was present at the time of the incident. If the first accused being present, had caused the injury to the deceased, which took away his life, then the penal provision should visit upon him. 12. The deceased Ayyavu died, due to stab injury of abdomen and its corresponding internal injuries, are not in dispute. As seen from the cross examination of P.W.7, an attempt was made to suggest that this kind of injury could be possible by fall, which is not accepted by the doctor. The nature of injury external as well as internal, would suggest, that a person having a knife in his hand and by falling down, is not possible to sustain this kind of injury. The nature of injury external as well as internal, would suggest, that a person having a knife in his hand and by falling down, is not possible to sustain this kind of injury. Therefore, accepting the oral evidence of P.W.7, we have no hesitation to conclude that the deceased was stabbed by somebody and if that somebody is A1 and the weapon is proved to be M.O.1, then the first accused is liable to be dealt with under Section 302 or 304 I.P.C. as the case may be, which we will discuss hereunder. 13. The learned counsel for the appellant submits that as seen from Ex.P.12, no blood was detected on the knife i.e. M.O.1. It is the case of the prosecution that M.O.1 was recovered on the basis of the confession given by the first accused. Since this weapon does not contain the blood, the learned counsel for the appellant submits that there is no possibility of this weapon being used to stab the deceased. We are unable to agree. The weapon was recovered at later point of time and there is every possibility of the blood being wiped out and therefore, only on the ground that weapon used, does not contain the blood stain, the accused is not entitled to an acquittal, if the act of the accused is proved otherwise. Hence this contention is rejected. 14. The contention of the learned counsel for the appellant, that the interested oral testimony of P.W.1 supported by other relatives, does not deserve acceptance, is not acceptable to us, since law does not prohibit the acceptance of interested oral testimony, and if at all their evidence should be scanned with much more care. The learned counsel for the appellants took us through the entire evidence and going through the same, we are unable to find out any material inconsistency, cutting the root of the case and in this view, ignoring if at all any ordinary omission and commission, we are inclined to accept their testimony, as worthy of credence. 15. As aforementioned, motive is also attacked to certain extent and the question is, who is the aggressor at the time of the incident. 15. As aforementioned, motive is also attacked to certain extent and the question is, who is the aggressor at the time of the incident. Because of the enjoyment of the property in Poramboke land, and the annexure of more extent, as seen, even from the cross examination of P.W.1, there was dispute and enmity between the parties and this may be the cause, for the act described in the final report. Even in the absence of the motive, which takes the back seat, if the offence is otherwise proved, law permits to punish the accused, who committed the offence. Therefore, next we have to see the evidence available on record, and the oral testimony of P.Ws.2 and 3 especially. 16. In order to rope in A2, A3 and convict them under Section 302 r/w 34 I.P.C., the prosecution should make out a case, that the criminal act was done by all the three, in furtherance of common intention of all. Only in that case alone, each accused is liable for the act, in the same manner as if it were done by each person individually. alone. Section 34 lays down a principle of joint liability, in the doing of a criminal act and for that the existence of the common intention is absolutely necessary. More or less, Section 34 imposes a vicarious liability and therefore, the materials available should prove a prearranged plan, because of the fact, a man has to be vicariously convicted for the criminal act of another, in addition to the establishment of the act must be done in furtherance of the common intention of all. If the constructive criminal liability is not proved, question of imposing punishment, under Section 34 would not arise, the fact being this section does not by itself create any offence, whereas it enacts a rule of coextensive culpability, when the offence is committed with the common intention, by more than one accused, as ruled by the Apex Court. Common intention generally implies, acting in consent, existence of a prearranged plan which has to be made out, either from the conduct of the parties or from the circumstances, surrounding the case or from the incriminating circumstances available unavoidably. In these back ground, we have to see the act of A2 and A3, if any committed. 17. Common intention generally implies, acting in consent, existence of a prearranged plan which has to be made out, either from the conduct of the parties or from the circumstances, surrounding the case or from the incriminating circumstances available unavoidably. In these back ground, we have to see the act of A2 and A3, if any committed. 17. The case of the prosecution against A2 and A3 is that both the deceased caught hold of the deceased opposite to Mariamman temple. In support of the above contention, P.W.1 would state ".... mg;nghJ 2. 3 vjphpfs; vd; fztiu MSf;bfhU gf;fk; goj;Jf;bfhz;lhh;fs;." During the cross examination, she would state "vd; fztiu 2. 3 vjphpfs; fl;og; gpoj;Jf;bfhz;lhh;fs;/ 1k; vjphp vd; fzthpd; tapw;wpy; Fj;jptpl;lhh;/ 2. 3 vjphpfs; vd; fzthpd; iffis MSf;bfhUth; gpoj;Jf; bfhz;lhh;fs;. In the same manner P.W.2 also has given evidence, as if both the accused caught hold of the deceased from back side. P.W.3 would state "ma;aht[it 2.3 vjphpfs; iffisg; gpoj;Jf;bfhz;lhh;fs;" P.W.4 would accept his ignorance, regarding the active role of A2 and A3. In Ex.P.1, no detail is given, implicating A2 & A3 specifically, except merely saying that they caught hold of the deceased. It was elicited from P.W.10, that P.Ws.1 to 4 have not given statement before him, as indicated above. Thus, it is evident, P.Ws.1 to 4 have developed the case, stage by stage, only to implicate the accused 2 & 3, if possible under Section 34 I.P.C. 18. In this view, we are unable to accept the oral evidence of P.Ws.1 to 4, regarding their evidence, given against A2 and A3. If both the accused have caught hold of the deceased, from back side or front side, then stabbing the deceased by A1 would be remote, without causing injuries to A2 & A3. In this view also, it appears to our mind, that the evidence given by P.Ws.1 to 4 are artificial nature and does not fit in with the probability also. 19. P.Ws.1 to 4 have not given any evidence either directly or impliedly, that all the accused jointly, in furtherance of the common intention, as per the plan to commit the murder of the deceased, and in executing that pre plan, have assaulted or stabbed the deceased on the date of the incident. 19. P.Ws.1 to 4 have not given any evidence either directly or impliedly, that all the accused jointly, in furtherance of the common intention, as per the plan to commit the murder of the deceased, and in executing that pre plan, have assaulted or stabbed the deceased on the date of the incident. On the other hand, the evidence available on record would suggest, that the accused were also the victims of the incident and therefore, the question of preplanning or the actual involvement of A2 & A3 appears, to be a remote one, in this case. Further, the actual involvement of A2 and A3 as well as their presence at the scene of crime is also doubtful. Even assuming that A2 & A3 were present, they have not acted in any way, as per the evidence, executing any pre plan or premeditation, so as to attract Section 34 of I.P.C. In this view, we are unable to confirm the view taken by the trial Court, which is not based on reasons, that the accused 2 & 3 are also liable to be punished under Section 302 r/w 34 I.P.C., only because of their presence or the alleged involvement. In this view, in our considered opinion, A2 and A3 are entitled to an acquittal. 20. The first accused alone had played the main role in taking the life of Ayyavu @ Mathaian, which could be seen from Ex.P1 supported by other strong and unimpeachable evidence. Immediately after the incident, on 11.6.1993 itself, at about 2.30, the complaint was given, wherein it is stated that the first accused went inside his house, returned with a knife, and using the same, stabbed the deceased. The implication of other two accused, in our mind appears to be an exaggeration and the chaff has to be separated from the grain. The witnesses' name also does find place in Ex.P.1. Though P.W.1 is the wife of the deceased, we find no reason, to discard her oral testimony since it is in all fairness, to say that she might have been present at the time of the incident. She has deposed that when her husband questioned the high handed activities of the deceased, in encroaching upon the property, the first accused went inside, brought a knife and using the same, stabbed over the stomach of the deceased, and thereafter, left the place with the weapon also. She has deposed that when her husband questioned the high handed activities of the deceased, in encroaching upon the property, the first accused went inside, brought a knife and using the same, stabbed over the stomach of the deceased, and thereafter, left the place with the weapon also. This evidence given by P.W.1 is fully confirmed and corroborated by P.W.2 as well as P.W.3, without much contradictions and unnaturalness. 21. P.Ws.2 to 4 have deposed about the actual stabbing of the deceased, by the accused and they have also identified M.O.6. Since the incident had taken place at about 1.00 p.m. or so, question of identification is not a problem, the further fact being, the accused is the neighbour and the witnesses are all known to him. Except some small contradictions, who chased who, how A2 and A3 caught hold of the deceased, there is no much adverse contradictory evidence. As far as A1 is concerned, without much contradiction, they have spoken, establishing the prosecution case, against the first accused. Since a doubt had arisen about involvement of A2 and A3, as aforementioned, we have given the benefits of doubt to them and the same benefit of doubt is not available to the first accused, in view of the clinching evidence. Thus, accepting the oral evidence of P.Ws.1 to 4, as far as the involvement of A1 is concerned, we conclude that A1 by using M.O.1 had stabbed the deceased, which terminated the life of Ayyavu prematurely, for which he has to be held responsible. 22. The learned counsel for the appellants attempted to assail Ex.P.1, on the basis of some contradiction, and in this view, he pointed out further that the foundation itself is shaky, which should follow, the investigation also should fall down, failing to bring home the guilt of the accused. P.W.1 during the examination in chief would state, that in Ex.P.1, she affixed her thumb impression, whereas P.W.9, who recorded the statement, Ex.P.1, would state that he obtained the signature of P.W.1. As seen from Ex.P.1, we do find only left thumb impression of P.W.1. In this view of the evidence given by P.W.9, that P.W.1 had signed in Ex.P.1 as said supra, an attempt is made to assail this document. As seen from Ex.P.1, we do find only left thumb impression of P.W.1. In this view of the evidence given by P.W.9, that P.W.1 had signed in Ex.P.1 as said supra, an attempt is made to assail this document. The author of Ex.P.1, on whose information a statement was recorded, has categorically deposed about the affixing of her thumb impression, which is in tune with the document and therefore in our opinion, the evidence given by P.W.9 mistakenly, that he obtained the signature of P.W.1 would not have any significance, in view of the further fact P.W.1 does not know how to read and write. Considering the admitted fact or the proved fact that A1 was present at the time of the incident, as well as the natural evidence of P.Ws.1 to 3, which is confirmed even during the cross examination, we find no error in the judgment of the lower Court, as far as convicting A1 is concerned. 23. The investigation done by P.W.10 in this case also did not contain any grey area, doubting about the collection of the evidence, as well as material objects. P.W.10 would state that he arrested the first accused on 11.6.1993 at about 10.00 p.m. in the presence of P.W.5 and P.w.6 and on the basis of the statement given by the accused, he recovered M.O.1 under Ex.P.4. This evidence was completely corroborated by P.W.5 and we find no reason to disbelieve the testimony of P.W.5 in this regard. 24. The learned counsel for the appellants attempted to assail the oral evidence of P.W.5., on the basis of some contradictions. This eye witness would state that the first accused after the incident, put the knife after folding, in his pocket and ran away. P.W.5 would state that the first accused took out the knife from his hip, under the dothi and handed over the same. Thus, we find some inconsistency, actually where from the knife was taken out by the accused and handed over to P.W.10. The fact remains, irrespective of the contradiction, the accused alone had handed over the weapons, and therefore, in our view, the above said contradiction, will not in anyway disprove the case of the prosecution, improving the defence. Thus, we find some inconsistency, actually where from the knife was taken out by the accused and handed over to P.W.10. The fact remains, irrespective of the contradiction, the accused alone had handed over the weapons, and therefore, in our view, the above said contradiction, will not in anyway disprove the case of the prosecution, improving the defence. This weapon was identified by the eye witnesses also which would indicate that the witnesses were capable of identifying the weapon, because of the fact that they have seen this weapon, when the same was used by A1 to stab the deceased. 25. By way of final submission, this being the main argument also, the learned counsel for the appellants would contend, that the offence against the first accused should come only under Section 304 (ii) I.P.C. In support of the above contention, he has pointed out under what circumstances, the incident had taken place, how the deceased had been to the place of the accused and provoked them etc. It is admitted by P.W.1, that when the accused were planting the sticks, to demarcate the boundary, the deceased had been there and questioned his act. It is also admitted by P.W.1, that her husband attempted to assault Kandasamy, the first accused. It is elicited from P.W.1, further that prior to the incident narrated in the final report, there was a dispute between the second accused and the deceased and the second accused also preferred a complaint to the police. P.W.1, further admits that the house of the accused was ransacked, damaging to the maximum extent. She further admits, she scolded the third accused also at the time of the incident. The above conduct of P.W.1, would suggest that the deceased and P.W.1 alone, at the first instance should have provoked the first accused. Because of the provocation, unable to control himself, it seems the first accused went inside the house, took a knife, then assaulted the deceased. While the assaulting also, the attending circumstances would reveal, that the first accused had no intention to commit the murder of Ayyavo and that is why he slapped once, then left the place. Because of the provocation, unable to control himself, it seems the first accused went inside the house, took a knife, then assaulted the deceased. While the assaulting also, the attending circumstances would reveal, that the first accused had no intention to commit the murder of Ayyavo and that is why he slapped once, then left the place. If really he had the intention to commit murder or if he had the knowledge that the injury caused by him would lead to death, he would have assaulted number of times or at least would have made an attempt to assault further, which are all absent in this case. 26. Under the above facts and circumstances of the case, considering the over all effect of the evidence, we conclude, that the act of the accused should come under Exception IV of 300 I.P.C. then attracting 304 (ii) I.P.C. Since the first accused has stabbed the deceased, with knowledge that it is likely to cause death, but without any intention, to cause death or to cause such bodily injury as likely to cause death, his act comes only under Section 304 (ii) I.P.C. Therefore, the conviction slapped by the trial Court, upon the first accused under 302 I.P.C. should be modified, under Section 304 (ii) I.P.C. 27. The first accused after conviction has been in custody for more than 5 years. The incident had taken place on 11.6.1993. and from the said date onwards, the accused's family is suffering the ordeal of facing the trial, including the preferring of this appeal. Having regard to the facts and circumstances of the case, as well as for the reasons assigned supra, we are satisfied, that the period already undergone by the first accused, would meet the ends of justice and in this view, the period already undergone is to be treated as sentence, as far as A1 is concerned. In the result, allowing the appeal in part, holding that the offence reported against A2 and A3 are not proved beyond all reasonable doubt, we acquit A2 & A3. The sentence and conviction upon the first accused is modified under Section 304 (ii) I.P.C. instead of under Section 302 I.P.C. The period already undergone by him, is treated as the period of imprisonment, reducing the sentence, to the period already undergone. The first accused/first appellant is ordered to be released. The sentence and conviction upon the first accused is modified under Section 304 (ii) I.P.C. instead of under Section 302 I.P.C. The period already undergone by him, is treated as the period of imprisonment, reducing the sentence, to the period already undergone. The first accused/first appellant is ordered to be released. In this view, the bond if any executed by A1 to A3, shall stand discharged, discharging the sureties also. The fine paid by A2 & A3 alone is ordered to be refunded, whereas sentence of fine imposed on A1 is confirmed.