Judgment ( 1. ) BEING aggrieved by the judgment of conviction dated 21-7-93 under Section 302/34 of IPC in Sessions Trial No. 19/93, passed by Additional Sessions Judge Mungaoli, District Guna, the appellants have filed this appeal. ( 2. ) APPELLANTS were tried by Additional Sessions Judge, Mungaoli, District Guna in Sessions Trial No. 19/93 for a charge under Section 302/34 on an allegation that on 12-11-1992 at 6. 00 p. m. in furtherance of their common intention the appellants committed murder of deceased Ratna by causing injuries by lathi. ( 3. ) AS per prosecution story, Tulsiram (P. W. 1), elder brother of deceased Ratna, lodged a report at Police Station, Bahadurpur. In the FIR it is stated that he is residing at Village Jaroli. His brother deceased Ratna was working as a labourer in the field of Omprakash Lala. He is having Padat land in the village and both the appellants Santosh Yadav and Tofan Yadav used to graze the grass by their cattle in his field. On this there was a quarrel between them on the question of grazing of grass by their cattle in the field of Tulsiram (P. W. 1 ). Today, at about 8 oclock in the night he was taking meals at his house, Village Chowkidar Kanchedi informed him that Santosh and Tofan both have beaten Ratna. The deadbody of Ratna is lying on the road and Mansingh and Phoolsingh both had seen the incident. Thereafter, P. W. 1 went on spot alongwith Kanchedi and he has seen the deadbody and thereafter went to lodge the report. The FIR was recorded by S. S. Parmar (P. W. 10), which is Ex. P-l. Thereafter criminal law sat into motion and the matter was investigated. Spot map (Ex. P-2) was prepared. Statements of the witnesses were recorded. Naksha Panchayatnama Lash (Ex. P-8) was also prepared. Deadbody of the deceased was referred for post-mortem. Accused persons were arrested. Memorandum under Section 27 of the Evidence Act was prepared and article lathis were seized and charge-sheet was filed. Appellants were put to trial. ( 4. ) AT the trial appellants/accused persons abjured their guilt. Prosecution examined as many as 11 witnesses and after considering the prosecution evidence convicted the appellants under Sections 302, 34 of the IPC and sentenced to them for life imprisonment and a fine of Rs. Appellants were put to trial. ( 4. ) AT the trial appellants/accused persons abjured their guilt. Prosecution examined as many as 11 witnesses and after considering the prosecution evidence convicted the appellants under Sections 302, 34 of the IPC and sentenced to them for life imprisonment and a fine of Rs. 5,000/each and in default of payment of fine, further rigorous imprisonment of six months each. Against which, the appellants have filed this appeal. ( 5. ) WE have heard Shri Atul Gupta and Smt. Geeta Bhadoriya, Counsel appearing for the appellants and Shri S. S. Bansal, Government Advocate, appearing for the respondent/state. ( 6. ) LEARNED Counsel for the appellants submitted that there is no direct evidence in the case. There is no material evidence on record for convicting the appellants. Tulsiram (P. W. 1) has stated on the basis of the information received from Chowkidar Kanchedi. Phoolsingh (P. W. 3) and Mansingh (P. W. 2) have not supported the prosecution. The evidence of Dasiram (P. W. 7) is also not reliable. Dr. Roopsingh Parihar (P. W. 9) has not stated that any of the injuries either individually or collectively were sufficient in the ordinary course of nature to cause death and there is no background of enmity between the parties and in the absence of any evidence there can not be any conviction under Section 302, IPC. Their submission was that the Trial Court has convicted the appellants on the evidence of hostile witnesses. The conviction can not be based on the evidence of hostile witnesses and their testimony has to be discarded and the infirm witnesses can not corroborate each other and cited two decisions in the cases of Jagir Singh v. The State (Delhi Administration), reported in AIR 1975 SC 1400 ; and Muluwa s/o Binda and Ors. v. The State of Madhya Pradesh, reported in AIR 1976 SC 989 . ( 7. ) IN reply, learned Counsel for the respondent, Shri S. S. Bansal submitted that there is no bar that the conviction can not be based on the testimony of hostile witnesses if it is corroborated. In this case the evidence of hostile witnesses is fully corroborated by medical evidence. The evidence of extra- judicial confession of Omprakash (P. W. ,6) is also available on record, which is further supported by the evidence of memorandum prepared under Section 27 of the Evidence Act (Exs. In this case the evidence of hostile witnesses is fully corroborated by medical evidence. The evidence of extra- judicial confession of Omprakash (P. W. ,6) is also available on record, which is further supported by the evidence of memorandum prepared under Section 27 of the Evidence Act (Exs. P-11 and P-12) and seizure of lathi. ( 8. ) AFTER hearing the learned Counsel for the parties, we have considered the evidence of the witnesses. It is not in dispute that the prosecution was permitted to cross-examine Mansingh (P. W. 2), Phoolsingh (P. W. 3) and Dasiram (P. W. 7) and as per the medical evidence of Dr. Roop Singh Parihar (P. W. 9) the doctor has found three lacerated wounds; two lacerated wounds in the left parietal and one lacerated would in the right parietal region and five contusions and in the opinion of the doctor, the cause of death was syncope due to haemorrhage and haemorrhage in both the kidneys. The doctor has admitted in cross-examination that there was no injury by any sharp-edged weapon and the duration of death was within three days. In the cross-examination he has stated that it was within 24 hours and he has wrongly mentioned the duration of three days in his report (Ex. P-18 ). ( 9. ) TULSIRAM (P. W. 1), brother of deceased, who lodged the report has deposed that at about 9 oclock when he was in the house, Chowkidar Kanchedi (P. W. 5) has informed him that deadbody of his brother Ratna is lying on the road. He has also stated that he had informed that Phoolsingh and Mansingh had seen the incident and both had stated that appellants Tofan and Santosh both had assaulted the deceased. ( 10. ) MANSINGH (P. W. 2) and Phoolsingh (P. W. 3) were declared hostile and were cross-examined but in the examination-in-chief both have stated that they were knowing Ratna. They are also knowing appellants Tofan and Santosh. Mansingh (P. W. 2) has deposed that when he was preparing to inject his buffalo, Ratna came at the house of his door and Santosh also came behind him. Ratna asked Santosh why they are grazing their cattle in his field and there was a wordy quarrel between them. They are also knowing appellants Tofan and Santosh. Mansingh (P. W. 2) has deposed that when he was preparing to inject his buffalo, Ratna came at the house of his door and Santosh also came behind him. Ratna asked Santosh why they are grazing their cattle in his field and there was a wordy quarrel between them. In the cross-examination he has firmly maintained that there was altercation between Santosh and Ratna in his presence and Santosh gave a lathi blow to Ratna in his leg in his presence and he had only seen that he gave one lathi blow. Phoolsingh (P. W. 3) in the examination-in-chief has stated that when he came outside his house he had seen that there was a quarrel between Santosh and Ratna, then he had asked them why they arc fighting in front of his house. Thereafter Ratna went away and Santosh remained there. He does not know why they were fighting. After some time he came to know that the body of Ratna was lying near the road. When he reached on spot, Ratna was alive but when they shifted him on the road, he died. In the cross-examination he has firmly supported this version to the extent that there was altercation between Santosh and Ratna, except this he has denied the other versions. ( 11. ) LAXMIPRASAD (P. W. 4) is not the eye-witness of the incident. He has only stated that deceased Ratna was known to him. Appellants were also known to him. Phoolsingh had stated to him that Santosh has killed Ratna. ( 12. ) KANCHEDI (P. W. 5), Village Chowkidar, has also deposed that when he was coming back to his village from Mungaoli, Komal informed him that Tofan and Santosh have killed Ratna. Thereafter he went to inform Kamta Prasad Patel, who directed him to inform Tulsiram, brother of the deceased about the incident. In his presence Panchnama Lash and spot map were prepared. ( 13. ) OMPRAKASH (P. W. 6) has also stated that when he was coming back from his field, in the way Phoolsingh informed him that Santosh and Tofan have killed Ratna, whose body is lying near the field of Kanhi. In his presence Panchnama Lash and spot map were prepared. ( 13. ) OMPRAKASH (P. W. 6) has also stated that when he was coming back from his field, in the way Phoolsingh informed him that Santosh and Tofan have killed Ratna, whose body is lying near the field of Kanhi. He has further stated that thereafter Tofan and Santosh met him in the village and on asking both have stated to him that there was quarrel with Ratna, therefore, they have killed Ratna by lathis. They have also informed that the body of Ratna is lying near the field of Kanhi. Thereafter he with the help of Phoolsingh and Dasiram brought the body of Ratna on road. At that time he was breathing but thereafter he died. ( 14. ) DASIRAM (P. W. 7) has also supported the prosecution case upto the extent that when he was sitting on his door, Ratna, Tofan and Santosh came. They were quarrelling. Santosh was carrying lathi. In his presence Santosh assaulted Ratna by lathi and thereafter Santosh and Tofan both took him towards Jaroli road. In the cross-examination he has stated that Santosh and Tofan are the residents of his village and Ratna was not resident of his village. He does not want to have enmity with the villagers. He further stated that Ratna and Santosh were quarrelling at his door but Tofan was there or not, he can not say. ( 15. ) UDHAM Singh (P. W. 8) is the witness of Safina Form (Ex. P-7), Panchnama Lash (Ex. P-8), arrest memos (Exs. P-9 and P-10) and memorandums (Exs. P-11 and P-12) and also the seizure memo of lathis (Exs. P-13 to P-15 ). He has also taken the deadbody and executed its receipt (Ex. P-17 ). ( 16. ) AFTER critical analysis of the evidence, it is clear that Mansingh (P. W. 2) has stated that there was quarrel between Santosh and Ratna. Phoolsingh (P. W. 3) has also stated that there was quarrel between Santosh and Ratna in their presence, therefore, it can be said that they are the witnesses of last seen. Omprakash (P. W. 6) has stated that Phoolsingh had informed that Santosh and Tofan have assaulted Ratna by lathis but Phoolsingh (P. W. 3) only stated that there was quarrel between Santosh and Ratna. Omprakash (P. W. 6) has stated that Phoolsingh had informed that Santosh and Tofan have assaulted Ratna by lathis but Phoolsingh (P. W. 3) only stated that there was quarrel between Santosh and Ratna. He does not say anything about Tofan though Omprakash has also stated about the extra-judicial confession made by Tofan and Santosh before him that they have killed Ratna. Dasiram (P. W. 7) has stated about the incident before his house in his presence. In the cross-examination he has confirmed about the quarrel with Santosh but has further created doubt about the presence of Tofan. Therefore, from the aforesaid evidence of Mansingh (P. W. 2), Phoolsingh (P. W. 3) and Dasiram (P. W. 7) it is clear that in their presence quarrel took place between Ratna and Santosh and in presence of Dasiram Santosh assaulted Ratna by lathi. Therefore, the evidence about quarrel and causing lathi injuries by Santosh is consistent against Santosh. This evidence is corroborated by Omprakash (P. W. 6), before whom they have made confession. It is not in dispute that the evidence of extra-judicial confession as argued is a week type of evidence, but can be used for the purpose of corroboration only against Santosh. ( 17. ) IN view of the aforesaid evidence, as argued, now the sole legal question before the Court is what is the legal position of the evidence of hostile witnesses. Whether testimony of the hostile witnesses is to be fully discarded or any conviction can be based on the evidence of hostile witnesses. To consider the value of the evidence of hostile witnesses Shri Gupta, learned Counsel for the appellants, submitted two decisions of the Supreme Court in the cases of Jagir Singh (supra) and Muluwa (supra) but it is also necessary to consider the other judgments of the Supreme Court regarding the value of the evidence of hostile witnesses. ( 18. ) SECTION 154 of the Evidence Act provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross- examination by the adverse party. ( 19. ( 18. ) SECTION 154 of the Evidence Act provides that the Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross- examination by the adverse party. ( 19. ) IN case of Jagir Singh v. The State (Delhi Administration), reported in AIR 1975 SC 1400 , the Supreme Court has held that it is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discard that witness altogether and not merely to get rid of a part of his testimony placing reliance on Khijiruddin v. Emperor (AIR 1926 Cal. 139 ). ( 20. ) BUT, thereafter in the case of Bhagwan Singh v. The State of Haryana ( AIR 1976 SC 202 ), three Judges of the Supreme Court have held that where the Court gives permission to the prosecutor to cross-examine his, own witness, thus characterising him, as a hostile witness, that fact does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. ( 21. ) IN the case of Sat Paul v. Delhi Administration ( AIR 1976 SC 294 ), Justice Sarkaria speaking for the Bench has held that the law laid down in case of Jagir Singh (supra), is not to be treated as rule of law and has discussed the position under the law as under: "37. To steer clear of the controversy over the meaning of the terms "hostile" witness, "adverse" witness, "unfavourable" witness which had given rise to considerable difficulty and conflict of opinion in England, the authors of the Indian Evidence Act, 1872 seem to have advisedly avoided the use of any of those terms so that, in India, the grant of permission to cross-examine his own witness by a party is not conditional on the witness being declared "adverse" or "hostile". Whether it be the grant of permission under Section 142 to put leading questions or the leave under Section 154 to ask questions which might be put in cross-examination by the adverse party, the Indian Evidence Act leaves the matter entirely to the discretion of the Court (see the observations of Sir Lawrence Jenkins in Baikuntha Nath v. Prasannamoyi, AIR 1922 PC 409 ). The discretion conferred by Section 154 on the Court is unqualified and untrammeled, and is apart from any question of "hostility". It is to be liberally exercised whenever the Court from the witnessess demeanour, temper, attitude, bearing, or the tenor and tendency of his answers, or from a perusal of his previous inconsistent statement, or otherwise, thinks that the grant of such permission is expedient to extract the truth and to do justice. The grant of such permission does not amount to an adjudication by the Court as to the veracity of the witness. Therefore, in the order granting such permission, it is preferable to avoid the use of such expressions, such as "declared hostile", "declared unfavourable", the significance of which is still not free from the historical cobwebs which, in their wake bring a misleading legacy of confusion, and conflict that had so long vexed the English Courts. 39. The danger of importing, without due discernment, the. principles enunciated in ancient English decisions, for, interpreting and applying the Indian Evidence Act has been pointed out in several authoritative pronouncements. In Prafulla Kumur Sarkar v. Emperor, ILR 58 Cal 1404 = (AIR 1931 Cal 401) (FB) an eminent Chief Justice, Sir George Rankin cautioned, that "when we are invited to hark back to dicta delivered by English Judges, however, eminent, in the first half, of the nineteenth century, it is necessary to be careful lest principles be introduced which the Indian Legislature did not see fit to enact". It was emphasised that these departures from English law "were taken either to be improvements in themselves or calculated to work better under Indian conditions. "44. The aforesaid decisions of the Calcutta High Court were overruled by a Full Bench in Prafulla Kumar Sarkars case (supra ). After an exhaustive survey of case law, Rankin, C. J. , who delivered the main judgment, neatly summed up the law at pages 1428-1430 of the Report. (pp. "44. The aforesaid decisions of the Calcutta High Court were overruled by a Full Bench in Prafulla Kumar Sarkars case (supra ). After an exhaustive survey of case law, Rankin, C. J. , who delivered the main judgment, neatly summed up the law at pages 1428-1430 of the Report. (pp. 407-408 of AIR): "in my opinion, the fact that a witness is dealt with under Section 154 of the Evidence Act, even when under that section he is cross-examined to credit, in no way warrants a direction to the jury that they are bound in law to place no reliance on his evidence, or that the party who called and cross-examined him can take no advantage from any part of his evidence. There is moreover no rule of law that if a jury thinks that a witness has been discredited on one point they may not give credit to him on another. The rule of law is that it is for the jury to say. " 46. We are in respectful agreement with this enunciation. It is a correct exposition of the law on the point. 47. The Bombay, Emperor v. Jehangir Cama, AIR 1927 Bom 501; Madras, Ammathayarammal v. Official Assignee, ILR 56 Mad 7 = (AIR 1933 Mad 137); Patna, Nebati v. Emperor, ILR 19 Pat 369 = (AIR 1940 Pat 289); Patna, Sahdeo v. Bipti, AIR 1969 Pat 415 ; Rajasthan, ILR (1954) 4 Raj 822 = (AIR 1955 Raj 65), Oudh Shyam Kumar v. Emperor, AIR 1941 Oudh 130; Punjab, AIR 1955 NUC (Punj) 5715. Madh Pra, AIR 1964 Madh Pra 30; Orissa, In Re Kalu Singh; Rema Naik v. State, AIR 1965 Orissa 31; Mysore, AIR 1966 Mys 248; Kerala, 1951 Ker LT 471; Jammu and Kashmir, AIR 1953 J and K 41 Courts have also taken the same view. 48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witnesses evidence, though its value may be impaired in the eyes of the Court. (Halsbury, 3rd Edn. Vol. 15, Para 805 ). 50. 48. In the case of an unfavourable witness, even in England the better opinion is that where a party contradicts his own witness on one part of his evidence, he does not thereby throw over all the witnesses evidence, though its value may be impaired in the eyes of the Court. (Halsbury, 3rd Edn. Vol. 15, Para 805 ). 50. In Narayan Nathu Naik v. Maharashtra State, (1971) 1 SCR 133 = ( AIR 1971 SC 1656 ) the Court actually used the evidence of the prosecution witnesses who had partly resiled from their previous statements, to the extent they supported the prosecution, for corroborating the other witnesses. 51. From the above conspectus, it emerges clear that even- in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the Court, by the party calling him, his evidence can not, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of this testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence In toto. 52. It was in the context of such a case, where, as a result of the cross-examination by the Public Prosecutor, the prosecution witness concerned stood discredited altogether, that this Court in Jagir Singh v. State ( AIR 1975 SC 1400 ) (supra), with the aforesaid rule of caution -- which is not to be treated as a rule of law -- in mind, said that the evidence of such a witness is to be rejected en bloc. " ( 22. ) IN the case of Karruppanna Thevar and Ors. " ( 22. ) IN the case of Karruppanna Thevar and Ors. v. The State of Tamil Nadu ( AIR 1976 SC 980 ), the Supreme Court has again held as under:" a hostile witness may not be rejected outright but the Court has at least to be aware that, prima facie, a witness who makes different statements at different times has no regard for truth. The Court should therefore be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. Far from doing so, the High Court utilised a contradiction in the evidence of the hostile witness for corroborating the evidence of five other witnesses. " ( 23. ) IN the case of Rabindra Kumar Dey v. State of Orissa ( AIR 1977 SC 170 ), the Supreme Court has held as under:" it is also clearly well settled that the mere fact that a witness is declared hostile by the party calling him and allowed to be cross-examined does not make him an unreliable witness so as to exclude his evidence from consideration altogether. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence. AIR 1964 SC 1563 and AIR 1976 SC 202 , relied on. " ( 24. ) IN case of Syad Akbar v. State of Karnataka ( AIR 1979 SC 1848 ), Supreme Court has again held that if a witness is declared hostile, this is no ground by itself to reject his testimony in toto. His testimony not shaken on material points in cross-examination can not be brushed aside. Relied on Sat Pauls case (supra ). ( 25. ) IN case of State of Uttar Pradesh v. Chet Ram and Ors. ( AIR 1989 SC 1543 ), Supreme Court has held that the High Court should not brush aside the entire evidence which fully corroborates P. W. 3, merely on the ground he had been declared a hostile witness. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. ( 26. ) IN case of Gura Singh v. State of Rajasthan ( AIR 2001 SC 330 ), Supreme Court has held as under: " ( 27. The High Court has failed to bear in mind that merely because a witness is declared hostile, his entire evidence does not get excluded or rendered unworthy of consideration. ( 26. ) IN case of Gura Singh v. State of Rajasthan ( AIR 2001 SC 330 ), Supreme Court has held as under: " ( 27. ) FROM the aforesaid decisions, it is clear that the law laid down in Sat Pauls case (supra), is being followed and the Apex Court has clearly laid down the law that the evidence of hostile witnesses can not be discarded in toto. His evidence to the extent to which it supports the prosecution version can be relied upon if that part of the deposition is found to be creditworthy. Therefore, if the case in hand is examined in the light of the aforesaid pronouncement of the Apex Court, it is clear that the whole evidence of the hostile witnesses can not be discarded as argued by the learned Counsel for the appellants. This contention of the Counsel for the appellants can not be accepted that the whole testimony of the hostile witnesses is to be discarded. The decision in the case of Jagir Singh (supra), cited by the learned Counsel for the appellant has already been disapproved by the Apex Court in its subsequent judgment in the case of Sat Paul (supra) and in Para 52 the position has been clarified that the law laid down in Jagir Singhs case (supra) is not the correct law. ( 28. ) THUS, considering the evidence of Mansingh (P. W. 2), Phoolsingh (P. W. 3), Omprakash (P. W. 6) and Dasiram (P. W. 7), evidence is available against appellant Santosh but there is no trustworthy evidence against appellant Tofan, as Dasiram (P. W. 7) has created doubt about his presence in the cross-examination and Mansingh and Phoolsingh have not stated about the presence of Tofan, therefore, simply on the evidence of Omprakash (P. W. 6) about the extra-judicial confession made by Tofan without any corroborative evidence the conviction of appellant Tofan can not be upheld. Therefore, his conviction and sentence is liable to be set aside. ( 29. ) SO far as the evidence against appellant Santosh is concerned, clear evidence is available against him about beating by lathi to the deceased. Therefore, his conviction and sentence is liable to be set aside. ( 29. ) SO far as the evidence against appellant Santosh is concerned, clear evidence is available against him about beating by lathi to the deceased. Mansingh and Phoolsingh have clearly stated about the quarrel and beating by Santosh to deceased Ratna. Dasiram (P. W. 7) had also seen that Santosh assaulted Ratna by lathi. Evidence of Omprakash (P. W. 6) about the extra-judicial confession by Santosh is corroborated by the aforesaid evidence, therefore, it was Santosh, who gave lathi blows to the deceased in presence of Dasiram. As per medical evidence of Dr. Parihar (P. W. 9), though the deceased received three lacerated wounds on the left and right parietal region and 5 contusions and in the opinion of the doctor, the cause of death was syncope due to haemorrhage and haemorrhage in both the kidneys. The witnesses have also not stated that in which part of the body those lathi blows were given and the doctor has not stated that any of the injuries were sufficient in the ordinary course of nature to cause death. The doctor has also not stated that the injuries caused in the kidneys were fatal or could be caused by lathi. In the cross-examination he has stated that the deceased has not received any injury by sharp edged weapon. The doctor has further opined that the duration was three days though in the cross-examination he has stated that he has wrongly mentioned about the duration and corrected that it was within 24 hours. Except three lacerated wounds on the parietal region the other injuries were not on the vital part of the body. ( 30. ) THEREFORE, in the totality of the evidence on record, it can be held that in the absence of such a clear-cut medical evidence that all the injuries were sufficient in the ordinary course of nature to cause death it can not be said that the intention of Santosh was to cause death. Considering the absence of such a medical evidence and looking to the weapon used in the crime as well as the cause of quarrel between them and placing reliance on the decisions in the cases of Molu and Ors. v. State of Haryana ( AIR 1976 SC 2499 ); Ram Jattan and Ors. Considering the absence of such a medical evidence and looking to the weapon used in the crime as well as the cause of quarrel between them and placing reliance on the decisions in the cases of Molu and Ors. v. State of Haryana ( AIR 1976 SC 2499 ); Ram Jattan and Ors. v. State of U. P. (1993 AIR SCW 3841), it is held that it is not a case of murder under Section 302, IPC, but it is a case of culpable homicidal not amounting to murder under Section 304, Part II, IPC. Therefore, conviction and sentence of appellant Santosh under Section 302/34 of IPC is set aside and instead, he is convicted under Section 304 Part II, IPC and sentenced to five years R. I. ( 31. ) AS per appellant Santosh, uptil now he has only suffered 12 months jail sentence. Therefore, he is directed to surrender before the Trial Court within a period of thirty days for undergoing the remaining jail sentence, otherwise the Trial Court shall take him to custody and send him to jail for undergoing the remaining jail sentence. Bail bonds of appellant Santosh stand cancelled. ( 32. ) CONSEQUENTLY, this appeal is partly allowed. Conviction and sentence of appellant No. 1 Tofan Singh under Section 302/34 of IPC is set aside and he is acquitted from the charges. His bail bonds stand discharged. The conviction of appellant No. 2 Santosh is converted from Section 302 to Section 304 Part II, IPC and he is sentenced as aforesaid.