Hon'ble Vinod Prasad, J. Hon'ble Surendra Kumar, J. ( Delivered By The Bench) A quadruple of appellants Ganga Saran( A-1), Kallu @ Tena( A-2), Joma ( A-3), and Kailash ( A-4), have preferred above two connected appeals, questioning the legality and sustainability of their conviction under sections 302/34 I.P.C. and 302 I.P.C. simplicitor, recorded by Special Judge, E.C. Act, Badaun in S.T. No. 383 of 1982, State Vs. Kailash and others. Learned Trial Judge has convicted appellant Kailash A-4, under section 302 I.P.C., whereas rest of the appellants have been convicted under section 302/34 I.P.C. All of them were sentenced to imprisonment for life for that crime. 2. Eschewing unnecessary details and stated laconically, incident in question occurred on 8.7.82 at 11.30 A.M., within the precinct of District Court, Badaun. It was alleged in the written FIR, Ext. Ka-1, by the informant Ibney Hasnain, that few days prior to the present incident, one Vimal Balmiki, brother of appellant Kailash ( A-4), was murdered in which crime sons of Kadir Khan, injured/deceased of the present incident, were the accused and by the time present incident had occurred they were not let off from jail. Informant was deceaseds' friend and he used to visit his house off and on. On the incident date 8.7.82, sons of Kadir Khan were to be remanded in the murder case and, therefore, informant Ibney Hasnain, accompanied by injured/deceased Kadir Khan had gone to the district court to meet them. At 11.30 A.M., when both, the informant and the injured/deceased, were proceeding towards the police lock up, situated within court campus, then, all of a sudden, appellants accused appeared at the scene. Three of the accused appellants ( A-1), ( A-2) and ( A-3), Joma, Kallu @ Tena and Ganga Saran, instigated their fourth companion Kailash ( A-4), for seeking revenge, on which, appellant Kailash ( A-4), wielded a knife on the injured/deceased Kadir Khan. This incident was witnessed by the informant Dularey, Shamim, Amir Ahmad and many others, who were present at the spot. Albeit, witnesses had tried to rescue the injured/deceased after instigation was aired, but meanwhile, appellant Kailash ( A-4), had already struck two knife blows on the deceased causing him two incised wounds. After the assault accused sprinted away from the incident scene, but were chased by the witnesses. Albeit, witnesses had tried to rescue the injured/deceased after instigation was aired, but meanwhile, appellant Kailash ( A-4), had already struck two knife blows on the deceased causing him two incised wounds. After the assault accused sprinted away from the incident scene, but were chased by the witnesses. Meanwhile two police constables arrived at the place of the incident and with their help appellant Kailash ( A-4), was rounded up and apprehended along with the crime weapon knife, and was handed over to the constables. Injured Kadir Khan sustaining injuries, toddled up a nearby Verandah and sat there. He was transported to the hospital with the help of gathered crowd, where he was admitted at 12 noon in the emergency ward and his medical examination was conducted vide his medical examination report Ext. Ka-5. Dr. had detected following injuries on his person:- " Injuries:- ( 1) Incised wound 2.5cm x 1cm x muscle deep on right side of the chest, 3cm medial to right nipple at 2 O' clock position. Probing not done. Referred to surgeon. ( 2) Vertical incised wound 4cm x 0.75cm x muscle deep on back of left scapular region 6cm outer to mid spine of T3 to T6. ( 3) Lacerated wound 1cm x 1cm on lower eye lid at outer angle of right eye. Injury no. 1 is kept under observation. Injury 2 & 3 are simple. Advised X-ray chest. Injury Nos. 1 and 2 caused by sharp object while injury no. 2 by blow object. Duration fresh." Informant Ibney Hasnain, scribed written FIR, Ext. Ka-1, about the crime, carried it to the police station Civil Lines, at a distance of one kilometer, and lodged it there at 12.10 P.M., same day, against the named accused, as crime No.175 of 82,u/s 307 I.P.C. 4. On the basis of written FIR Ext. Ka-1, chik FIR Ext. Ka-8 and relevant GD entry were prepared. Kali Charan Sharma ( P.W. 7) S.O. Civil Lines, District Badaun, in whose presence the crime was registered, commenced investigation into the offence, interrogated the informant and then came to the hospital. He had also prepared map of the incident place, Ext. Ka-9. Blood stained and plain earth, material Exts. 1 & 2, were also collected from the spot for which recovery memo Ext. Ka-10 was inked. Concluding investigation, I.O. had charge sheeted the accused on 17.7.1982. 5. He had also prepared map of the incident place, Ext. Ka-9. Blood stained and plain earth, material Exts. 1 & 2, were also collected from the spot for which recovery memo Ext. Ka-10 was inked. Concluding investigation, I.O. had charge sheeted the accused on 17.7.1982. 5. Perusal of the trial court record further informs us, that while the injured was admitted in the hospital, his statement, in the form of his dying declaration, Ext. Ka-6, was recorded by City Magistrate, Badaun, on 8.7.82 itself, which contains a certificate from Dr. V.P. Bhatnagar, that injured was in a fit state of mind and could have given a valid statement. This dying declaration contains RTI of the injured deceased. Same day at 1.35 p.m. injured expired in the hospital regarding which a memo, Ext. Ka-7, was dispatched to P.S. Kotwali by the doctor at 1.40 p.m. 6. After demise of the injured, inquest on his cadaver, vide inquest memo, Ext. Ka-11, was performed by S.I. K.D. Chaudhari of P.S. Kotwali. Simultaneously, the said S.I. had also prepared other relevant papers of photo-lash, impression seal, challan-lash, letters to CMO and RI, which all papers, have been proved by the I.O. Kali Charan Sharma, P.W.7, as Exts. Ka-12 to Ka-15. 7. Autopsy on the cadaver of the deceased was conducted by Dr. R.K. Verma,P.W.4 on 8.7.82 at 1 P.M. in the District Hospital, Badaun vide postmortem examination report, Ext. Ka-2. According to the doctor, deceased was 55 years of age and he had an average built body. No decomposition of his corpse had started and rigor mortis was present in both, upper and lower, extremities. His eyes were partially open. Doctor had noted following external ante mortem injuries, which were detected by him on the deceased's corpse:- Ante Mortem Injuries:- "Bandaged wounds of Hospital Bandage removed+examined:- ( 1) Incised wound 2.5 cm x 1 cm x muscle deep on Rt side of the chest 3 cm medial to the Rt nipple at 2'0' clock position, ( 2) Vertical incised wound 4 cm x 0.75 cm muscle deep on back of left scapular region 6 cm outer to mid spine of T3 to T6. ( 3) Lacerated wound 1 cm x 1 cm on lower eye lid at the outer angle of the Rt Eye. On dissection of Injury No.1-SKin intercostal muscle and 4th rib cut and fractured at the stern costal bone 4th space. ( 3) Lacerated wound 1 cm x 1 cm on lower eye lid at the outer angle of the Rt Eye. On dissection of Injury No.1-SKin intercostal muscle and 4th rib cut and fractured at the stern costal bone 4th space. The pleura Rt lung at the level of injury wt. enhving IC. M deep on the lung his lung collapsed. All the great vessels collapsed. The Rt chest cartly contusion 2 pint of clotted blood on dissection Inj. No.2.- Muscle cut and damaged at the left scapular region mixed with blood the bone beneath it is normal+is not fractured on dissection of Injury No.3;- It is away from eye and the Rt eye is safe." 8. According to the doctor's estimation, deceased had died due to shock and hemorrhage as a result of sustained ante mortem injuries. 9. Charge sheeting of the accused resulted in registration of Criminal Case No. 1930 of 82, State versus Kailash and others, against them in the court of CJM, Badaun and accused were summoned u/s 302/307 IPC and, thereafter, finding their crime triable by Court of Session's, CJM, Badaun had committed their case to the Session's Court on 4.8.82, where it was registered as S.T. No. 383 of 82, State versus Kailash and 3 others. 10. Learned Trial Judge charged accused appellant Kailash ( A-4), under Section 302 I.P.C., whereas rest of the three appellants Kallu @ Tena, Joma and Ganga Saran, A1 to 3, were charged u/s 302/34 I.P.C. on 25.8.82. Both the charges were read out and explained to the respective accused, who denied the same and claimed to be tried and consequently, to establish their guilt, Session's Trial procedure was under taken. 11. Prosecution in it's endeavour to succeed in the trial relied upon oral testimonies of seven witnesses, out of whom, Dularey Khan ( P.W. 1), Shamim Ahmad ( P.W. 2) and Ibney Hasnain ( P.W. 3) were the fact witnesses. Formal witnesses examined included Dr. R.K. Verma ( P.W.4), M.O. District Hospital, Badaun, who had conducted autopsy on the dead body of the deceased. Dr. V.P. Bhatnagar,( PW.5), is the Medical Officer of District Hospital, Badaun, who had examined injured/deceased, and had prepared his medical examination report Ext. Ka-5. He had also appended certificate on the dying declaration, Ext. Ka-6. Formal witnesses examined included Dr. R.K. Verma ( P.W.4), M.O. District Hospital, Badaun, who had conducted autopsy on the dead body of the deceased. Dr. V.P. Bhatnagar,( PW.5), is the Medical Officer of District Hospital, Badaun, who had examined injured/deceased, and had prepared his medical examination report Ext. Ka-5. He had also appended certificate on the dying declaration, Ext. Ka-6. Shambhu Singh Yadav, City Magistrate, Badaun, ( PW.6),who had recorded the dying declaration and I.O. Kali Charan Sharma, S.O., ( PW.7). Besides oral testimonies of above witnesses, prosecution had also relied upon various documentary evidences in the form of written FIR, chik FIR, GD entry, postmortem examination report, injury report, site plan etc. 12. It is noted here that apparels and spectacles of the deceased, knife, and soils seized during the course of investigation, were sent to forensic science laboratory for testing and it's reports dated 20.9.82, and 15.10.82, Ext. Ka 17 & 18, are on the record,perusal of which indicates that on the attires of the injured deceased and on his spectacle, blood stains were present. 13. In their statements under section 313 Cr.P.C., all the accused abjured incriminating circumstances appearing against them in the prosecution evidences and pleaded their false implication. 14. Learned Trial Judge, vide impugned judgment and order dated 25.2.83, held that prosecution had successfully anointed accused guilt and, therefore, convicted and sentenced them, as has already been recorded in the opening paragraph of this judgment and hence are being eschewed from being repeated. 15. In the background of the aforesaid facts and circumstances, we have heard Sri P.N. Mishra, learned senior counsel assisted by Sri Rahul Mishra for the appellants in both the appeals and Sri Sangam Lal Kesharwani, learned AGA for respondent prosecutor State. 16. So far as Criminal Appeal No. 527 of 1983 preferred by appellant Ganga Saran( A-1) is concerned, it stands abated as the said appellant has expired. In the connected Criminal Appeal No. 540 of 1983, one of the appellant Kallu @ Tena ( A-2) has also died, therefore, his appeal was also abated. This has left us to consider appeals of only two appellants Joma ( A-3) and Kailash ( A-4). 17. In the connected Criminal Appeal No. 540 of 1983, one of the appellant Kallu @ Tena ( A-2) has also died, therefore, his appeal was also abated. This has left us to consider appeals of only two appellants Joma ( A-3) and Kailash ( A-4). 17. Sri Mishra, learned senior counsel assailing impugned judgment of conviction and sentence contended that on the facts and merits of the case, it is evident that it is not a case where section 34 I.P.C. could have been applied, as no common intention had prevailed amongst all the accused prior to the incident. When the injured deceased was attacked, rest of the accused but for ( A-4) had absolutely no idea that ( A-4), shall indulge into the crime. In this respect prosecution allegations are incredible, wavering and does not inspire any confidence. All of a sudden, within the Court precinct, ( A-4) came eye to eye with the informant and deceased and the incident occurred in a flash. Deceased sons were languishing in jail and hence informant had motive to nail in all the associates of his rival sides, whereas, Joma ( A-3) had no reason to participate in the crime. It is impossible to cogitate that three accused shall simultaneously raise a challenge, without any motive, all of a sudden. None of them had carried any weapon with them, nor they had associated themselves with any active role during the incident submitted learned counsel. No effort, at all was made by them to annihilate the deceased. There was enough reason for the informant and the fact witnesses to implicate them in the crime, which seems to have occurred only in between the appellant ( A-4) and the deceased. It was reiterated that Joma ( A-3) had absolutely no reason to involve himself in a case of assault without any rhyme or reason. He had no criminal background nor any criminal proclivity and considering entire facts and circumstances his participation in the incident is not convincingly established. 18. It was reiterated that Joma ( A-3) had absolutely no reason to involve himself in a case of assault without any rhyme or reason. He had no criminal background nor any criminal proclivity and considering entire facts and circumstances his participation in the incident is not convincingly established. 18. For another appellant main accused ( A-4), it was urged that his guilt will not transgress the purview of section 304- part ( I) I.P.C., as from the injury as well as autopsy report, it is discernible that the said appellant had not harbingered any intention to commit murder or cause any such injury, which in all probability would have been sufficient in the ordinary course of nature to cause death, and, therefore, his crime will be circumscribed only within the periphery and ambit of section 304 Part ( I) I.P.C., of culpable homicide not amounting to the murder. Basically on these submissions, learned counsel contended that so far as appellant Joma ( A-3) is concerned, he deserves acquittal and guilt of the appellant Kailash ( A-4), be mollified to section 304 ( I) I.P.C. and he be sentenced suitably for that offence and his conviction under section 302 I.P.C., the imposed sentence to life imprisonment be scored out. 19. Learned AGA, countering appellant's contentions, submitted that it was a day light incident which had occurred within the court premises and there was no reason for the prosecution to falsely implicate the appellants. Appellant ( A-4), was arrested at the spot along with weapon of assault and hence his participation into the incident is doubtless. Post mortem examination report is corroborative of oral testimonies lending credence to the prosecution version. Pleura of the deceased was cut and he died because of that injury soon after the incident and hence appellant Kailash ( A-4), is guilty of murder because inflicted injury was sufficient in the ordinary course of nature to cause death. It was concludingly argued that appellant's appeals lacks merits and deserves to be dismissed. 20. We have cogitated over the rival contentions and have vetted and summated the entire facts and circumstances of the case and the evidences on record. We propose to deal with appellants contentions in a seriatam and in that exercise, we first take up the opening question of applicability of section 34 I.P.C. on the facts and circumstances of the appeal. 21. We propose to deal with appellants contentions in a seriatam and in that exercise, we first take up the opening question of applicability of section 34 I.P.C. on the facts and circumstances of the appeal. 21. According to the prosecution version, commonality of intention was present amongst all the accused since prior to the incident and all the fact witnesses have testified it by deposing that all the three accused had instigated ( A-4) to annihilate the deceased and seek his revenge. How- ever the facts and evidences on record suggests otherwise. Firstly it is proved on the record that that all the three appellants A-1 to A-3, were bare handed during the entire incident and but for instigation, they have not indulged into the crime by participating with an active role. It is also evident that they had not assaulted the deceased nor the informant or any other person nor had facilitated causing of injuries to the deceased. There is no evidence worth in name that prior to the incident those accused knew that they will meet the deceased in the court campus. There is no evidence of any conspiracy as well. PW 1 has admitted in his depositions that he had no work in the court and he had come to the court only to meet sons of the deceased. He had also not divulged cause of his presence to the I.O. in his 161 Cr.P.C. statement as he had stated that "Neither the I.O. asked nor I told him why I had come in front of CJM court on that day". PW1 is a resident of village Bahai, which was at a distance of 10kms from the court premises. He further admitted that deceased was his maternal uncle ( Mamoo) and hence he is a related, interested and partisan witness. Since there is no evidence on record that all the accused shared knowledge that the informant and the deceased shall come to court at the fateful time and hence for them to share the common intention was not possible and, it seems, that because of absence of commonality of intentions that no other accused, A-1 to A-3, carried any weapon with them and they were all bare handed. It was because of this reason that none of three had assaulted the deceased or even made any endeavor to catch hold of him. It was because of this reason that none of three had assaulted the deceased or even made any endeavor to catch hold of him. At the worst their mere presence at the spot is not necessarily indicative of the possessing commonality of purpose without acting any further. Passive resilience of these accused including Joma ( A-3), during the incident does not inspire any confidence and compels us to take a contrary view than that of learned trial court as we are of the opinion that their case falls outside purview of section 34 I.P.C., as no common intention existed between the accused to commit the murder crime. 22. Above view is countenanced by another most significant aspect that in the dying declaration deceased had not uttered any word regarding any instigation. Since his version is unembellished, therefore we place heavy reliance on it. Since this declaration does not state instigation, we are of the view that instigation story developed by the prosecution is after thought and cooked up. But for ipse dixit, there is no other convincing evidence on record to associate A-1 to 3 with the crime and hold them guilty with the aid of section 34 I.P.C. In our view we are fortified with following apex court decisions:- 23. In Sripathi and Ors. v. State of Karnataka: AIR 2010 SC 249 it has been held by the apex court as under:- "8. Coming to the plea regarding the applicability of Sec. 34, IPC, we find that the evidence is not very specific as regards the role played by A.1, A.2 and A.3. It is the prosecution version that A.4 had the knife in his pocket which he suddenly brought out and stabbed the deceased. 9. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34 , be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar vs. State of Punjab ( AIR 1977 SC 109 ), the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. 10. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34 , when an accused is convicted under Section 302 read with Section 34 , in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. As a result of the application of principles enunciated in Section 34 , when an accused is convicted under Section 302 read with Section 34 , in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. vs. State of Andhra Pradesh ( AIR 1993 SC 1899 ) : ( 1993 AIR SCW 1843), Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused. 11. The conviction of the appellant Nos. 1, 2 and 3 by application of Sec. 34, IPC does not appear to be in order." 24. In Bengai Mandal alias Begai Mandal v. State of Bihar: AIR 2010 SC 686 it has been held by the apex court as under:- "14. Thus, the position with regard to Section 34 , IPC is crystal clear. The existence of common intention is a question of fact. Since intention is a state of mind, it is, therefore, very difficult, if not impossible, to get or procure direct proof of common intention. Therefore, courts, in most cases, have to infer the intention from the act( s) or conduct of the accused or other relevant circumstances of the case. However, an inference as to the common intention shall not be readily drawn; the criminal liability can arise only when such inference can be drawn with a certain degree of assurance." 25. In Balwantbhai B. Patel v. State of Gujarat and Anr: AIR 2010 SC 1158 it has been held by the apex court as under:- "4. We have heard the learned counsel for the parties. We find that there is no evidence to show that Gyasuddin Ansari had received any injury as his injury statement is not on record. The finding, therefore, of the High Court about the appellant's presence appears to be on shaky foundations. We have heard the learned counsel for the parties. We find that there is no evidence to show that Gyasuddin Ansari had received any injury as his injury statement is not on record. The finding, therefore, of the High Court about the appellant's presence appears to be on shaky foundations. We are also not unmindful of the fact that allegations of catching hold of an attack victim or of an exhortation are invariably made when the number of injuries on the injured party do not correlate to the number of accused or in the alternative in an attempt to rope in as many persons as possible from the other side. We also observe that the appellant has already undergone more than six years of the sentence. 5. For all these reasons, we find that the order of the High Court is not sustainable. We allow the appeal and acquit the appellant." 26. In the light of above decisions when we scrutinize the facts of the present appeal what transpires, from the perusal of the entire record is, that the incident had occurred all of sudden at the spur of moment without any premeditation or any pre-concert or without any common intention of all. From the depositions of witnesses sketched above, facts and circumstances on the record, it is difficult to conclude, positively and conclusively, without any ambiguity that all the accused shared common intention to commit murder of the deceased. There is lack of evidence in that respect. 27. The residue of the above discussion is that conviction of appellant Joma, ( A-3) under section 302/34 I.P.C. is unsustainable and cannot be affirmed, as prosecution had not been able to substantiate it's charge against the said appellant. 28. Turning towards the case of appellant Kailash ( A-4), we are of the opinion that urged contention of Sri Mishra, learned senior counsel, regarding offence committed by him, not transgressing beyond 304 ( I) I.P.C. has got much substance. Firstly, as has already been sketched herein above, incident had occurred all of sudden at the spur of moment, without any preconcert. Secondly, Kailash ( A-4), had not wielded knife in it's natural piercing manner. Firstly, as has already been sketched herein above, incident had occurred all of sudden at the spur of moment, without any preconcert. Secondly, Kailash ( A-4), had not wielded knife in it's natural piercing manner. Thirdly that, but for a single fatal injury rest of the two injuries sustained by the deceased were all simple in nature and out of those two injuries, one ( injury no.3) could not have been caused by a knife and hence could not be attributed to appellant ( A-4). Thus from critical vetting of entire circumstances, what can be said with certainty is that appellant ( A-4) did not possess requisite intention to commit murder but he certainly had the knowledge that his act will result in causing of grievous injury, which may result in death and hence he had the requisite knowledge and consequently his guilt will be within the fold of 304 part ( I) I.P.C. Act of ( A-4) cannot be aggrandized to such an extent as to bring his offence within the fold of section 302 I.P.C. In this conclusion, we rely upon following Apex Court decisions:- In Laxminath v. State of Chhattisgarh: AIR 2009 SC 1383 it has been held by the apex court as under:- "20. Considering the factual scenario and the facts that one arrow was shot the offence is covered by Section 304, Part I, IPC and not Section 302 , IPC. Though it cannot be laid down that whenever one arrow is shot Section 302 , IPC will not apply, on the facts of the present case it appears to be so. Therefore conviction is altered from Section 302 , IPC to Section 304, Part I, IPC. Custodial sentence of eight years would meet the ends of justice." In Ravindra Shalik Naik and Ors. v. State of Maharashtra.: AIR 2009 SC 1709 in somewhat similar circumstances, it has been held by the apex court that the guilt will be only under section 304 ( I) I.P.C. In Ramchandra Dhondiba Kaware v. State of Maharashtra: AIR 2009 SC 1835 it has been held by the apex court as under:- "It appears that the accused and the deceased were in inimical terms. Only one blow was given with the yoke in the night. PW-4 has categorically admitted that it was dark, but he identified the accused because he was known to him. Only one blow was given with the yoke in the night. PW-4 has categorically admitted that it was dark, but he identified the accused because he was known to him. Number of injuries is always not a determinative factor regarding applicability of Section 302 , IPC. The nature of the weapon, place where it was struck and several other relevant factors throw light on this aspect. Considering the background facts of the present case according to us the appropriate conviction would be under Section 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice." 29. From the above discussions, we conclude that crime of appellant Kailash ( A-4) does not fall outside the scope of section 304 ( I) I.P.C. and, therefore, his conviction u/s 302/34 I.P.C. is unsustainable. 30. Resultantly this appeal is allowed in part. Conviction and sentence of appellant Joma ( A-3), recorded in the impugned judgment and order, is hereby set aside and he is acquitted of the all the charges. He is on bail. He need not surrender. His personal and surety bonds are discharged and he is set at liberty. 31. Conviction of appellant Kailash ( A-4) u/s 302 I.P.C. is alter to one u/s 304 Part ( I) I.P.C. and his sentence of life imprisonment is also modified to 10 years RI for committing offence u/s 304 Part ( I) I.P.C. Appellant Kailash ( A-4) is on bail. His personal and surety bonds are cancelled and he is directed to be taken into custody and lodge in jail to serve out remaining part of his sentence imposed upon him herein above. 32. Let a copy of the judgment be certified to the trial court for it's intimation.