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2015 DIGILAW 3635 (ALL)

Suresh v. State of U. P.

2015-11-20

PRATYUSH KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2015
JUDGMENT Surendra Vikram Singh Rathore and Pratyush Kumar, JJ. - Heard Mr. Nagendra Mohan, learned counsel for the appellants, Ms. Madhulika Yadav, learned A.G.A. for the State and perused the lower court record. 2. During the pendency of appeal, appellant no.3 Satya Narain expired, therefore vide order dated 12.8.2014, the appeal so far as it relates to appellant no. 3 Satya Narain was abated. 3. Under challenge in this appeal is the judgment and order dated 8.6.1982 passed by IVth Additional Sessions Judge, Unnao in Sessions Trial No. 509 of 1981 arising out of Case Crime No. 179 of 1980, Police Station Maurawan, District Unnao whereby the accused appellants were convicted as under: - Accused Suresh was held guilty for the offence under Section 302 I.P.C. and was sentenced with imprisonment for life, remaining accused persons were convicted for the offence under Section 302 /34 I.P.C. and they were convicted for the said offence and were sentenced with imprisonment for life. 4. In the instant case, one Ram Swaroop, who happens to be the father of the complainant Ganga Prasad is alleged to have been murdered. The case of the prosecution, as narrated in the F.I.R., was that the incident has taken place on 14.7.1980. In the morning there was heavy rains because of such rain, the 'Mend' of the complainant's field was washed off and the rain water was flowing through the field of the complainant. So the complainant along with his father Ram Swaroop was making the 'mend' at about 9: 00 a.m. The 'bangla' of appellant no. 3-Satya Narain (since dead) was adjacent to the place where the complainant side was raising mend of their field. In between the said 'bangla' and the said field there was a 'nali'. Because of the rain, the said 'nali was also blocked. The complainant side wanted to clean the said 'nali' so that the water of 'nali' may not flow through their field. On this Satya Narain and his son Shri Ram said that they would not permit to clean the 'nali' and asked them not to raise the 'mend' of their field. On this, Ram Swaroop (deceased) said that it would not harm you if the 'nali' is cleaned. On this Satya Narain and his son Shri Ram said that they would not permit to clean the 'nali' and asked them not to raise the 'mend' of their field. On this, Ram Swaroop (deceased) said that it would not harm you if the 'nali' is cleaned. On the insistence of Satya Narain, altercation took place and Satya Narain and Shri Ram are alleged to have exhorted Suresh and on their exhortation, Suresh brought his gun and fired at Ram Swaroop, which hit on his abdomen. Receiving the gun shot injury, Ram Swaroop fell down. The complainant raised alarm. Hearing the alarm, several persons reached there and witnessed this incident. Thereafter the accused persons ran away extending threats to the complainant side. Deceased Ram Swaroop succumbed to the injuries on the spot. 5. On the basis of this F.I.R., the case was registered and investigation proceeded. The inquest proceedings were conducted and the dead body of Ram Swaroop (deceased) was sent for postmortem, which took place on 15.7.1980 at 3: 00 p.m. at District Hospital, Unnao and following ante mortem injureis were found on his body: - (i) Circular lacerated wound 1½" in diameter on left side chest lower part 3½" below left nipple. Margins inverted. Blackening present around the wound communicating, with 6 exit wound on left side back and middle part. Direction from forward to backward and laterally and wound of entry by fire arm. (ii) Seven circular (few) oval wounds 1 c.m. in diameter on left side back middle in an area of 4½" x 3½" margins averted. No blackening or charring present. Communicating with injury no. (i). They are exit wounds of injury no. (i). In the opinion of the doctor, cause of death was shock and hemorrhage as a result of ante mortem injuries. Duration of death was reported to be about one day. 6. After completing the investigation, charge sheet was filed. 7. The case of the defence was of their total denial and of their false implication. 8. In order to prove its case, the prosecution has examined PW-1 Ganga Prasad, complainant of this case, PW-2 Ram Naresh, the other witness of this case and he is the real brother of the deceased. PW-3 Constable Siya Ram, who has prepared chik report and G.D. of this case. PW-4 S.I. Dev Singh Sagar, the Investigating Officer of this case. PW-5 Dr. PW-3 Constable Siya Ram, who has prepared chik report and G.D. of this case. PW-4 S.I. Dev Singh Sagar, the Investigating Officer of this case. PW-5 Dr. S.M. Tripathi, who had conducted postmortem on the body of the deceased. 9. No evidence in defence was adduced on behalf of the appellants. 10. After evaluating the evidence on record, learned trial court has convicted the appellants as above, hence instant criminal appeal. 11. Submission of learned counsel for the appellants is that the only evidence against appellant Shri Ram was of exhortation. It is alleged that he along with his father Satya Narain, exhorted appellant Suresh. On their exhortation, appellant Suresh took out his gun and fired one shot on the deceased, which resulted into his death. It is further submitted that so far as appellant Shri Ram is concerned, the only evidence against him is of exhortation and the evidence of exhortation is generally weak type of evidence. However, regarding appellant Suresh, it is submitted that the trial court has convicted the appellants under Section 302 I.P.C. and the trial court has failed to appreciate the fact that the incident has taken place on the spur of moment and due to the dispute regarding 'nali', all of a sudden, this incident has taken place and it was not a premeditated and intentional offence. It was only under the heat of passion, appellant Suresh fired on the deceased and caused his death. So the offence committed by the appellant Suresh would not travel beyond the purview of Section 304 (I) I.P.C. 12. Ms. Madhulika Yadav, learned A.G.A. has submitted that the trial court, by a well reasoned and a detailed judgment, has considered all the aspects of the matter and has rightly convicted the appellants, hence no interference is called for in the instant appeal. 13. Learned counsel for the appellant has not challenged the conviction of appellant Suresh. The conviction of appellant Shri Ram has been challenged only on the ground that the only role assigned to him was that of exhortation. The said exhortation is alleged to have been given along with his father Satya Narain. So the exhortation that could be material for appellant Suresh would have been the exhortation of his father, who has already expired. The said exhortation is alleged to have been given along with his father Satya Narain. So the exhortation that could be material for appellant Suresh would have been the exhortation of his father, who has already expired. Appellant Suresh was about eight years elder to Shri Ram as per the age disclosed by them in their statement under Section 313 Cr.P.C. So exhortation of younger brother would not be material while his father Satya Narain is also alleged to have exhorted Suresh. 14. Learned A.G.A. has also admitted that there is absolutely no role assigned to Shri Ram except the role of exhortation, which was given along with his father Satya Narain. 15. The evidence of exhortation has been held to be a weak type of evidence. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Jainul Haque v. State of Bihar, reported in 1973 (10) ACC 422 (SC)= (1974) 3 SCC 543 , at page 545 and Hon'ble Apex Court has observed as under: "The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 of the Indian Penal Code. The High Court has found the evidence of the eyewitnesses to be unsatisfactory. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. It has also found that the eyewitness were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some person, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." 16. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Anand Mohan v. State of Bihar, 2012 (78) ACC 746 (SC)= (2012) 7 SCC 225 and Hon'ble Apex Court has observed in para 69 as under: "69. This Court has held in Jainul Haque v. State of Bihar (supra) that evidence of exhortation is in the very nature of things a weak piece of evidence and there is often quite a tendency to implicate some person in addition to the actual assailant by attributing to that person an exhortation to the assailant to assault the victim and unless the evidence in this respect is a clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant." 17. Therefore, keeping in view the fact that incident of this case pertains to the year 1980 and the only role assigned to appellant Shri Ram and Satya Narain (since dead) was of exhortation, which is a weak type of evidence. So we are of the view that appellant Shri Ram deserves to be extended benefit of doubt. Here it is pertinent to mention that Shri Ram has stated his age to be 17 years in his statement under Section 313 Cr.P.C., which was recorded after about two years of the occurrence. 18. Now the case of appellant Suresh is to be considered. He has been assigned the specific role of firing on the deceased with his gun causing the instantaneous death of Ram Swaroop. 18. Now the case of appellant Suresh is to be considered. He has been assigned the specific role of firing on the deceased with his gun causing the instantaneous death of Ram Swaroop. Learned counsel for the appellants has not challenged the conviction and has restricted his argument on the point that offence would fall under Section 304 Part I I.P.C. and not under Section 302 I.P.C. 19. Though the conviction of appellant Suresh has not been challenged but being he court of first appeal, we have gone through the entire evidence and also the impugned judgment. It is true that only two witnesses of fact have been examined by the prosecution and both are closely related. Law is settled on the point that the evidence of related witness cannot be discarded only on the ground of their relation with the deceased. But the Court has to scrutinise their evidence with extra care and caution. 20. It is settled position of law that a conviction can be recorded on the evidence of the related witnesses provided, the same appears to be wholly reliable. On this point, reference may be made to the pronouncement of Hon'ble the Apex Court to the case of Manga alias Man Singh v. State of Uttarakhand reported in 2013 (7) SCC 629 wherein Hon'ble Apex Court has held in paragraph no. 31 as under:- "31. With this, we come to the last of the questions as to whether there were any lacunae in the case of the prosecution based on the submissions of the Learned Counsel. Before dealing with the submissions, we wish to note that though PWs-1 to 4 were closely related to the deceased, they also suffered fire-arm injuries at the hands of the Appellants and the injuries sustained by them were duly supported by medical evidence, both documentary as well as oral, namely, through PWs-6, 7, 8 and 9. There was nothing pointed out in the evidence of the above witnesses, namely, PWs-1 to 4, except stating that since because they were closely related, their version about the occurrence was not true in order to discredit their version. Even before the Courts below the only argument made was that the said witnesses were related to the deceased and that they falsely implicated the Appellants. Even before the Courts below the only argument made was that the said witnesses were related to the deceased and that they falsely implicated the Appellants. In our considered opinion, merely based on such a flimsy submission as regards the credibility of those witnesses, the evidence of those injured eye witnesses cannot be discarded." 21. The query is as to why the relative of the deceased would spare the real assailant and would falsely implicate innocent persons. No prior enmity has been alleged by the prosecution. There is valid reason for the presence of the complainant and the witnesses because they were making 'mend' to choke the flow of rain water from their fields and also they were are cleaning the 'nali' so that waste water of the house of the appellants may flow through the 'nali' and may not spread in their field. Both the witnesses of fact have fully supported the case of the prosecution and nothing could be elicited in their cross-examination to lend support to the defence theory that they have been falsely implicated. The evidence of both the witnesses of fact stands fully corroborated by the medical evidence as the corresponding firearm would of entry was found on the body of the deceased which was the cause of his death. So we are of the considered view that prosecution was successful in proving its case beyond reasonable doubt against appellant Suresh. He fired at the deceased, which caused the instantaneous death of the deceased. 22. Now the sole point that remains to be considered is whether keeping in view the circumstances in which the offence has been committed, the offence would fall within the purview of Section 302 I.P.C. or it will be an offence under Section 304 Part I I.P.C. 23. Before proceeding further in the matter, we would like to consider the law on this point. In the case of Jhaptu Ram v. State of Himachal Pradesh reported in 2014 (85) ACC 300 (SC)= (2014) 12 SCC 410 Hon'ble the Apex Court in paragraph no. 7 has held as under: - "7. ............. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. 7 has held as under: - "7. ............. There is no iota of evidence to show that there was any prior intention of the Appellant to kill the deceased. As per the medical and ocular evidence, there was only gun shot fired by the Appellant which proved to be fatal for deceased. More so, the prosecution failed to marshal any evidence to show that the gun was in his hand when the deceased entered his house. In such peculiar facts and circumstances of the case, we agree with the submissions advanced by Shri Sreyas, learned Counsel for the Appellant." 24. In the case of State of Madhya Pradesh v. Shiv Shankar reported in (2014) 10 SCC 366 , the death was caused by a firearm and in the facts of that case, the appellant has been convicted under Section 302 I.P.C. while altering the finding of the High Court, Hon'ble the Apex Court has considered the law on this point in detail. Hon'ble the Apex Court was of the view that where the accused gets time to cool down his passion and thereafter commits an offence then the same would fall within the ambit of Section 302 I.P.C. Hon'ble the Apex Court in paragraph no. 12 of the said judgment has quoted paragraph no. 7 of its earlier judgment in the case of Sridhar Bhuyan v. State of Orissa reported in (2004) 11 SCC 395 , which reads as under: - "7. For bringing in operation of Exception 4 to Section 300 Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. 8. The fourth exception of Section 300 Indian Penal Code covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 Indian Penal Code is not defined in Indian Penal Code. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage" (Emphasis Supplied) 25. In the case of Chenda alias Chandaram v. State of Chhattisgarh reported in (2013) 12 SCC 110 , Hon'ble the Apex Court in paragraph no. 23 has held as under: - "23. Having regard to the parameters indicated in Gurmukh Singh case (2009) 15 SCC 635 , the offence seems to fall under the second part. There is no evidence of motive or previous enmity. The incident has taken place on the spur of the moment. There is no evidence regarding the intention behind the fatal consequence of the blow. There was only one blow. The accused is young. There was no premeditation. The evolution of the incident would show that it was in the midst of a sudden fight. There is no criminal background or adverse history of the Appellant. It was a trivial quarrel among the villagers on account of a simple issue. The fatal blow was in the course of a scuffle between two persons. There has been no other act of cruelty or unusual conduct on the part of the Appellant. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted." 26. The deceased was involved in the scuffle in the presence of his wife and he had actually been called upon by her to the spot so as to settle the score with the accused persons. The deceased had, in the scuffle, overpowered the first accused. That first accused was acquitted." 26. In the case of Budhi Singh v. State of Himachal Pradesh reported in (2012) 13 SCC 663, the facts were that the appellant gave two repeated blows on the head with a small axe, which resulted into the death of the deceased. In the circumstances in which the offence was committed, it was held that it was not premeditated and had taken place on the spur of moment and in this background, Hon'ble the Apex Court in paragraph no. 26 has held as under: - "26. Thus, in the facts of the present case, a sudden and grave provocation took place which would bring the offence within the ambit of exception 1 of Section 300 Indian Penal Code and hence Under Section 304 Part I Indian Penal Code as the accused had caused such bodily injury to the deceased which, to his knowledge, was likely to cause death as he had inflicted injuries on the head of the deceased. Having held the accused guilty of an offence Under Section 304 Part I Indian Penal Code, we award the sentence of 10 years rigorous imprisonment and to a fine of Rs. 5,000/- in default thereto to undergo further imprisonment of six months." 27. In the case of Sudhakar v. State of Maharashtra reported in (2012) 9 SCC 725 , the case was of giving a single blow of knife without premeditation and Hon'ble the Apex Court has observed that the offence would fall under Section 304 Part I Indian Penal Code. 28. In the case of Rampal Singh v. State of Uttar Pradesh reported in 2012 (79) ACC 37 (SC)= (2012) 8 SCC 289 , Hon'ble the Apex Court has considered the legal aspect as to when culpable homicide would amount to murder and when it would not amount to murder. Hon'ble the Apex Court has held in paragraph no. 22 as under: - "22. Hon'ble the Apex Court has held in paragraph no. 22 as under: - "22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed." 29. Keeping in view aforementioned legal position, the facts and circumstances of the instant case were considered by us. It is clear that there was no prior intention of the accused persons to cause the death of Ram Swaroop. They came at the place of occurrence bare handed and it was only after the altercation between the appellants and deceased, appellant Suresh went into his house, brought the gun and fired at the deceased. No second fire was repeated nor any effort was made to repeat the fire. No undue advantage of such situation was taken. There is no evidence that appellant Suresh was hardened criminal. This unfortunate incident took place on a trivial issue. Offence was not committed in any brutal or cruel manner. 30. Keeping in view the circumstances, which resulted into this unfortunate incident, it is clear that appellants side assembled there without any prior intention to commit any offence. It was only because of some dispute regarding the cleaning of 'nali' that resulted into this incident and appellant Suresh under sudden provocation fired at the deceased. No undue advantage appears to have been taken of such sudden provocation. No previous enmity is alleged between the two parties. 31. Now we would like to consider other case laws wherein Hon'ble the Apex Court in almost similar circumstances, has observed that the case would fall under Section 304 Part I I.P.C. and not under Section 302 I.P.C. and also the sentence that was found appropriate by Hon'ble Apex Court. 32. No previous enmity is alleged between the two parties. 31. Now we would like to consider other case laws wherein Hon'ble the Apex Court in almost similar circumstances, has observed that the case would fall under Section 304 Part I I.P.C. and not under Section 302 I.P.C. and also the sentence that was found appropriate by Hon'ble Apex Court. 32. Reference on this point may be made to the pronouncement of Hon'ble the Apex Court in the case of Budhi Singh v. State of Himachal Pradesh reported in 2013 Crl.L.J. 962. In the facts of that case, Hon'ble the Apex Court has considered the distinction between culpable homicide and murder and has observed in paragraph no. 13 as under: "13. The doctrine of sudden and grave provocation is incapable of rigid construction leading to or stating any principle of universal application. This will always have to depend on the facts of a given case. While applying this principle, the primary obligation of the Court is to examine from the point of view of a person of reasonable prudence if there was such grave and sudden provocation so as to reasonably conclude that it was possible to commit the offence of culpable homicide, and as per the facts, was not a culpable homicide amounting to murder. An offence resulting from grave and sudden provocation would normally mean that a person placed in such circumstances could lose self-control but only temporarily and that too, in proximity to the time of provocation. The provocation could be an act or series of acts done by the deceased to the accused resulting in inflicting of injury." In the facts of that case appellant Budhi Singh hearing the noise came out with a tobru (small axe) in his hand and gave blows on the skull of deceased due to which he succumbed to the injuries. In that fact-situation Hon'ble the Apex Court converted the conviction of appellant Budhi Singh under Section 304 Part I I.P.C. and awarded a sentence of ten years rigorous imprisonment with a fine of Rs. 5,000/-. 33. In the case of Jhaptu Ram v. State of Himachal Pradesh (supra) the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun shot injury, he fell down and died. 5,000/-. 33. In the case of Jhaptu Ram v. State of Himachal Pradesh (supra) the facts were that an altercation took place between the appellant and his son. The accused fired at the deceased. Receiving gun shot injury, he fell down and died. In this background, Hon'ble the Apex Court converted the conviction of the appellant under Section 304 Part I I.P.C. and awarded sentence of ten years rigorous imprisonment and also with a fine of Rs. 5,000/-. 34. In the case of Rampal Singh (supra) the facts of that case were that there was no previous enmity between the two parties. The dispute between them was regarding certain construction made by the deceased on his land to prevent garbage from being thrown at his open land. Heated exchange of words took place between two sides. In the state of anger accused brought his rifle from his house went on the roof of a nearby house and fired with his rifle, which resulted into the death. In that facts circumstances, Hon'ble the Apex Court held that offence would fall under Section 304 Part I I.P.C. and a sentence of ten years rigorous imprisonment with fine of Rs. 10,000/- was awarded. 35. Keeping in view the aforementioned legal position, we are of the considered view that the offence committed by appellant Suresh would fall under Section 304 Part I I.P.C. and not under Section 302 I.P.C. Therefore, in our considered opinion, a sentence of ten years rigorous imprisonment with a fine of Rs. 5,000/- would be adequate sentence. So far as appellant Shri Ram is concerned, he deserves to be extended benefit of doubt. Accordingly, appeal so far as it relates to appellant Shri Ram deserves to be allowed. 36. Thus, in view of the discussion made above, appeal of appellant Shri Ram is hereby allowed. He is acquitted of the charge levelled against him. He be set at liberty. He is on bail. He need not to surrender. His bail is cancelled and sureties discharged. 37. The appeal of appellant Suresh is hereby partly allowed. The conviction of appellant Suresh under Section 302 I.P.C. is hereby modified under Section 304 Part I I.P.C. and sentence of imprisonment for life is hereby modified with rigorous imprisonment for a period of ten years and also with fine of Rs. 5,000/- with default stipulation of two months' additional imprisonment. The appeal of appellant Suresh is hereby partly allowed. The conviction of appellant Suresh under Section 302 I.P.C. is hereby modified under Section 304 Part I I.P.C. and sentence of imprisonment for life is hereby modified with rigorous imprisonment for a period of ten years and also with fine of Rs. 5,000/- with default stipulation of two months' additional imprisonment. Appellant Suresh is on bail. His bail is cancelled. He shall be taken into custody forthwith to serve out his sentence. The period already undergone by him in the instant case shall be set off in accordance with the provisions of Section 428 Cr.P.C. 38. Office is directed to certify this order to the court concerned forthwith to ensure compliance and also to send back the lower court record. Order Accordingly.