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2016 DIGILAW 106 (ALL)

Lalta Prasad Dube v. State of U. P.

2016-01-08

PRATYUSH KUMAR, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Surendra Vikram Singh Rathore, J. 1. Shri Nagendra Mohan, learned counsel for the appellants, and Ms. Ruhi Siddiqui, learned AGA for the State were heard at length. 2. Under challenge in the instant criminal appeal is the judgment and order dated 01.10.2005 passed by VII Additional Sessions Judge, Pratapgarh, in Sessions Trial No.461 of 1994 arising out of Case Crime No.174 of 1991, Police Station Fatanpur, District Pratapgarh, whereby appellant Rajesh Kumar @ Munna was convicted for the offence under Section 302 IPC and remaining appellants namely Lalta Prasad Dube, Ghanshyam Dube and Prem Shanker Dube were convicted for the offence under Section 302 read with Section 34 IPC and were sentenced to undergo imprisonment for life and also with fine of Rs.2000/- each with default stipulation of one year's' rigorous imprisonment. All the four appellants were further convicted for the offence under Section 323 read with Section 34 IPC and were sentenced to undergo rigorous imprisonment for a period of one year. Both the sentences were directed to run concurrently. 3. During pendency of the instant appeal, appellant no.1 Lalta Prasad Dube expired and the appeal in respect thereof was abated vide order dated 05.01.2016. 4. In brief, the case of the prosecution, as disclosed in the first information report, was that the complainant Harishchand Dube lodged a first information report at Police Station Fatanpur on 21.11.1991 at 1810 hours alleging therein that regarding flow of water of the tube well through a 'Nali' some dispute was pending between the complainant side and the appellants side and to resolve the said dispute, a Panchayat was called on 21.11.1991 which was attended by the village Pradhan and other persons of the village. After the said Panchayat when the village Pradhan and other persons went away and the complainant side after leaving the place of Panchayat reached in front of the house of Ratai then appellant Lalta Prasad Dube exhorted that "Maro Salon Ko" so that the dispute of holding Panchayat may settle forever. Thereafter, Lalta Prasad Dube, Ghanshyam and Prem Shanker Dube, who were armed with lathis, and Rajesh Kumar @ Munna, who was armed with knife, started beating the complainant side at about 03.45 PM. Thereafter, Lalta Prasad Dube, Ghanshyam and Prem Shanker Dube, who were armed with lathis, and Rajesh Kumar @ Munna, who was armed with knife, started beating the complainant side at about 03.45 PM. When the complainant side raised alarm then Uma Shanker Pradhan, Nanhku Kumhar and several other persons of the village reached there and seeing these persons, appellant Rajesh Kumar @ Munna gave a blow of knife on the back of Phool Chandra due to which he fell down and died on the spot. The complainant also hurled his lathi to save himself. In the meantime Lalta Prasad Dube exhorted to remove the dead body and thereafter the accused persons ran away from there hurling abuses to the complainant side. The complainant after taking the dead body of his brother Phool Chandra to his house with the help of villagers went to the police station and lodged the first information report of this case. The complainant has also received injuries. 5. After registration of the case, the investigation proceeded. Inquest proceedings were conducted and after completing necessary formalities, the dead body was sent for postmortem which was conducted at District Hospital Pratapgarh on 22.11.1991 at 03.00 PM. The duration was about ½ - 1 day and the following ante-mortem injuries were reported on the body of the deceased: (i) Incised wound 3 cm x 0.3 cm on right side of back 3 cm medial to superior spine of right scapula. (ii) Abrasion 1.5 cm x 1.0 cm on right side of front of chest 7.0 cm below left nipple. In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante-mortem injuries. 6. Complainant Harishchand was also medically examined on 21.11.1991 at 06.30 PM and the following injuries were reported by the doctor: (i) Lacerated wound size 5.0 cm x 0.5 cm x scalp deep on occipital area, slightly oblique, wound was bleeding, X-ray was advised. (ii) Contusion red in colour 5.0 cm x 2.0 cm x oblique over outer side of upper thigh. (iii) Contusion with laceration 3.0 cm x 2.0 cm x occipital area, red in colour. (iv) Complaint of pain all over the body. Injury nos. 1 and 2 were caused by hard and blunt object and injury no.3 was by friction. 7. (ii) Contusion red in colour 5.0 cm x 2.0 cm x oblique over outer side of upper thigh. (iii) Contusion with laceration 3.0 cm x 2.0 cm x occipital area, red in colour. (iv) Complaint of pain all over the body. Injury nos. 1 and 2 were caused by hard and blunt object and injury no.3 was by friction. 7. During investigation, the weaving threads of the cot on which the dead body was brought to the house of the complainant was taken into custody and its memo was prepared. On 22.11.1991, on a secret information, appellants Lalta Prasad Dube, Ghanshyam and Rajesh Kumar @ Munna were arrested by the police and on the pointing out of appellant Rajesh Kumar @ Munna, the weapon of offence i.e. knife was recovered at 1325 hours by the police and its memo was prepared. Blood stained earth as well as plain earth was also taken into custody and its memo was prepared. The place of occurrence was inspected and site plan was prepared. 8. After completing the investigation, charge sheet was filed against all the four named accused persons. 9. The case of the defence was that nothing could be finalized in the Panchayat. Thus, they started going back to their house. The complainant side, who were also behind them on the way to their house and reached near the house of Ratai, on the exhortation of Harishchand, accused persons started beating them due to which Ghanshyam Dube suffered fracture in his fingers and Rajesh Kumar @ Munna also sustained injuries. Sanjay caused injuries to Prem Shanker Dube which resulted into fracture of his head. In the meantime, Phool Chandra grappled Rajesh Kumar @ Munna and threw him on the ground and Krishna Chandra aimed a blow of knife on him which hit Phool Chandra and Rajesh Kumar @ Munna. Phool Chandra was armed with knife, Sanjay was armed with lathi and Harishchand was also armed with lathi. This incident was seen by several persons of the village. A cross NCR of this case was also lodged which was subsequently registered at Case Crime No.174-A of 1991 under Sections 324, 323 and 504 IPC and after investigation, charge sheet was filed against all three named accused persons. 10. This incident was seen by several persons of the village. A cross NCR of this case was also lodged which was subsequently registered at Case Crime No.174-A of 1991 under Sections 324, 323 and 504 IPC and after investigation, charge sheet was filed against all three named accused persons. 10. Appellant Ghanshyam Dube was medically examined on 21.11.1991 at 05.30 PM and following injury was found on his person: - (i) Contused swelling on left side extending up to left middle finger, red in colour, size 2.0 cm in diameter, X-ray was advised. Injury was reported to be caused by blunt object and duration was fresh. 11. Appellant Rajesh Kumar @ Munna was medically examined on the same day at 05.35 PM and following injuries were reported on his person: (i) Lacerated wound 4.0 cm x 5.0 cm x scalp deep over right eyebrow. (ii) Lacerated wound 2.0 cm x.05 cm x muscle deep on right eyebrow. (iii) Contusion 6.0 cm x 2.0 cm on left shoulder. (iv) Incised wound 1.0 cm x 0.25 cm cm x muscle deep on right knee. Injury nos.1, 2 and 3 were caused by blunt object and injury no.4 was caused by sharp edged weapon. Duration was fresh. 12. Appellant Prem Shanker Dube Dubey was also medically examined on 21.11.1991 at 05.05 PM and following injuries were reported on his person: (i) Contused swelling over left parito-occipital area, contused, red in colour, 2.0 cm in diameter, swelling 5.0 cm in diameter, X-ray was advised. (ii) Abrasion 1.0 cm in diameter on right shoulder. Injury no.1 was caused by blunt object and duration was fresh. The patient was in semiconscious condition. 13. In order to prove its case, the prosecution had examined PW-1 the complainant Harishchand, PW-2 Krishna Chandra - brother of the complainant (PW-1 and PW-2 are real brothers of the deceased), PW-3 Head Moharrir Ram Krishna, who has proved the Chik report and GD of this case as secondary evidence, PW-4 U.S. Dubey - the then Village Pradhan, who has not supported the cause of the prosecution and has been declared hostile, PW-5 Dr. A.C. Tripathi, who had conducted the postmortem on the body of the deceased Phool Chandra, PW-6 SI Deep Narain Ram - the Investigating Officer of this case, PW-7 Prablad Kumar Staff Nurse (Male), who has proved the medical examination report of Harishchand as secondary evidence because of the death of the doctor who had conducted the medical examination. 14. In defence, certified copies of the NCR, charge sheet, medical examination reports of the appellants and also the statements of two witnesses recorded in the cross case were filed. 15. After appreciating the evidence on record, learned trial court has convicted the appellants, as above. Hence the instant appeal. 16. Admittedly, cross case of this case has ended in acquittal and no appeal/revision has been filed challenging the said acquittal either by the State or by the complainant. 17. Submission of learned counsel for the appellants was that in this case three appellants had sustained injuries and there was no satisfactory explanation of the said injuries. The prosecution has made halfhearted efforts to explain the injuries of the accused persons but has palpably failed to explain such injuries. Three persons from the side of the appellants had received injuries. These injuries were not superficial. Two of the injured persons had sustained fracture and Rajesh Kumar @ Munna had sustained one incised wound. It is submitted that even otherwise the evidence of the prosecution was shaky and the same cannot be categorized as wholly reliable. According to the admitted case of the prosecution the village Pradhan was present in the Panchayat and the said Pradhan (PW-4) has not supported the case of the prosecution and has stated that it was a case of free fight and both the sides hurled stones on each other. So in these circumstances the only inference that could have been drawn was that the prosecution has suppressed true facts and has come up with a coloured version. So in these circumstances the only inference that could have been drawn was that the prosecution has suppressed true facts and has come up with a coloured version. It has further been submitted that even if the evidence of the village Pradhan is taken to be true then each of the accused shall be liable for his own act and it has also been argued that even if the case of the prosecution is taken to be true even then the offence has taken place on the spur of moment under sudden provocation and the nature of the injury as alleged to have been caused by appellant Rajesh Kumar @ Munna to the deceased was not of such nature that could result in the death of the deceased. It was an incised wound of 3.0 cm length with a depth of only 0.3 cm on the back of the deceased. No blow was repeated. So the offence committed by appellant Rajesh Kumar @ Munna would not travel beyond the purview of Section 304 IPC. 18. Learned AGA appearing for the State has submitted that the learned trial court has considered all these aspects of the matter and has rightly convicted the appellants. The judgment of the trial court is well reasoned and needs no interference. 19. In the instant case, date, time and place of occurrence is admitted to both the parties. As per the case of the prosecution, the incident of this case took place on 21.11.1991 at 03.45 PM and the report of the same was lodged at 1810 hours at police station Fatanpur which is at a distance of 12 Kilometers. From the side of the appellants a NCR was lodged and the same was lodged only after one hour of the incident at 1645 hours and medical examination of the appellants also took place before lodging the first information report of the instant case. Subsequently on the basis of the injury report the case was converted and ultimately charge sheet was filed against complainant Harishchand, Krishna Chandra and one Sanjay, who happens to be son of the complainant Harishchand. So there is no dispute regarding the date, time and place of occurrence. Injuries caused to three appellants namely Rajesh Kumar @ Munna, Prem Shanker Dube and Ghanshyam have also been admitted. So there is no dispute regarding the date, time and place of occurrence. Injuries caused to three appellants namely Rajesh Kumar @ Munna, Prem Shanker Dube and Ghanshyam have also been admitted. The prosecution has made an effort to explain the same and in the later part of the judgment we will consider whether explanation so furnished by the prosecution was reliable or not. 20. Admittedly the deceased had received only one incised wound on his back which was only 3.0 cm in length and its depth was only 0.3 cm. As per evidence of the doctor, hilum of the right lung was injured. No other injury was found on the person of the deceased. Admittedly the incident had taken place after the Panchayat which stood concluded at 03.45 PM without any decision and immediately thereafter while both the sides were coming back to their houses the incident is alleged to have taken place. The complainant had also received minor injuries. So the only point to be considered is whether the prosecution has come with clean hands and has given a correct version of the incident without suppressing the genesis of the case of the prosecution. Admittedly in this case both the parties had received injuries and where both parties have received injuries, there is an obligation on the prosecution to explain the injuries sustained by accused persons and failure to explain the same may give rise to some inference that may adversely affect the prosecution. On this point, reliance may be placed to the pronouncement of Hon'ble the Apex Court in the case of Mano Dutt v. State of U.P. reported in (2012) 4 SCC 79 wherein Hon'ble the Apex Court in paragraphs 38, 39 and 40 has considered the legal aspect on this point and has held as under: - "38. The question, raised before this Court for its consideration, is with respect to the effect of non-explanation of injuries sustained by the accused persons. In this regard, this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. 39. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail. 39. Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injuries on the person of the accused were also of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. 40. Where the evidence is clear, cogent and creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be a sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh & Ors. v. State of Bihar, [ (2000) 4 SCC 298 ], Ram Sunder Yadav & Ors. v. State of Bihar [ (1998) 7 SCC 365 , and Vijayee Singh v. State of U.P. [ (1990) 3 SCC 190 ]." 21. Reference on this point may also be made to the pronouncement of Hon'ble the Apex Court in the case of State of Karnataka v. Jinappa Payappa Kudachi and others reported in 1994 Supp. (1) SCC 178 wherein Hon'ble the Apex Court has held in paragraph 6 as under: - "6. The effect of non-explanation by the prosecution about the injuries on the accused persons depends on the facts and circumstances of each case. Normally if there is such non- explanation, it may at the most give scope to argue that the accused had the right of private defence or in general that the prosecution evidence should be rejected as they have not come out with the whole truth particularly regarding the genesis of the occurrence." 22. In view of the aforementioned legal position, we will have to first consider whether the prosecution witnesses have given reliable evidence and their evidence is wholly reliable or not. According to the admitted case of both the sides village Pradhan Uma Shanker Dube was also present at the time of incident. He has been examined in the instant case as PW-4. According to the admitted case of both the sides village Pradhan Uma Shanker Dube was also present at the time of incident. He has been examined in the instant case as PW-4. Though he has been declared hostile by the prosecution and has been cross examined by the public prosecutor but law is settled on the point that if a witness is declared hostile even then his evidence does not stand wiped out from the record and the same can be considered for appreciation of evidence. Reference may be made on this point to the pronouncement of Hon'ble the Apex Court in the case of Rohtash Kumar V. State of Haryana reported in (2013) 14 SCC 434 wherein Hon'ble the Apex Court has observed that the evidence of a hostile witness cannot be rejected in toto merely because the prosecution choose to treat him as hostile and cross examined him. This point has been considered in the aforementioned case in paragraph nos. 25, 26 and 27, which reads as as under: "25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. 26. In State of U.P. v. Ramesh Prasad Misra and Anr. (1996) 10 SCC 360 , this Court held, that evidence of a hostile witness would not be rejected in entirety, if the same has been given in favour of either the prosecution, or the accused, but is required to be subjected to careful scrutiny, and thereafter, that portion of the evidence which is consistent with the either case of the prosecution, or that of the defence, may be relied upon. (C. Muniappan and Ors. v. State of Tamil Nadu (2010) 9 SCC 567 ; Himanshu @ Chintu v. State (NCT of Delhi) (2011) 2 SCC 36 ; and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 ). 27. (C. Muniappan and Ors. v. State of Tamil Nadu (2010) 9 SCC 567 ; Himanshu @ Chintu v. State (NCT of Delhi) (2011) 2 SCC 36 ; and Ramesh Harijan v. State of U.P. (2012) 5 SCC 777 ). 27. Therefore, the law permits the court to take into consideration the deposition of a hostile witness, to the extent that the same is in consonance with the case of the prosecution, and is found to be reliable in careful judicial scrutiny." Similar view was expressed by Hon'ble the Apex Court in the case of Paulmeli and another Vs. State of Tamil Nadu through Inspector of Police reported in (2014) 13 SCC 90 and also in the case of Shyamal Ghosh Vs. State of West Bengal reported in (2012) 7 SCC 646 . 23. PW-4 Uma Shanker Dube, whose presence on the place of occurrence is admitted to both the parties, has stated that in the Panchayat no decision could be taken because both the parties entered into altercations. So they left the Panchayat and when they reached near Panchayat Ghar then they saw that both the parties were hurling stones on each other and also entered into Marpeet and in the said Marpeet, Phool Chandra died and Prem Shanker Dube has also received injuries. Village Pradhan was an independent witness. Both the sides admits his presence in the Panchayat and also at the time of the incident. So, his evidence becomes very important in the instant case. 24. PW-1 in his evidence has stated that Prem Shanker Dube received injuries because he collided with an Acacia (Babool) tree. He also stated that a Danda was lying there. He picked up the same and defended himself. He has admitted that no one made any effort to give any blow to him and Phool Chandra when they fell down. He has stated that none from his side had any knife. Admittedly, appellant Rajesh Kumar @ Munna had received an incised wound. The complainant has stated that Rajesh Kumar @ Munna gave a single blow of knife and the remaining persons caused him injuries with lathis. Prem Shanker Dube received injuries during the insident. PW-1 has admitted that in the cross case he, his brother Krishna Chandra and his son Sanjay were accused. The complainant has stated that Rajesh Kumar @ Munna gave a single blow of knife and the remaining persons caused him injuries with lathis. Prem Shanker Dube received injuries during the insident. PW-1 has admitted that in the cross case he, his brother Krishna Chandra and his son Sanjay were accused. He has also stated that Rajesh Kumar @ Munna and Ghanshyam have not received injuries during the incident and Prem Shankar received injuries due to collision with Acacia tree but he in his cross examination has stated that he also defended himself with Danda which hit Ghanshyam and he subsequently came to know that Rajesh Kumar @ Munna had also received injuries in the said incident. According to the evidence of PW-1, all the accused persons except Rajesh Kumar @ Munna were armed with lathis. According to the evidence of PW-1, after Panchayat the accused persons went with the Panchs and they had covered a distance of about 200-250 paces towards west and when the complainant side had moved about 100 paces from the place of Panchayat then exhortation was made by the accused persons. So according to the statement of PW-1 exhortation was made from a distance of more than 100 paces. So this distance was a considerably long distance and the complainant side was very much in a position to save themselves by running away but admittedly Marpeet had taken place between two sides. So it transpires from the evidence of PW-1 that instead of avoiding the incident they also went forward due to which this incident took place. It is nowhere the case of the prosecution that the appellants after exhortation chased them and came towards complainant side after covering a distance of 100 or 150 paces. This aspect of the case makes the evidence of PW-4 Uma Shanker Dube important which shows that stones were hurled from both the sides. PW-1 has stated that blow of knife was given first and thereafter all the remaining appellants caused injuries to him with lathis. This version is against the manner of incident as narrated in the first information report. According to the first information report lathi blows were given prior to the blow of knife by Rajesh Kumar @ Munna. 25. PW-1 has stated that blow of knife was given first and thereafter all the remaining appellants caused injuries to him with lathis. This version is against the manner of incident as narrated in the first information report. According to the first information report lathi blows were given prior to the blow of knife by Rajesh Kumar @ Munna. 25. PW-2 Krishna Chandra, who happens to be the real brother of the complainant and the deceased, has also stated that Harishchand had defended him with a Danda. On the exhortation of Lalta Prasad Dube, appellant Rajesh Kumar @ Munna gave a blow of knife and Harishchand was given blows with Danda. He has stated that they had moved only 4-6 paces from the place of Panchayat then exhortation was made. So this statement of the witness goes contrary to the evidence of PW-1 that he had covered a distance of about 100 paces from the place of Panchayat when the incident had taken place. PW-2 has given a very peculiar statement that Prem Shanker Dube was having a bundle of lathis, which was tied with a muffler. After exhortation, Lalta Prasad Dube opened bundle and took one lathi and it happened after the blow of knife was given to Phool Chandra. Prem Shanker Dube did not pick any lathi and instead he immediately ran away. This witness, however, could not tell as to what happened to other lathis which were being carried by Prem Shanker Dube. This witness has stated that he could not see whether Harishchand gave blows of lathi in his defence to any person. He has admitted that Rajesh Kumar @ Munna had received injuries during incident and has denied that Ghanshyam has received any injury. However, he has stated that he could not see as to who caused injuries to Rajesh Kumar @ Munna and has stated that entire Marpeet had taken place only in a friction of moment and in this short period both the sides received injuries. The Investigating Officer has prepared the site plan on the pointing out of the complainant but it is strange enough that the place where Prem Shanker Dube collided with Acacia tree and fell down was not pointed out by the complainant. The Investigating Officer has prepared the site plan on the pointing out of the complainant but it is strange enough that the place where Prem Shanker Dube collided with Acacia tree and fell down was not pointed out by the complainant. According to the evidence of PW-1 all three appellants except Rajesh Kumar @ Munna had caused injuries with lathi to him but according to the evidence of PW-2, it was only Lalta Prasad Dube who gave blows with lathi to Harishchand. So what transpires from the appreciation of evidence is that it was a case of free fight. Both the parties had entered into free fight and caused injuries to each other. 26. Law is settled on the point that in a case of free fight each and every accused is responsible for his own act. 27. Keeping in view the evidence of PW-2, lathi blows to Harishchand were given by Lalta Prasad Dube and he has not stated that any other accused had any lathi during the incident. Appellant Lalta Prasad Dube has expired. So the offence under Section 323 IPC even if it is taken to be proved then it is stand proved only against Lalta Prasad Dube, who has already expired. Other accused persons cannot be convicted for the offence under Section 323 IPC as it was a case of free fight. 28. Now remains the case of appellant Rajesh Kumar @ Munna. He has given only one blow with knife on the back of Phool Chandra. As stated earlier, it was an incised wound and the depth of the injury was only 0.3 CM. The doctor, who has conducted the postmortem, has stated that hilum of right lung was injured but he has not stated whether there was any cut injury in the lung or in any part of hilum. The depth of the injury was not so deep that it could have caused any internal injury in the hilum because hilum is situated much deeper in the body. A free fight took place immediately after the failure of the Panchayat. So it cannot be presumed that appellant Rajesh Kumar @ Munna had any intention to kill the deceased. Had he any intention to kill then it was open for him to repeat the blow after the deceased fell down but no such attempt was made to repeat the blow. So it cannot be presumed that appellant Rajesh Kumar @ Munna had any intention to kill the deceased. Had he any intention to kill then it was open for him to repeat the blow after the deceased fell down but no such attempt was made to repeat the blow. Thus, by the evidence, it cannot be said that appellant Rajesh Kumar @ Munna had any prior intention to kill the deceased. The nature of the injury alleged to have been caused by appellant Rajesh Kumar @ Munna was not of such a nature that it can be said that appellant Rajesh Kumar @ Munna had knowledge that the injury caused by him would in ordinary course of nature was so dangerous that would result into the death of the deceased in all probabilities. So the offence committed by the appellant Rajesh Kumar @ Munna would not travel beyond the purview of Section 304 Part I IPC. 29. Since we are of the view that it was a case of free fight, therefore, the other appellants namely Ghanshyam Dube and Prem Shanker Dube cannot be convicted for the murder of Phool Chandra. Thus, the appeal so far as it relates to appellants Ghanshyam Dubey and Prem Shanker Dube deserves to be allowed while the appeal of appellant Rajesh Kumar @ Munna deserves to be partly allowed. His conviction deserves to be altered under Section 304 Part I IPC. In our considered opinion, sentence of 10 years would be adequate to meet the ends of justice. 30. Accordingly, the appeal, so far as it relates to appellants Ghanshyam Dube and Prem Shanker Dube is hereby allowed. They are acquitted of the charges levelled against them. They are on bail. They be set at liberty. Their bail is cancelled and sureties discharged. The appeal, so far as it relates to appellant Rajesh Kumar @ Munna, is hereby partly allowed. Conviction of appellant Rajesh Kumar @ Munna is hereby modified from Section 302 IPC to Section 304 Part I IPC and his sentence is reduced from life imprisonment to a period of ten years. Appellant Rajesh is in custody. He shall serve out his sentence as modified by this Court. However, he is acquitted of the charges levelled against him under Section 323 IPC read with Section 34 IPC. Appellant Rajesh is in custody. He shall serve out his sentence as modified by this Court. However, he is acquitted of the charges levelled against him under Section 323 IPC read with Section 34 IPC. The period of detention already undergone by the appellant Rajesh Kumar @ Munna in the instant case shall be set off in accordance with the provisions of Section 428 Cr.P.C. 31. Office is directed to communicate this order forthwith to the court concerned and also to send back the lower court record to ensure compliance.