Rajasthan High Court - Jaipur
Gurudev Singh And Ors. vs State Of Rajasthan on 4 March, 2002
Equivalent citations: 2003CRILJ552, RLW2003(1)RAJ146, 2002(2)WLC710
JUDGMENT Sharma, J.
1. These three appeals, one by appellant Gurdev Singh in representative capacity, another by Sajjan Singh and Mangi @ Man Singh through, Superintendent, District Jail Alwar and yet another by appellant Mangi @ Man Singh in representative capacity arise out of the judgment and order dated 28.4.2000 passed by the Additional Sessions Judge, Kishangarh- bas, district-Alwar. Since all these appeals arise out of one and the same judgment dated 28.4.2000 in same Sessions Case No. 56/88, they are being disposed of by this common judgment.
2. Succintly stated the facts of the prosecution case are that on 13.3.1990 at 6.30 AM, PW-2 Nahar Singh lodged a report Ex.P2 at Police Station, Tijara with regard to an incident happened at 8 PM on 12.3.98 a day prior to the lodging of the report. As per the report, PW-2 Nahar Singh and Jai Singh Jat had gone to village Sahabad for purchasing buffalow on 12.3.98 at 8 PM. The purchase was to be made by Jai Singh. Both reached the house of Harbansh Raisikh, where Gurdev Singh, Sajjan Singh and Mangi @ Man Singh were present and when they talked to Gurudev Singh, he demanded Rs. 7000/- as sale price of the buffalow. Ultimately, the transaction settled at Rs. 5000/- and on making demand for payment for money, when Jai Singh told that he will make the payment, some altercation took place and all the three (appellants) started beating Jai Singh and as a result thereof, the complainant and Jai Singh started running. However, the accused chased them, made Jai Singh to fell and Gurudev Singh first hit stone on his head. Thereafter, Sajjan Singh picked the same stone and hit Jai Singh. Accused Mangi also hit stone and leg while Jai Singh was lying on the ground. The complainant having felt endanger to his life, ran away and Jai Singh died on the spot. The complainant some how reached the village and informed the father of Jai Singh.
3. On the basis of above report, police registered a case for offence under Section 302/34 IPC against the accused appellants vide FIR, Ex. P3 and proceeded with investigation.
4. During investigation, police rushed to the place of occurrence, prepared site plan Ex.P4, seized the shirt of deceased Jai Singh vide memo Ex.P7, seized blood smeared and plain soil vide memo Ex.P8 and a pair of shoes vide memo Ex.P9. The police got conducted post mortem on the dead body of deceased and collected the post mortem report Ex.P.1. PW1 Dr. Rajiv Mittal, who concluded autopsy found crushed injury to half of right side of skull and brain partly coming out. In his opinion the cause of death was shock due to crush injury to brain.
5. In the process of investigation, the police arrested accused Sajjan Singh, Mangi @ Man Singh and Gurudeo Singh vide arrest memos Ex.P10, P11 and P14, respectively and seized shirt of accused Sajjan Singh vide memo Ex.P.12. Pursuant to the information, Ex.P19 furnished by accused Sajjan Singh, the police recovered stone, which was used in the commission of offence, vide memo Ex.P.16 and also prepared site plan, Ex.P.17 of the place of recovery. Accused Gurudeo Singh also furnished information, Ex.P.20 about the recovery of a Sweater and Safi and pursuant to this information, police recovered a Sweater and a 'safi' vide recovery memo Ex.P.15.
6. The sealed packets of blood smeared soil, control soil, Bu- shirts and stone were sent to the Forensic Science laboratory for chemical examination. Ex.P 22 is the report of FSL, which shows that blood smeared soil (marked A), Bu-shirt of Jai Singh (marked D) and stone (marked E) were found to be stained with human blood of same group-'A'.
7. On completion of investigation, police submitted a charge sheet against the appellants in the court of Judicial Magistrate, Tijara, who is turn committed the case to the court of Sessions.
8. The case came to be tried by the learned Additional Sessions Judge N0.2, Kishangarh-bas, district Alwar. The learned Additional Sessions Judge after hearing arguments of both the parties, framed charge under Sec. 302/34 I.P.C. against the appellants. The appellants denied the charge and claimed trial.
9. The prosecution, to prove its case, examined as many as 11 witnesses and exhibited some documents. After the prosecution evidence was over, the accused appellants were examined under Sec. 313 Cr.P.C. The accused did not examine any witness in defence.
10. At the conclusion of trial, the learned trial court having found the prosecution case established beyond doubt to the extent that the accused appellants caused death of deceased Jai Singh while beating him by stone, held them guilty for offence under Sections 299 or 299 read with Sec. 34 IPC and accordingly convicted the accused appellants under Section 304 Part-11 IPC and sentenced each of them to undergo rigorous imprisonment for 10 years with a fine of Rs. 10000/- each, in default thereof, each of the appellant was to further undergo imprisonment for two years. The trial court while granting benefit of Sec. 428 Cr.P.C. also ordered that out of the amount of fine imposed on the appellants, a sum of Rs. 25,000/- shall be paid to Tota Ram father of deceased Jai Singh, as a measure of compensation.
11. Feeling aggrieved by the judgment of conviction and sentence, the appellants have preferred these appeals.
12. I have heard learned counsel for the accused appellants and learned Public Prosecutor and carefully gone through the judgment under appeal and the record of the case.
13. The first ground of challenge and criticism to finding of guilt against the appellants arrived at by the trial court, urged by the learned counsel for the appellants is that it has relied upon the solitary evidence of PW-2 Nahar Singh, the alleged eye witness of the occurrence. Learned counsel have vehemently argued that statement of PW-2 Nahar Singh is highly improbable as would be evident from his conduct that he escaped from the place of incident without there bing any resistance on his part to make little efforts to save deceased Jai Singh while he was being hit by the appellants. As regards conduct of this witness, it has been pointedly argued that not only this witness left Jai Singh at the mercy of God and ran away from the scene of occurrence, but he waited till morning and did not inform the police about the incident. It is contended that deceased Jai Singh had accompanied the witness to village Sahabad and if some thing happened in the course of transaction of purchase of a she buffalow for any reason, the witness Nahar Singh must have come to rescue to save the life of Jai Singh. Instead coming to his rescue, the witness left the place and despite knowing it well that Jain Singh, who is none other but his own nephew, died on the spot, he took this incident in a routine manner and did not inform the police till next morning.
For these reasons, according to the learned counsel, the evidence of PW-2 Nahar Singh deserves to be discarded.
14. On the other hand, learned Public Prosecutor has contended that PW-2 Nahar Singh has described true version of the incident. The deceased was hit by the accused appellants by a heavy stone. The accused were three in number and there was none other than this witness. He was helpless and had no option but to escape from the scene. According to the learned Public Prosecutor, had this witness come to rescue, he would have met the same fate as that of deceased. There is no reason worth the name for concoction of false implication of the appellants at the instance of PW 2 Nahar Singh. He contended that the learned trial court has rightly placed reliance on the testimony of this natural witnesses while holding the appellants guilty.
15. 1 have considered the rival submissions. Having carefully scrutinized the evidence of PW-2 Nahar Singh, It appears to me that he is a truthful witness, worthy of credence and that his testimony cannot be discarded on the ground of his conduct that he left his nephew while he was being hit by the accused and ran away from the scene of occurrence. Similarly, his testimony also cannot be rejected for the reason that he reacted in an unusual manner that he observed silence and instead coming to rescue of his own nephew while he was being hit by the accused appellants, ran away from the scene.
16. It is generally noticed that in criminal cases, the witnesses react differently under different situations. Some observe silence, some start wailing, while some run away from the scene of occurrence. On the contrary there are some who may come forward with courage, conviction and belief that wrong should be remedied. 1 find support in my view by the following observations of the Apex Court in Leela Ram v. State of Haryana (1) :
"The Court shall have to bear in mind that different witnesses react differently under different situations ; where some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern in unproductive and a pedantic exercise."
17. It is next contended that there is inordinate delay in loding the FIR. According to the learned counsel, the incident took place on 12.3.1998 at 8 PM, whereas the report of the incident was lodged on the next day at 6.30 AM. This delay of 10 hours in loding the FIR, which remains unexplained, creates serious doubt on the genesis of the prosecution case and that possibility of false implication of the appellants after due deliberations cannot be ruled out.
18. Before dealing with the above argument, it must be noticed that in most of the criminal cases, it is a recurring feature that there would be delay in furnishing the first information to the police. It is also well settled that law has not fixed any time for loding the FIR and, therefore, it can be said that delayed FIR is not illegal. The delay in informing the police of the incident or loding the FIR is bound to occur for variety of reasons, depending upon the surrounding circumstances existing at the time of commission of offence. Thus it can be said that the entire prosecution case should not be thrown merely on the ground of delayed FIR.
19. It also need be observed that lodging the FIR immediately after the offence is committed is the ideal because prompt lodging of FIR would give the prosecution a twin advantages. Firstly, the investigating agency may proceed with investigation without any time lapse and secondly, that promot FIR rules out the opportunity for any concoction of a false version. Recently, their lordships of the Supreme Court while dealing with the effect of delayed FIRs and the FIRs lodged promptly, immediately after the offence is committed, in Ravindra Kumar and Anr. v. State of Punjab (2), have observed as under :
"To attack on the prosecution case on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police, it has to be remembered that law has not fixed any time for lodging the FIR. Hence delayed FIR is not illegal of course, a prompt and immediate loding of the FIR is the ideal as that would give the prosecution a twin advantage, First is, that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Bearing these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the geneuiness of the version incorporated therein."
20. Keeping in view the law laid down by the Apex Court, I shall now consider whether, in the present case, there was any delay in lodging the FIR. The incident took place in the night at about 8 PM on 12.3.1998 and the matter was reported to the police at 6.30 AM on 13.3.1998. PW.2 Nahar Singh, the complainant, uncle of the deceased has stated in his statement that Jai Singh died on the spot and he immediately rushed to his village and informed the father of the deceased about the incident. He reached the village at 10-10.30 PM and informed PW-7 Tota Ram, father of deceased. Since it was late in the night, he left for the police station early morning of the next day to lodge the report and lodged the report on the very next day at 6.30 AM. It may also be noted that the police station where FIR was lodged, is situated at a distance of 6 Kl. mtrs from the place of incident. PW-7 Tota Ram has also categorically deposed that PW-2 Nahar Singh informed him of the incident at about 10-11 PM. Thus, the evidence of above two witnesses and the distance of about 6 Kms. between two places leads this court to conclude that there was no delay in loding the FIR, but on the contrary, the FIR was lodged promptly without any time lapse. If at all there was delay of few hours, the same also stands satisfactorily explained.
21. The learned counsel for the appellants next contended that the prosecution has failed to examine independent witnesses of the locality despite the fact that the place where the incident took place was a densely populated area and non-examination of independent witnesses has caused serious prejudice to the accused appellants. According to the learned counsel, the conviction based on the solitary evidence of PW-2 Nahar Singh is not sustainable in the eye of law.
22. It cannot be denied that the place where the incident took place was densely populated area and that PW-2 Nahar Singh and PW-4 Dev Bahadur, Investigating Officer have admitted this fact. Nahar Singh has categorically deposed that none from the locality came out at the place and at the time, the incident happened. Similarly, Dev Bahadur has deposed that during investigation the persons residing near the place of incident disclosed that they did not see the incident as on that day it was Holy festival. The incident occurred at about 9 PM and there was none to witness the incident. Thus, from the statements of these two witnesses, it becomes clear that no one in the locality was available to witness the incident and, therefore, it was not at all possible for the investigation agency to procure independent witnesses.
23. As per the prosecution case, the cause of death of deceased was the fatal injury on his head. The post mortem report shows that there was only one injury viz., crush injury to half of right side of skull and the fracture of right skull bones and the doctor who conducted autopsy has opined that the brain. There are three appellants in the case and as per the prosecution story, all of them inflicted injuries to deceased by a single stone, recovered on the information and at the instance of accused Sajjan Singh. The trial court, considering the evidence and material on record, held all the three appellants guilty of having committed offence under Section 304 Part-II with the aid of Sec. 34 IPC and accordingly convicted and sentenced them as stated hereinabove. Now the question that emerges for consideration of this court is, as to whether the conviction of the accused appellants under Section 304 Part-11 read with Section 34 IPC is sustainable or not?
24. The undisputed fact is that there was single injury on the head of the deceased, which proved fatal and caused death of the deceased. The doctor, who conducted autopsy on the dead body has opined that crush injury to brain was sufficient in the ordinary course of nature to cause death. Likewise, it is also an admitted fact that the weapon used by the appellants in the commission of offence was a stone weighing about 6 kgs. Therefore, the question that emerges for consideration is as to which of the appellants is responsible for causing fatal injury, resulting into death of the deceased do?
25. To decide the controvery, it would be appropriate to deal with the prosecution evidence, documentary as well as oral.
26. There cannot be any dispute that PW-2 Nahar Singh, uncle of the deceased is the solitary eye witness. This witness has stated that accused Gurdeo Singh inflicted injury on the head of Jai Singh by a stone weighing about 7-8 Kgs. Thereafter accused Sajjan Singh inflicted injury on the head of Jai Singh at the same place by the same stone. PW-1 Dr. Rajeev Mittal who conducted autopsy on the dead body of Jai Singh, noticed crushed injury to half of right side of skull, brain partly come out". As stated above, he opined that cause of death was shock due to crush injury to brain, He further opined that the above said injury was sufficient in the ordinary course of nature to cause death. He opined that the aforesaid injury may be the impact of one hit.
27. PW-10 Rajesh Bisnoi, SHO, on the basis of information Ex.P.19 of accused appellant Sajjan Singh recovered one stone at his instance vide memo Ex.P.16 and prepared site plan, Ex.P.17 of the place of recovery. He also recovered one Sweater and a Safi (towel) belonging to the deceased on the information, Ex.P.20 of accused Gurdeo Singh, vide recovery memo Ex.P.15.
28. PW-7 Tota Ram, father of deceased handed over to PW-4 Dev Bahadur Singh a shirt which the deceased was wearing at the time of incident. PW-4 Dev Bahadur Singh also took in possession blood smeared soil from the place of incident vide memo Ex.P.8. The recovered articles were sent for chemical examination. The report of Chemical Analyser, Ex.P.22 shows that blood stains of human origin of group 'A' was found on Bush-shirt of deceased, blood smeared soil and the stone.
29. From the evidence discussed above, it stands proved that accused appellants Sajjan Singh and Gurdeo Singh both inflicted injury by stone on the head of Jai Singh, which proved fatal and resulted into death of deceased Jai Singh. Having established that appellants Sajjan Singh and Gurdeo Singh both were jointly responsible for causing fatal injury, it has now to be seen as to what offence is made out against these two appellants.
30. Having regard to the totality of the circumstances viz. (i) there was only one injury (ii) weapon used in the commission of offence was a stone, which was not carried by the appellants in advance (iii) there was some altercation between the deceased and the appellant and (iv) the incident erupted out of a trivial matter of payment of money in consideration of sale and purchase of a buffalo (v) the accused appellants Sajjan Singh and Gurdeo Singh gave blow with a heavy stone on the head of deceased Jai Singh with sufficient force resulting into crush injury to half of right side of skull and brain, and the established facts that the accused appellants Sajjan Singh and Gurdeo Singh followed Jai Singh after altercation between them to the house of Harbhajan Singh and caught hold of him in the way and inflicted injury on the head of Jai Singh by hitting the same stone by turn, it must be concluded that these two appellants had the knowledge that their act was likely to cause death of Jai Singh.
31. Having established that appellants Sajjan Singh and Gurdeo Singh had the knowledge that their act was likely to cause death of deceased, it has now to be considered whether conviction of these two appellants under Section 304 Part-11 read with Section 34 IPC is sustainable?
32. Learned counsel for the appellant has argued that it is not established from the prosecution evidence that which of the two appellants, namely Sajjan Singh and Gurdeo Singh was responsible for causing fatal injury on the head of deceased. It is contended that the incident occurred on account of some petty matter and the injury on the head of deceased was caused by a stone and, therefore, it cannot at all be said that both the appellants had common intention inflicting injury on the head of the deceased was to cause his death. According to the learned counsel, their intention, at the most could be to give severe beating, On this bedrock, it is contended with vehemence that none of the accused can be held guilty under Section 304 Part 11 with the aid of Section 34 IPC. To strengthen the argument, reliance is place on Mst. Chimo and others v. State of Rajasthan & Sonia and Ors. v. State of Rajasthan (3), Shri Narain v. State of Rajasthan (4) and Shri Kishan and others v. State of U.P. (5).
33. In Mst. Chimo and Ors. v. The State of Rajasthan (supra), a Division Bench of this Court have held as under :
"...There is force in the contention of the counsel for the appellants. The accused and the injured are relatives. Quite an insignificant and petty matter has caused the present incident. The injuries of Bhanwarlal and Dularam have all been caused by blunt weapon. The common intention of the accused in inflicting the injuries to Bhanwar Lal and Dalaram was not to cause their death but to give a severe beating first to Dalaram and subsequently to Bhanwarlal when he intervened. It is not clear from the evidence who out of the three accused appellants caused the fatal injury on the head of deceased Bhanwarlal. None of the accused can, therefore, be held guilty for the offence under Section 302 or 307 read with Section 34 IPC. The accused can only be convicted for the offence under Section 325 read with Section 34 IPC."
34. In Narain v. State of Rajasthan (supra), two accused inflicted one blow each on the head of the deceased and the doctor found both the injuries grevious in nature and the injuries were sufficient in the ordinary course of nature to cause death. Since the doctor did not explain whether these injuries were individually sufficient in the ordinary course of nature to cause death, this court held that there is no alternative but to alter the conviction of the accused to Section 325 IPC.
35. Again in Shri Kishan and others v. State of U.P. (supra), the occurrence was the off-shoot of a trifling incident in the nature of a scuffle between two urchins. In the incident two persons sustained injuries and one of them died. There were four accused, who belaboured Seru and Sadaphal by lathies. Five injuries including one head injury on the head of deceased were noticed. The head injury proved fatal. The prosecution evidence did not indicate as to which one of the appellants inflicted the fatal blow on the head of deceased. In these circumstances the Apex Court altered the conviction of each of the accused appellants from under Section 302 read with Sec. 34 IPC to that under Sec. read with Section 34 IPC by affirming the finding of the High Court that the common intention of the appellants was to give a severe beating to Seru and Sadpal.
36. Having considered the case laws, referred to above, I am of the considered view that the facts of these three cases are entirely different from that of the facts involved in the case in hand and therefore, the authorities cited by the counsel for the appellants is of no assistance to the case of the appellants.
37. In the earlier part of the judgment, having considered the totality of the circumstances, it has been held that appellants Sajjan Singh and Gurdeo Singh had the knowledge that their act of hitting on the head of deceased by a heavy stone was likely to cause death and that both the appellants were jointly responsible for causing fatal injury. However, from the discussion made above, if it is viewed from another angle, it can also be gathered that the common intention of the two appellants was to give a severe beating to Jain Singh, but at the same time, it can be said that they possessed knowledge that their criminal act above in furtherence of their common intention was likely to cause death of Jai Singh. Keeping in view these two aspects, it has to be seen whether they can be convicted under Sec. 304 Part II with the aid of Section 34 IPC.
38. Section 34 IPC provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons, is liable for that act in the same manner as if it were done by him alone.
39. It may be reiterated that from the statement of Nahar Singh, PW-2 it is proved that after some altercation on a very trifle matter at the house of Harbansh Raisikh, both the appellants chased Jai Singh and appeared together at the scene and over throwing the victim, hit him. Therefore, the requirement of Section 34 IPC as to the prior concert or prior meeting of minds of the appellants before the criminal act is perpetrated, is completely satisfied. Even if the common intention of both the appellants is taken to be the severe beating to Jai Singh, still they can legally be held guilty for offence under Section 304 Part-II with the aid of Section 34 IPC because, in the circumstances narrated hereinabove, each of the appellant possessed the knowledge? that death of Jai Singh was likely as a result of their beating. I am fortified in my view by a decision of the Apex Court in Afrahim Sheikh v. State of West Bengal (6), wherein their lordships have observed as under:
The question is whether the second part of Section 304 can be made applicable. The second part no doubt speaks of knowledge and docs not refer to intention which has been segregated in the first part. But knowledge is the knowledge of the likelihood of death. Can it be said that when three or four persons start beating a man with heavy lathis, each hitting his blow with the common intention of severely beating him and each possessing the knowledge that death was likely result of the beating that the requirements of Section 304 Part II are not satisfied in the case of each of them. If it could be said that knowledge of this type was possible in the case of each one of the appellants, there is no reason why Section 304, Part II cannot be read with Section 34. The common intention is with regard to the criminal act, i.e. the act of beating. If the result of the beating is the death of the victim and if each of the assailants possesses the knowledge that death is the likely consequence of the criminal act, i.e. beating, there is no reason why Section 34 or Section 35 should not be read with the second part of Section 304 to make each liable individually."
40. The only question remains to be decided is as to what offence is made out against appellant Mangi @ Man Singh.
41. The trial court has recorded a finding that after infliction of injury on the head of deceased by accused appellants Gurdeo Singh and Sajjan Singh, accused appellant Mangi @ Man Singh also inflicted injury on the mounth of deceased by the same stone, by which Gurdeo Singh and Sajjan Singh had inflicted injury. Therefore, all the three appellants shared common intention to inflict injury on the head of deceased, which was sufficient in the ordinary course of nature to cause death. The trial court held that all the three accused had knowledge that by inflicting head injury, death of Jai Singh is inevitable and accordingly convicted all the three appellants under Section 304 Part II IPC with the aid of Section 34 IPC.
42. The question now emerges is whether accused appellant Mangi @ Man Singh at all inflicted any injury on the person of Jai Singh?
43. PW-2 Nahar Singh has stated that Man Singh inflicted injury by the same stone on the mouth of Jai Singh. However, the witness has admitted that he did not mention the part of the body of deceased on which Man Singh inflicted injury by stone, in his report Ex.P2. He further clarified that Jai Singh sustained injury on the mouth and ear and his teeth were also broken. Surprisingly enough, PW-1 Dr. Rajeev mittal did not notice any injury on the mouth, ear or jaw of Jai Singh. The doctor has specifically admitted in his cross examination that there was no injury on the mouth or any ear of the deceased.
44. From the evidence discussed above, 1 have no hesitation in holding that Man Singh did not inflict any injury on the body of Jai Singh as the statement of PW-1 Nahar Singh to the extent that Man Singh inflicted injuries on the person of Jai Singh, does not find support from the medical evidence. The evidence relied upon by the trial court that all the three accused appellants inflicted injury on the body of Jai Singh to draw inference of common intention is missing. The conviction of appellant Mangi @ Man Singh with the aid of Section 34 IPC for the act of appellants Gurdeo Singh and Sajjan Singh therefore, cannot be sustained and he deserves to be extended the benefit of doubt.
45. Lastly, it has been contended by the learned counsel for the appellants that the learned trial court has awarded maximum term of sentence of 10 years provided under Part-II of Section 304 IPC, to each of the appellant, which according to the learned counsel is too harsh and excessive. It is submitted that a lenient view in awarding sentence may be taken, keeping in view the facts and circumstances of the case, the manner in which the incident took place, young age of Gurdeo Singh and Sajjan Singh, as also the fact that it was their first offence.
46. I have considered the above submission. It is true that if the offence committed falls under category second of Section 304 IPC, maximum term of sentence provided is 10 years, or fine or both. Admittedly, the incident took place all of sudden on a very trifle matter and the accused were unarmed. It is also an admitted fact that appellants Sajjan Singh and Gurdeo Singh picked a heavy stone and hit the same on the head of deceased Jai Singh and none of them repeated the blow. In this view of the matter, taking into consideration the fact that it was their first offence and the age of appellants Sajjan Singh and Gurdeo Singh being 19 and 35 years at the time of commission of offence, I am of the considered view that the sentence awarded to these two appellants is too excessive. The ends of justice would be met if each of the appellants is sentenced to a term of 5 years.
47. Resultantly, the appeals are partly allowed. The conviction of accused appellant Mangi @ Mansingh under Section 304 Part II IPC or read with Section 34 IPC is set aside and he is acquitted of the offence charged with. He be released forthwith, if not wanted in any other case. The conviction of appellants Sajjan Singh and Gurdeo Singh under Section 304 Part II is maintained. However, the substantive sentence of 10 years awarded to Sajjan Singh and Gurdeo Singh is reduced and they are sentenced to undergo rigorous imprisonment for five years each. The remaining part of the order of the trial court as to the imposition of fine and sentence in default thereof and payment of compensation is maintained.