Chandramauli Kr. Pd., J.@mdashAltogether thirteen accused persons including Sidheshwar Yadav, Suresh Yadav and Sanjay Yadav were put on trial for intentionally causing the death of Bhola Yadav in furtherance of their common object punishable u/s 302/149 of the Indian Penal Code. In addition thereto, Sidheshwar Yadav was charged for causing the death of the aforesaid Bhola Yadav punishable u/s 302 of the Indian Penal Code. Sanjay Yadav aforesaid, during the course of trial, was found to be a juvenile and hence his trial was separated. Seventh Additional Sessions Judge, Gaya by judgment dated 12th of July, 2001 passed in Sessions Trial No. 397 of 1999 (485 of 1988) acquitted all the accused persons of the charge u/s 302/149 of the Indian Penal Code but found accused Sidheshwar Yadav guilty of offence under Sections 302 and 148 of the Indian Penal Code and accused Suresh Yadav under Sections 302/109 and 147 of the Indian Penal Code. Rest of. the accused persons were found guilty of offence u/s 147 of the Indian Penal Code. Accused Sidheshwar Yadav and Suresh Yadav have been sentenced to undergo rigorous imprisonment for life for offence under Sections 302 and 302/ 109 of the Indian Penal Code respectively and also to pay a fine of Rs. 10,000/-each and in default thereof to further undergo rigorous imprisonment for a period of three years. Accused Sidheshwar Yadav has also been sentenced to undergo rigorous imprisonment for a period of three years for offence u/s 148 of the Indian Penal Code. All the accused including Suresh Yadav found guilty u/s 147 of the Indian Penal Code have been sentenced to undergo simple imprisonment for a period of one year. The sentences have been directed to run concurrently.
2. Sidheshwa'' Yadav and Suresh Yadav aggrieved by the judgment of conviction and sentence have preferred appeal together, which has been registered as Criminal Appeal No. 375 of 2001, whereas the appeal preferred by rest of the accused has been registered as Criminal Appeal No. 359 of 2001.
3. Both the appeals were heard together and are being disposed of by this common judgment.
4. Prosecution story according to the fardbeyan given by Bhola Yadav (since deceased) on 20.8.1987 at 11.45 A.M. before the Sub-Inspector of Atri Police Station at Government Hospital, Atri is that on the same day at 7 A.M. while he was going for irrigating his paddy field, he saw accused Sidheshwar Yadav armed with rifle, accused Suresh Yadav with bomb and rest of the accused persons with country-made rifle, garasa, bomb, lathi etc. sitting on the ridge. Seeing the informant, accused Sidheshwar Yadav and Suresh Yadav stated that he is creating disturbance in irrigating the field and he being alone, be killed. At this, the informant tried to flee away, but accused Sidheshwar Yadav fired from his rifle which caused injury on his right thigh. Thereafter other acccused persons exploded bomb and resorted to firing and surrounded his house. The informant in the first information report had disclosed that Kamta Yadav (PW. 1), Ram Bilash Yadav (P.W. 2), Shankar Yadav (P.W. 3) and Shyam Narain Yadav (P.W. 4) are witness to the occurrence. On the basis of the aforesaid information, Atri P.S. Case No. 84 of 1987 was registered under Sections 147, 148, 149, 307, 324, 341, 427 and 447 of the Indian Penal Code, 27 of the Arms Act and 3/5 of the Explosive Substances Act. In course of treatment informant Bhola Yadav died, hence Section 302 of the Indian Penal Code was later added.
5. Police after investigation submitted charge-sheet under Sections 147, 148, 149, 341 and 302 of the Indian Penal Code, Section 27 of the Arms Act and Section 3/4 of the Explosive Substances Act and the accused persons were ultimately committed to the Court of Sessions to face trial.
6. During the trial, all the accused persons were charged for causing the death of Bhola Yadav in prosecution of their common object as a member of unlawful assembly punishable u/s 302/149 of thp Indian Penal Code. Accused Sidheshwa Yadav, in addition thereto, was also charged for intentionally causing the death of Bhola Yadav punishable u/s 302 of the Indian Penal Code. No other charge has been framed against the accused persons. Accused persons denied to have committed any offence and claimed to be tried.
7. Prosecution in support of its case had altogether examined nine witnesses. Out of whom, PW. 1 Kamta Yadav, PW. 2 Ram Bilash Yadav, PW. 3 Shankar Yadav and P.W. 5 Sakaldeo Yadav claim to be eye witnesses to the occurrence. P.W. 4 Shyam Narain Yadav, P.W. 6 Laxminia Devi and P.W. 7 Suryavanti Devi have been tendered by the prosecution and cross-examined by the accused persons. P.W. 8 Dr. Vijay Kumar had conducted post mortem examination and had proved the postmortem report. P.W. 9 Saryu Pandit is the Investigating Officer of the case, who had recorded the fardbeyan of the informant, inspected the place of occurrence, took the statement of the witnesses and submitted charge-sheet against the accused persons.
8. The learned Judge on appraisal of the materials brought on record by the prosecution treated the fardbeyan as dying declaration and finding the witnesses to be reliable held the accused persons guilty as above.
9. It is relevant here to state that while the appeal preferred by accused, who have been acquitted of the charge u/s 302/149 of the Indian Penal Code and found guilty of offence u/s 147 of the Indian Penal Code came up for admission before this Court on 6.8.2001, it was stated by the Counsel that State shall file Government Appeal against the acquittal of the aforesaid persons u/s 302/149 of the Indian Penal Code, but it is common ground that no such appeal has been filed.
10. P.W. 1 Kamta Yadav had stated in his evidence that on the date of occurrence while he was going to irrigate his field situated at Uttari Khanda, he saw all the accused persons sitting on the ridge variously armed and accused Sidheshwar Yadav armed with rifle and Suresh Yadav armed with bomb. Accused Sidheshwar Yadav ordered to kill the informant Bhola Yadav as he creates hindrance in irrigating the field, at which Bhola Yadav tried to flee away from there, whereupon accused Sidheshwar Yadav fired which caused injury to Bhola Yadav while he was at the eastern ridge of the field of Rameshwar Yadav. However, Bhola Yadav ran into his Gaushala, where all the accused persons chased him and damaged tiles of his house.
11. P.W. 2 Ram Bilash Yadav, happens to be the brother of the deceased and on the date of occurrence while he was at his Gaushala, on hearing the alarm of his brother he rushed towards Uttari Khanda and saw that he was being chased by the accused persons including Sidheshwar Yadav, who was armed with rifle and accused Suresh Yadav with bomb. According to this witness, accused Suresh Yadav exhorted to kill Bhola Yadav, otherwise he will retreat in his house, whereupon accused Sidheshwa Yadav fired which caused injury to him, but Bhola Yadav ran into his Gaushala. According to this witness, he also entered into the Gaushala and heard explosion of bombs and when villagers collected he came out, he found the tiles of the house damaged. He brought his injured brother to Atri Hospital, where his statement was recorded. From there he was taken to the Magadh Medical College & Hospital, Gaya, where during the course of treatment he died.
12. P.W. 3 Shankar Yadav is another eye witness to the occurrence and has stated in his evidence that on the date of occurrence while he was on the roof of his house, he saw Bhola Yadav being chased by accused Sidheshwa- Yadav armed with rifle and Suresh Yadav with bomb and other accused persons variously armed. According to this witness, accused Sidheshwar Yadav fired from his rifle which caused injury to Bhola Yadav and they chased him till he entered in his Gaushala, where accused Suresh Yadav hurled bomb. In his cross-examination, he has stated that Bhola Yadav was related to him as grandfather. In his cross-examination he has also stated that Bhola Yadav sustained injuries while he was fleeing. He has also stated that altercation took place which led to the incident.
13. P.W. 5 Sakaldeo Yadav is another eye witness to the occurrence and he has also supported the case of the prosecution. He has stated in his evidence that deceased Bhola Yadav had gone for irrigating his field and the accused persons including accused Sidheshwar Yadav armed with rifle, accused Suresh Yadav armed with bomb and all other accused persons variously armed were sitting on the ridge of the field. Accused Sidheshwar Yadav ordered to kill Bhola Yadav, whereupon all the accused persons ran to kill him. Bhola Yadav ran for safety towards his residence but while he was 2-3 poles short of his residence Sidheshwar Yadav fired from his rifle causing injury to him. However, Bhola Yadav somehow managed to enter into his Gaushala and thereafter other accused persons including Suresh Yadav threw bombs which damaged the tiles. According to this witness, thereafter he alongwith other persons brought Bhola Yadav to the Police Station and from there to the Hospital, where the Sub-Inspector of Atri Police Station recorded the statement of Bhola Yadav in the Hospital, explained the same to him and Bhola Yadav finding the same to be true put his signature. According to this witness, he has also put his signature on the fardbeyan as a witness. In his cross-examination he had admitted that Bhola Yadav was related to him as brother and he had denied the suggestion that in order to save himself from the counter case he had given false evidence.
14. P.W. 8 Dr. Vijay Kumar, at the relevant time, was posted at Magadh Medical College & Hospital, Gaya and performed the post mortem examination of Bhola Yadav on 27.8.1987 at 11 A.M. and found the following ante mortem injuries on his person:-
(i) Lacerated wound 6" x 2" x bone deep over lower and lateral aspect of right thigh. All the structures from skin to femur bone were found lacerated.
15. According to the doctor, the injury found on the person of the deceased was grievous in nature and caused by fire-arm. In the opinion of the doctor the cause of death was on account of haemorrhage and shock due to the injury found on the person of the deceased and the time since death is between 18 to 24 hours.
16. P.W. 9 Saryu Pandit is the Investigating Officer of the case and had recorded the fardbeyan of the deceased at the State Dispensary, Atri. He had recorded the statement of the witnesses, inspected the place of occurrence as shown to him by the witnesses which is a ridge in the land of Ram Kishun Yadav. He found the house of the deceased Bhola Yadav at a distance of about 30 yards. He found and seized the reminents of bombs and explosives (Ext. 6) from the place of occurrence.
17. Mr. Bamdeo Pandey, appearing on behalf of the appellants submits that the fard beyan given by the deceased Bhola Yadav, which has led to recording the formal first information report cannot be treated as dying declaration as before recording the statement the Sub-Inspector of Police had not obtained any certificate in regard to his mental fitness. Further there being ample time to get it recorded by a Magistrate, same ought not to have been recorded by the Sub-Inspector of Police. In support of the submission, he has placed reliance on a judgment of the Supreme Court in the case of Dalip Singh and Others vs. State of Punjab (AIR 1979 SC 1173) and our attention has been drawn to the following passage from paragraph 8 of the judgment, which reads as follows:
"The practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method."
18. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor, however, appearing on behalf of the State submits that Bhola''s statement was not recorded by the Sub-Inspector of Police as a dying declaration but a statement disclosing commission of a cognizable offence and at that time it was not known that he would die of the injury sustained by him. He points out that Bhola Yadav at the time of giving the statement was in anguish but in senses which would be evident from the evidence of PW. 2 Ram Bilash Yadav in paragraph 8 of his cross-examination. PW. 5 Sakaldeo Yadav, who is also a witness to the fardbeyan, has stated in his evidence that Bhola Yadav gave the statement which was recorded by the Sub-Inspector of Police, who explained the same to him and finding the same to be true put his signature. In such a situation Mr. Prasad contends that the fardbeyan given by Bhola Yadav is fit to be treated as a dying declaration and in support of his submission he has placed reliance on a Constitution Bench judgment of the Supreme Court in the case of Laxman vs. State of Maharashtra [2002 SCC (Cri) 1491] and our attention has been drawn to the following passage from the said judgment, which reads as follows:
"But where the eye witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before deatf\\ ensues and is reduced to writing by someone like a Magistrate or a doctor or a police officer. When it is recorded no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaraton can be acted upon provided the court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
19. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Pandey. From the evidence of the eye witnesses, it is evident that the deceased was conscious and he sustained the injury on his thigh. At the time his statement was recorded by the Sub-Inspector of Police, it was not expected that he would die and, as such, the Sub-Inspector of Police did not proceed to record his statement as a dying declaration. However, the fardbeyan discloses the cause of death and the deceased dying later on, the fardbeyan is fit to be treated as dying declaration. According to the dying declaration, accused Sidheshwar Yadav fired from his rifle which caused injury to the deceased which ultimately proved to be fatal and the involvement of Sidheshwar Yadav in the crime is writ large from the dying declaration.
20. Mr. Pandey submits that there is vital contradiction in regard to the place where the occurreence had taken place which creates doubt in regard to the truthfulness of the prosecution case. In this connection, our attention has been drawn to the fardbeyan (dying declaration) according to which the place of occurrence is the field of one Rameshwar Yadav. He points out that according to P.W.1 Kamta Yadav, the deceased sustained gun shot injury at the western ridge of the field of Rameshwar Yadav, whereas according to P.W. 2 Ram Bilash Yadav the deceased sustained injury while he was three poles away from the Gaushala. He has also drawn our attention to the evidence of P.W. 5 Sakaldeo Yadav, who according to the learned Counsel had stated that Bhola Yadav sustained injuries while he ran inside his house. I do not find any substance in the submission of Mr. Pandey. P.W. 9 Saryu Pandit, who is the Investigating Officer of the case, has clearly found the house of the deceased Bhola Yadav at a distance of about 30 yards from the ridge of Ram Kishun Prasad. P.W. 1 Kamta Prasad had clearly stated that Bhola Yadav sustained fire-arm injury while he was at the western ridge of the field of Rameshwar Yadav, whereas in the first information report it has been clearly stated that he sustained injuries in the field of Rameshwar Yadav. I do not find any contradiction in the evidence of P.W. 1 Kamta Prasad and the fardbeyan. P.W. 2 Ram Bilash Yadav had stated that deceased sustained fire-arm injury while he was three poles away from the Gaushala. In the evidence of Investigating Officer, it has clearly surfaced that Gaushala of the deceased was about 30 yards from the place, where the deceasd sustained firearm injury and in that view of the matter P.W. 2 Ram Bilash Yadav instead of saying that the deceased sustained injury in the field of Rameshwar Yadav but sustained injury while three poles away from the Gaushala, in fact points out to the same place. P.W. 5 Sakaldeo Yadav had not stated in his evidence that Bhola Yadav sustained injury while he entered in his house and this is total misreading of his evidence by Mr. Pandey. In fact in paragraph 2 of his evidence this witness has clearly stated that while the deceased was 2-3 poles away from his house, accused Sidheshwar Yadav fired which caused injury to him. Thus there is no contradiction in regard to the place where the deceased had sustained injury and hence I reject this submission of the learned Counsel.
21. Mr. Pandey submits that P.W. 2 Ram Bilash Yadav, P.W.3 Shankar Yadav and P.W. 5 Sakaldeo Yadav are related to the deceased and, as such, their evidence is fit to be rejected. Mr. Prasad, however, submits that evidence of the eye witnesses cannot be rejected only on the ground that they are related to the deceased.
22. Having considered the rival submission, I do not have the slightest hesitation in rejecting the submission of Mr. Pandey. It is well settled that evidence of a witness is not fit to be rejected only on account of the relationship with the deceased. The occurrence had taken place near the house and, therefore, the eye witnesses are natural witnesses. It is well settled that evidence of such witnesses has to be appreciated with care and caution and testing the evidence of these witnesses on this anvil, I do not find any ground to reject their evidence on this score. Reference in this connection can be made to a decision of the Supreme Court in the case of
"10(ii) Apart therefrom PWs. 1, 2 and 3, they may be related to each other but that does not mean and imply total rejection of the evidence: interested they may be but in the event they are so-it is the predominant duty of the court to be more careful in the matter of scrutiny of the evidence of these interested witnesses and if on such a scrutiny it is found that the evidence on record is otherwise trustworthy, question of rejection of the same on the ground of being interested witnesses would not arise. As noticed above, it is the totality of the evidence which matters and if the same creates a confidence of acceptability of such an evidence, question of rejection on being ascribed as "interested witness" would not be justifiable. In the wake of the aforesaid, thus the second plea of rejection of evidence of prosecution witnesses cannot be sustained."
23. Mr. Pandey submits that from the evidence of P.W. 5 Sakaldeo Yadav, it is evident that a large number of witnesses had collected at the place of occurrence, but they have not been examined. He has also drawn our attention to the evidence of the Investigating Officer P.W. 9 Surya Pandit, who has stated in his evidence that the place where the occurrence had taken place is surrounded by several houses. He points out that non-examination of the independent witnesses shows that the prosecution has not come out with true case. 1n support of his submission, reliance has been placed on a decision of the Supreme Court in the case of
"For the non-examination of the other prosecution witnesses no explanation is forth coming. The relations of the deceased Satya Narain who removed the injured from the place of incident have also not been examined. Thus not a single person from the locality has been brought before the Court to unfold the actual occurrence and instead strong reliance is placed on the evidence of P.W. 1 and P.W. 2 whose presence is doubtful."
24. I do not find any substance in the submission of the learned Counsel and the decision relied on is clearly distinguishable.
25. It is well settled that it is not the quantity of the evidence but quality of the evidence which is material for judging the case of the prosecution. In my opinion if the evidence on record is otherwise satisfactory and can be accepted as trustworthy, an increase in the number of witnesses cannot be said to be requirement of law. Here in the present case the eye witnesses, who are natural witnesses to the crime have supported the case of the prosecution, which has been corroborated by other witnesses. In such circumstances non-examination of other co-villagers shall not in any way create doubt in regard to the veracity of the case of the prosecution. Further I cannot lose sight of the fact the tendency of the co-villagers in not deposing in the case to avoid vengeance.
26. As regards the authority of the Supreme Court in the case of State of U.P. vs. Madan Mohan and Others (supra), the same is clearly distinguishable. In the said case the eye witnesses were not found reliable and in the said background, non-examination of the independent witnesses was found to be fatal.
27. Mr. Pandey, then submits that there is inordinate delay in sending the first information report to the Magistrate and the prosecution had got sufficient time to think over the matter and implicate innocent persons. He points out that the first information report was recorded at 1 P.M. on 20.8.1987, whereas the same was received by the learned Magistrate on 22.8.1987. This according to Mr. Pandey creates serious doubt in regard to the case of the prosecution. In support of the submission, reliance has been placed on a decision of the Supreme Court in the case of
"As a matter of fact, the explanation put forth by the learned counsel in regard to the delay in the FIR reaching the Court is not tenable because assuming that there were some Court holidays that cannot be a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach the concerned Magistrate without any undue delay. We are of the opinion that the explanation'' given by the prosecution regarding the delay in the FIR reaching the Magistrate is neither convincing nor acceptable."
28. Mr. Prasad, however, contends that delay in sending the first information report, if at all itself does not create any doubt and on this ground alone the case of the prosecution is not fit to be rejected.
29. Having considered the rival submission, I do not find any substance in the submission of Mr. Pandey. The fardbeyan of the deceased was recorded on 20.8.1987 at 11.45 P.M. and the formal first information report was drawn on 20.8.1987 at 1 P.M. Thus the first information report was formally drawn within a reasonable time and thereafter it was sent to the Magistrate on 21.8.1987 which was received by the Magistrate on 22.8.1987. In view of the nature of evidence available on record, this delay in sending the first information report, in my opinion, is not fatal. Reference in this connection can be made to a decision of the Supreme Court in the case of State of J & K vs. S. Mohan Singh and Another [2006 (2) SCC (Cri) 484], wherein it has been held as follows:
"11. In our view, copy of the first information report was sent to the Magistrate at the earliest on the next day in the court and there was no delay, much less inordinate one, in sending the same to the Magistrate. In any view of the matter, it is well settled that mere delay in sending the first information report to a Magistrate cannot be a ground to throw out the prosecution case if the evidence adduced is otherwise found to be credible and trustworthy."
(Underlining Mine)
30. Reference can also be made to the decision of the Supreme Court in the case of
"As noticed above, the statutory obligation warrants utmost promptitude and in the event of the delay not being an unreasonable one and in the event of availability of some explanation therefor, which is otherwise acceptable as well, question of prosecution being tainted would not arise. FIR sets the investigation rolling and in the event of there being some delay somewhere and as noticed above with the acceptable explanation, the delay cannot be said to vitiate the trial by reasons therefor. In the wake of the aforesaid, we are thus unable to record our concurrence with the submissions in support of the appeals."
31. Mr. Pandey points out that the deceased for the first time was examined at Government Hospital, Atri where his fardbeyan was recorded but the doctor who had treated him at the said Hospital has not been examined, which casts doubt to the case of the prosecution. I do not find any substance in the submission of Mr. Pandey. The deceased had sustained gun shot injury and he was brought to the Primary Health Centre, Atri, from where it seems that he was referred to the Magadh Medical College & Hospital, Gaya. In such circumstance the non-examination of the doctor of Primary Health Centre, Atri cannot be said to be fatal to the case of the prosecution.
32. Mr. Pandey submits that according to the prosecution itself the injury alleged to have been caused to the deceased has been found on thigh i.e. non-vital part of the body and from that it can be safely inferred that the accused persons did not intend causing the death of Bhola Yadav. It has been pointed out that Bhola Yadav died on 26.8.1987. I do not find any substance in the submission of the learned Counsel. It is nobody''s case that accused Sidheshwar Yadav who had caused the fire arm injury is a ace shooter and could cause injury at the intended place at will. In the present case rifle has been used in the crime. Firearm injury has been found on the person of the deceased, which led to his death and from that there is no escape from the conclusion that accused Sidheshwar Yadav intended to kill the deceased.
33. Mr. Pandey lastly submits that all the accused persons were charged for offence under Sections 302 and 149 of the Indian Penal Code and in addition accused Sidheshwar Yadav was charged for offence u/s 302 of the Indian Penal Code and hence the conviction of accused Suresh Yadav for offence u/s 302/109 of the Indian Penal Code and conviction of all the accused u/s 147 of the Indian Penal Code is vitiated in the eye of law. He points out that in absence of charge u/s 147 of the Indian Penal Code, none of the accused would be held guilty of the said offence and further accused Suresh Yadav cannot be held guilty for offence u/s 302/109 of the Indian Penal Code. I find substance in the submission of the learned Counsel."
34. True it is that an accused charged for a serious offence could be convicted for a lessor offence but in a case an accused charged for a distinct offence cannot be convicted for altogether a separate offence. Section 109 of the Indian Penal Code provides for punishment of abetment and Section 147 thereof provides for punishment for rioting. Accused Suresh Yadav was not charged for offence u/s 302/109 of the Indian Penal Code and other accused persons including Sidheshwar Yadav and Suresh Yadav have not been charged for offence u/s 147 of the Indian Penal Code. In my opinion, in the absence of charge, conviction of Suresh Yadav u/s 302/109 of the Indian Penal Code and all the accused persons u/s 147 of the Indian Penal Code cannot be sustained.
35. All the eye witnesses have been named in the first information report and they have consistently stated that accused Sidheshwar Yadav fired from his rifle which caused injury to the deceased. The doctor, who had conducted the post mortem examination, had found such injury on his person. The fardbeyan given by the deceased had given the cause of death, which shows accused Sidheshwar Yadav to be the author of the fatal injury, which is admissible in evidence as dying declaration. Thus the prosecution has brought home the charge beyond all reasonable doubt against accused Sidheshwar Yadav for offence u/s 302 of the Indian Penal Code. In the result, Criminal Appeal No. 359 of 2001 is allowed and conviction and sentence of the appellants is set aside. They are on bail, they shall be discharged of their bail bonds. Criminal Appeal No. 375 of 2001 is partly allowed. Conviction of both the appellants u/s 147 of the Indian Penal Code is set aside as also the conviction of appellant Suresh Yadav u/s 302/109 of the Indian Penal Code, but conviction and sentence of appellant Sidheshwar Yadav u/s 302 of the Indian Penal Code is maintained. Appellant Suresh Yadav is on bail, he shall be discharged of his bail bonds.
Rekha Kumari, J.
36. I agree.
