Laxman S/O Uttam Tajne vs The State Of Maharashtra Through ...
2002 Latest Caselaw 544 Bom

JUDGMENT

R.K. Batta, J.

1. Both these appeals arise out of the same incident in respect of Sessions Trial No. 18 of 1996 held before the Additional Sessions Judge, Washim. Before the Additional Sessions Judge, Washim, nine accused had been put up for trial for offences under Sections 147, 148, 302 read with Section 149 of the Indian Penal Code and in the alternative, under Section 302 read with Section 34 of the Indian Penal Code. Learned Additional Sessions Judge, Washim vide judgment dated 3.2.1997 acquitted all the accused of the charges and convicted accused No. 4 Laxman Tajne, appellant in Criminal Appeal No. 54 of 1997 for the offence under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life. He, however, acquitted him of the charges under Sections 147, 148 read with Section 149 of the Indian Penal Code. Accused No. 4 Laxman Tajne has, therefore, filed appeal against his conviction and sentence. The State has come in appeal which is Criminal Appeal No. 180 of 1997 against the acquittal of the said accused. Accordingly, both the appeals were heard together and it is proposed to dispose of both the appeals by common judgment.

2. The prosecution case, in brief, insofar as it is relevant for the purpose of decision in the appeals, is that the appellant Laxman had assaulted the deceased Jivaa with an axe on 20th November, 1995 at about 10.30 p. m. The axe blow was given on the neck of deceased Jivan as a result of which he suffered incised wound on left side of neck extending from left stemoclavicle joint to left mandible angle. The injury was 6" in length and 2 cm. in depth, as a result of which, there was laceration of left carotid due to which there was no supply of blood to the brain and the deceased died. According to Doctor, the injury was sufficient in the ordinary course of nature to cause death. The prosecution case further is that at the time when Laxman had given axe blow to deceased Jivan, Gourishankar Tajne, who is respondent No. 3 in the appeal filed by State, had not only caught hold of deceased Jivan, taut he instigated Laxman to assault Jivan after which appellant Laxman had assaulted Jivan with an axe. It appears that initially quarrel was going on between deceased Jivan and one Vijay Yadav and other respondents were present at the time of incident. There is also evidence to show that excluding appellant Laxman Tajne, other accused had thrown their axes on the person of Jivan and it is only appellant Laxman who had inflicted axe blow on the neck of Jivan. The prosecution had examined as many thirteen witnesses in support of the charges.

3. Mr. Shashank Manohar, learned Advocate appearing on behalf of appellant Laxman Tajne restricted his arguments only in relation to applicability of Section 302 of the Indian Penal Code in the facts of this case and he does not challenge the prosecution evidence on merits. According to him, it is a case of solitary injury and In the facts and circumstances of the case, it cannot be said that appellant Laxman intended to inflict the particular injury in question on the neck as a result of which the deceased had died. He has pointed out that there is evidence on record that it was dark and as such it is not possible to attribute the intention to inflict the injury in question to appellant Laxman. According to him, on the basis of prosecution evidence on record, the offence disclosed would fall under Section 304 Part II of the Indian Penal Code and that the appeal be allowed to that extent.

4. On the other hand, learned Additional Public Prosecutor submitted before us that the incident took place on account of quarrel in the Gram Panchayat elections: that the intention to inflict injury on the neck of deceased is crystal clear from the evidence on record and that there is absolutely no case for interference in the conviction of appellant Laxman recorded under Section 302 of the Indian Penal Code by the Trial Court. In respect of the State appeal against acquittal, the same is pressed by learned A.P.P. against respondent No. 3 Gaurishankar Tajne alone since against the other co-accused who have been acquitted, there is no evidence. According to learned A.P.P. there is ample evidence on record to show that Gaurishankar (respondent No. 3) had not only caught deceased Jivan, but he had also instigated appellant Laxman to inflict blow on deceased Jivan after which the blow was given by the appellant Laxman to deceased Jivan as a result of which he died. Learned A.P.P. took us through the evidence of P.W. 1 to P.W. 3 and P.W. 5 in order to illustrate his argument that there is ample evidence on record as against respondent No. 3 Gaurishankar Tajne for his involvement in the murder of deceased Jivan. Learned A.P.P. has also urged before us that there is evidence on record to show that after giving one blow, appellant had tried to give a second blow to deceased Jivan, but he was prevented from doing so by witnesses who were present on the spot who snatched axe from his hand. He, therefore, contends that intention on the part of Laxman to kill Jivan is amply borne out from the evidence on record. We shall discuss the evidence on record at a later stage. On the question of the single blow reliance has been placed on Ramaswaniy v. State of Tamil Nadu 1993 Cri. L. J. 3253, State of Karnataka v. Vedanayagam 1994 (3) Crimes 1017, and Mahesh Balmiki @ Munna v. Slate of Madhya Pradesh , Learned Advocate Mr. Shashank Manohar has also relied upon rulings on single blow, viz. Hari Ram v. State of Haryana ; Jagtar Singh v. State of Punjab ; Tholan v. State of Tamil Nadu ; Ranjitsingh Chandrasingh Atodaria v. State of Gujarat AIR 1994 SC 1060 : 1994 Cr. L.J. 1425, and Mahesh v. State of Madhya Pradesh .

5. In reply in appeal against acquittal, learned Advocate Mr. Shashank Manohar has urged before us that there are material omissions in the statements of prosecution witnesses in respect of Gaurishankar having caught Jivan while appellant Laxman is reported to have given axe blow on account of which the prosecution had failed to prove the charge against Gourishankar as a result of which he was acquitted by the Trial Court. In respect of second blow alleged to have been given by appellant Laxman Tajne to Jivan, it is pointed out that there are likewise omissions in the statements of witnesses on this aspect on account of which this evidence cannot be taken into consideration as against appellant Laxman Tajne so as to come to the conclusion that he had intention to kill deceased Jivan.

6. In the light of the rival contentions, we shall, therefore, examine the case of appellant Laxman as also the ease of respondent No. 3 Gourishankar.

7. We shall first take up the case of appellant Laxman Tajne and refer to the relevant part of evidence. P.W. 1 Vinayak Gunjate has stated that Gourishankar and others were giving threats and saying "kill Jivan". He further stated that Gourishankar caught Jivan and Laxman had given axe blow to him. The axe blow was given on the neck of Jivan. When Laxman was about to give second blow of axe to Jivan, Chintaman, Sriram and Tulsiram tried to snatch the axe from Laxman. He has further stated that Gourishankar was having axe. In his cross-examination he stated that he had told the police that Gourishankar had caught Jivan. He had told to Police in his report and first statement that Gaurishankar had caught Jivan, but he could not assign any reason why the said fact is not mentioned in his report and the first statement. He also stated that he had mentioned in the report that axe blow was given in the neck, but the specific words "on the neck" are not mentioned in the report for the omission of which he could not give any reason. He also stated that he did not remember whether he had stated to the police at the time of the report that Shriram Shelke had caught the axe when Laxman was about to give second axe blow to Jivan. He also admitted that it is not specifically mentioned in his report that Shriram had caught the axe of Laxman when Laxman was about to give second blow of axe to Jivan. He further admitted in his cross-examination that it was a dark night and due to rush as also dark night it was not possible to see as to who was catching hold of and who was separating. Thus, from the evidence of P.W. 1 Vinayak it follows that the incident took place when it was dark and the time of incident is stated to be at about 10.30 p. m. He also stated that clue to dark and rush, it was not possible to see who was catching hold of and who was separating. He has also not specifically stated that the axe blow was given on the neck. Of course, the fact that appellant Laxman tried to give second blow with the axe which was caught by the other witnesses does not figure in his police statement which fact is thus an improvement made by him in the course of evidence in the Court.

8. P.W. 2 Shriram Shelke has stated that quarrel started on account of dog; Gaurishankar had caught hold of Jivan; Gaurishankar said what he was seeing, "give axe blow", Laxman had taken out axe from his arms and gave axe blow on the neck of Jivan. He also stated that when Laxman was about to give second axe blow to Jivan, he caught hold of him. According to him, the incident took place between two electric poles on which there were electric lights on. In cross-examination, he deposed that he had stated to Police that Gaurishankar had caught hold of Jivan when the said axe blow was given. He was confronted with his police statement where fact of catching hold of and instigation was not mentioned. He further stated that he had deposed before the Magistrate that he had caught hold of axe while Laxman gave second blow, but this fact was not found in the statement of this witness before the Magistrate though this fact was mentioned in his police statement. Thus, it follows from the evidence from P.W. 2 Shriram that there arc omissions in his police statement relating to Gaurishankar having caught and instigating Laxman and there is omission in respect of the fact of second blow with reference to his statement before the Magistrate, but the said fact is mentioned in his police statement. P.W. 3 Tulsiram, P.W. 4 Eknath and P.W. 5 Pundlik in there statements before the Court have not stated anything about the second blow having been tried by appellant Laxman.

9. Thus, from the evidence of P.W. 1 to P.W. 5 it does riot stand proved that appellant Laxman tried to give second blow with axe and the axe was caught by the other witnesses though P.W. 1 Vinayak and P.W. 2 Shriram do speak about it in their examination-in-chief, but when confronted with their previous statements, it was found that there was omission on this aspect in their previous statements and the other witnesses had not spoken anything in this respect. Therefore, the prosecution has been able to establish that the incident took place on a dark night about 10.30 p. m. when the visibility was poor and it is in this state of affairs that the appellant Laxman is reported to have given one blow to the deceased which fell on his neck. However, P.W. 1 and P.W. 5 are consistent that appellant Laxman gave an axe blow to the deceased. The case is thus of a single blow though given by an axe which landed on the neck of deceased Jivan, but it is rather difficult under the circumstances to come to a conclusion that the appellant Laxman intended to cause particular injury in question on the neck due to which carotid was lacerated owing to which there was no supply of blow to brain and the deceased died. Though injury was sufficient to cause death in ordinary course of nature, yet it cannot be said that appellant Laxman intended to inflict specific injury on the neck. Nevertheless, knowledge that the axe blow was likely to cause death or to cause such bodily injury as is likely to cause death has to be attributed to appellant Laxman.

10. Learned Additional Public Prosecutor as well as learned Advocate for appellant Laxman had relied upon number of authorities on the question of single blow and we shall at this stage make brief reference to the said rulings as also rulings on which we could lay our hands.

11. The Apex Court in Jagrup Singh v. State of Haryana , has made the following observations which are relevant to the issue under consideration:-

There is no justification for the assertion that the giving of a solitary blow on a vital part of the body resulting in the death must always necessarily reduce the offence to culpable homicide not amounting to murder punishable under Section 304, Part II of the Code. If a man deliberately strikes another on the head with a heavy log of wood or an iron rod or even a lathi so as to cause a fracture of the skull, he must, in the absence of any circumstances negativing the presumption, be deemed to have intended to cause the death of the victim or such bodily injury as is sufficient to cause death. The whole thing depends upon the intention to cause death, and the case may be covered by either Clause Firstly or Clause Thirdly. The nature of intention must be gathered from the kind of weapon used, the part of the body hit, the amount of force employed and the circumstances attendant upon the death.

Under Clause Thirdly of Section 300 of the Code, culpable homicide is murder, if both the following conditions are satisfied : (a) that the act which caused death is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to cause death, viz. that the injury found to be present was the injury that was intended to be inflicted.

12. The Apex Court, in Randhir Singh v. State of Punjab , while dealing with the ease of single blow, has observed that totality of circumstances has to be considered including whether accused carried weapon in advance or there was premeditation, scuffle and whether accused intended to cause particular injury. Reliance in this respect has been placed on earlier ruling of the Apex Court in Jagrup Singh v. State of Haryana.'.

13. In Jai Prakash v. State (Delhi Administration) , it has been pointed out that it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore it would not amount to murder. It is pointed that the said Clause consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. It is further observed that under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. The Apex Court has emphasized that in Clause Thirdly of Section 300 of the Indian Penal Code the words "intended to be inflicted" are significant. It is further observed that when a person commits an act, he is presumed to expect the natural consequences, but from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature. However, the presumption arises that he intended to cause that particular injury. In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such circumstances cannot be laid down in an abstract rule and they will vary from case to case. Relying upon its earlier judgment In Virsa Singh v. State of Punjab , it was pointed out that weapon used, degree of force released in weilding it, the antecedent relations of the parties, the manner in which the attack was made - that is to say, sudden or premeditative, whether the injury was inflicted during struggle or grappling, the number of injuries inflicted and their nature and parts of the body where the injuries are inflicted are some of the relevant factors. The totality of such factors is to be considered.

14. The Apex Court in Rajangam v. State of Tamil Nadu . where the accused had inflicted single injury by knife on abdomen of deceased and another injury on left knee caused in course of causing another injury to abdomen and the deceased had died after eight days of undergoing operation and gangrenous got set in, it was held that the accused could be attributed with knowledge that he was likely to cause death and conviction under Section 302 of the I.P.C. was altered to one under Section 304 Part II of the I.P.C.

15. The learned A.P.P. has relied upon Ramaswamy v. State of Tamil Nadu (supra). It was a case of single injury on abdomen of deceased where Doctor had not opined that injured would necessarily die and it was held that it cannot be said that accused intended to cause the particular injury or intended to cause death and the offence was culpable homicide not amounting to murder and the accused was sentenced to rigorous imprisonment for seven years under Section 304 Part II of the Indian Penal Code. Thus, this ruling does not help the prosecution, but on the contrary may help the defence.

16. The next ruling upon which reliance has been placed by learned A.P.P. is State of Karnataka v. Vedanayagam (supra). In this case the High Court had held that there was no pre meditation and that accused could not be said to have intended to cause death. The High Court, therefore, converted the conviction from Section 302 of the I.P.C. to Section 304 Part II of the I.P.C. The Apex Court, however, found that there was evidence on record showing that the accused intended to cause that particular injury which was objectively found to be sufficient in ordinary course of nature to cause death. Therefore, the Apex Court set aside findings of the High Court and convicted the accused under Section 302 of the Indian Penal Code. The nature of injury in this case was also taken into consideration. The injury was serious and brought about instant death. The blow was aimed at chest, injury was inflicted with great force with deadly weapon on the vital part. It entered the thoracic cavity, passed through sternum, injured lower lobe of left lung and entered the chamber off the left ventricle. In this case, the observations made by Honourable Shri Justice Vivian Bose in Virsa Singh v. State of Punjab (supra) have been quoted, as to how the intention is to be inferred in case of single injury, which read as under :-

The question is not whether the prisoner intended to inflict serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that, he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there. The question, so far as the intention is concerned, is riot whether he intended to kill, or to inflict on injury of a particular degree of seriousness, but whether he intended to inflict, the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.

It is true that in a given ease the enquiry may be linked up with the seriousness of the injury. For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not. because the prisoner did not intend the injury that he intended to inflict to be as serious as it: turned out to be but because he did not. intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury. The difference is not one of law but one of fact.

In this case, the Apex Court has also considered the observations made in Jagrap Singh v. State of Haryana (supra) which have already been quoted above in para 11 of this judgment.

16. The learned A.P.P. then placed reliance on Mahesh Balmiki @ Munnci v. State of M. P. (supra). In this case, the accused had asked the deceased to come to particular place to receive the watch and at that place three associates of accused caught hold of deceased and accused gave a single fatal blow on chest with knife. Total depth of wound was 19 cm. and it was found that the said blow cannot be said to be inflicted without premeditation. It was pointed out that in cases of theory of single blow, it cannot be said that in all cases of single blow Section 302 of the Indian Penal Code-is not attracted though single blow in some cases may entail conviction under Section 302 of the I.P.C. and in some cases under Section 304 of the I.P.C. In this respect, the Apex Court has made the following observations :

There is no principle that in all cases of single blow Section 302 of the I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 of the I.P.C., in some cases under Section 304 of the I.P.C. and in some other eases under Section 326 of the I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant-accused who inflicted though a single yet a fatal knife blow. These facts clearly establish that, the accused had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. Therefore, conviction of accused under Sections 302 and 324 of the I.P.C. was proper.

16A. Learned Advocate for appellant Laxman Tajne relied on Hari Ram v. State of Haryana (supra). It was a case of a single blow dealt in heat of altercation where the intention to kill was not apparent and the conviction was recorded under Section 304, Part II of the Indian Penal Code.

17. Learned Advocate for appellant Laxman next relied on Jagtar Singh v. State of Punjab (supra) wherein upon sudden quarrel on the spur of moment arising out of trivial reason on chance meeting of parties and without any pre-meditation or malice a single blow was inflicted by knife on the chest of victim causing his deaths In these circumstances, intention to cause death or causing particular injury could not be imputed to him though knowledge that he was likely to cause death could be inferred and as such offence fell under Section 304, Part II and not under Section 300 of the Indian Penal Code.

18. Learned Advocate for appellant Laxman then relied upon Tholan v. State of Tamil Nadu (supra) wherein accused started remonstrations using filthy language against certain organisers of a chit fund who had no connection with the deceased, in front of the house of the deceased and the deceased came out. of his house and asked the accused to go a way. The accused on spur of moment gave only one blow with knife to the deceased and pushed him to some distance. On these facts, it was held that in the circumstances of the case though requisite intention to commit murder could not he attributed to the accused, he wielded a weapon like a knife and therefore, he could be attributed with knowledge that he was likely to cause an injury which was likely to cause death and in such situation though accused could not be convicted under Section 302, he would be guilty of committing an offence under Section 304, Part II of the Code.

19. Next reliance of learned Advocate for appellant Laxman is on Ranjitsingh Chandrasingh Atodaria v. Slate of Gujarat (supra). In this case, after sudden quarrel and fight, one stab injury was inflicted and it was held that intention to cause death could not be spelt out and the conviction of the accused was altered from under Section 302 to under Section 304, Part II of the Indian Penal Code.

20. Last ruling relied upon by learned Advocate for appellant Laxman is in the case of Mahesh v. State of Madhya Pradesh (supra) wherein a sudden quarrel without pre-meditation; accused gave single blow and ran away, it was held that the accused could not be held guilty under Section 302 of the Indian Penal Code, but was found guilty for an offence under Section 304, Part II of the Code on account of applicability of Exception 4 to Section 300 of the Code.

21. In view of the above position of law, we find that in incident which took place in a dark night at about 10.30 p. m., the appellant Laxman Tajne had given an axe blow to deceased Jivan which landed on his neck lacerating carotid due to which supply of blood to brain was stopped and he died. In the facts and circumstances, it is rather difficult to hold that the appellant Laxman Tajne intended to cause the said particular injury which resulted in his death. Thus, the knowledge and intention to cause death or the particular injury cannot be attributed to him.

Neverthelss, knowledge that by his act he is likely to cause death or to cause such bodily injury as it is likely to cause death has to be attributed to the appellant. In this view of the matter, the conviction of the appellant Laxman Uttam Tajne under Section 302 of the Indian Penal Code cannot be sustained and the conviction is altered to Section 304 Part II of the Indian Penal Code. The said appellant is stated to be in custody from 20.11.1995 which means that he has already suffered about 6 and half years of imprisonment which, in the circumstances, is deemed to be sufficient punishment under Section 304 Part II of the Indian Penal Code. The appeal is accordingly allowed to aforesaid extent. Conviction of the appellant Laxman is altered from Section 302 of the I.P.C. to Section 304 Part II of the I.P.C. and the period of detention with effect from 20.11.1995 to date in connection with the case under consideration is considered to be sufficient punishment. He shall, therefore, be released in this case if he is not required in any other case.

22. Coming now to the case of respondent No. 3 Gaurishankar Tajne in the State Appeal, prosecution relies on the evidence of P.W. 1, P.W. 2, P.W. 4 and P.W. 5. P.W. 4 Eknath Dhote had categorically stated that he saw that Gaurishankar had caught hold of Jivan; Laxman was by his side; Gaurishankar said that what he was seeing, make assault and Laxman gave axe blow on the neck of Jivan. There has been absolutely no cross-examination on this testimony of this witness on this aspect and on the contrary, it was suggested to him that an attempt to separate was made when Jivan was caught by Gaurishankar. Thus, there is admission on the part of defence that Gaurishankar had caught Jivan.

23. Likewise, P.W. 5 Pundlik Bhojapure has stated that Gaurishankar had caught Jivan, Laxman came to the spot. Gaurishankar asked Laxman to give axe blow and Laxman had given axe blow on the neck of Jivan. Again there is absolutely no cross-examination on the statement of this witness, though this witness was asked whether he had separated when Gaurlshankar had caught Jivan, but he slated that he had not separated them.

24. P.W. 1 had stated that the incident took place at about 10/10.30 p. m. and he heard the shouts near the house of Bataulal. At that time, Gaurishankar and others were giving threats and saying, "kill Jivan". He has further stated that Gaurishankar had caught hold of Jivan and Laxman gave an (sic) hlow to him. It is no doubt true that this witness was confronted with his police statements where he had not stated about Gaurishankar having caught Jivan, but there is no challenge at all to his statement that Gaurishankar and others were giving threats and saying "kill Jivan" though he was confronted with police statement where he had not stated "MARA MARA". Thus, from the evidence of P.W. 1 it is proved that not only Gaurishankar gave threat to kill Jivan, but it is pertinent to note that he was having axe in his hand.

25. P.W. 2 Shriram Shelke had stated that Gaurishankar had caught hold of Jivan and Gaurishankar said, what he was seeing, give axe blow and Laxman took out axe from his arms and gave axe blow to Jivan. He was confronted with his statement before the Police where he had not stated that Gaurishankar had caught hold of deceased Jivan and instigated Laxman, but there is a reference that all of them including Gaurishankar, were giving threat to kill Jivan.

26. In view of categorical evidence of P.W. 4 Eknath Dhote and P.W. 5 Pundlik Bhojapure which could not be shaken during cross-examination and the evidence that he gave threats and instigated Laxman to assault with axe, we are of the opinion that respondent No. 3 Gaurishankar Tajne is guilty of the offence under Section 304, Part II read with Section 34 of the Indian Penal Code. The Trial Court has considered the evidence of P.W.4 and P.W. 5 in paragraph 18 of the judgment. The reasons given to discard the testimony of these witnesses are superficial and the conclusion that their testimony does not inspire confidence, is contrary to their evidence on material particulars since their testimony on material particulars could not be shaken. The acquittal of the respondent No. 3 Gaurishankar Tajne is, therefore, set aside and he is held guilty for the offence under Section 304, Part II read with Section 34 of the Indian Penal Code. Taking into consideration the role played by respondent No. 3 Gaurishankar Uttam Tajne, we are of the opinion that ends of justice would be met by convicting him and sentencing him to suffer rigorous imprisonment for five years under Section 304, Part II read with Section 34 of the Indian Penal Code. The period of detention during the trial, if any, shall be set off under Section 428 of the Cr. P.C. from the sentence imposed on him by this judgment. The State appeal, therefore, partly succeeds in respect of respondent No. 3 Gaurishankar Uttam Tajne and is allowed to the aforesaid extent. Remaining part of the State appeal is hereby rejected. Respondent No. 3 shall surrender before the Trial Court within four weeks from today failing which the Trial Court shall take coercive steps against respondent No. 3 including forfeiture of bail bonds executed by him during pendency of trial. Copy of judgment be expeditiously sent to the Trial Court for necessary action.