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PETITIONER: THE STATE OF BIHAR

       Vs.

RESPONDENT: RAM PADARATH SINGH & ORS.

DATE OF JUDGMENT:       21/07/1998

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      Both these  appeals are  filed by  the State  of  Bihar against the common judgment of the Patna High Court in death Reference No.7  of 1987 and Criminal Appeal No. 407 of 1987. The High  Court rejected  the reference,  allowed the appeal filed by the convicted accused and acquitted them.      The prosecution case as that on 29.1.86, subhash Kunwar (informant) and his brother Rambilas @ Boudhu (deceased) and Mangal (deceased) left village Basudevpur in the morning for going to  Begusarai. At  about 9’O  clock,  when  they  were passing by  the ’bandh’  (embankment) near  village Koria  - Haibatpur, accused  Ram Padarath,  Ram Susgarath, Ramsubodh, Bipin, Dilip  (absconding) who  were armed  with pistols and ’Katta’ attacked  them, because  of the previous enmity with the informant  and his  brother. Boudhu  and Mangal who were walking ahead  of subhash  became their  Targets.  The  shot fired by  Ram Padarath  (Respondent  No.1)  injured  Boudhu. After walking  a few  steps he  fell down  in a nearby field where he  was given a blow by Ram Sugarath with a ’katta’ on his head.  He  died  immediately.  Mangal  who  had  started running away  from that  place shouting  ’Bachao Bachao’ was hit by  a shot  fired by Dilip. After covering some distance he fell  down and  at that time ram subodh (Respondent No.2) Vipin and  Ram Sugarath attacked him by giving ’katta’ blows and killed  him. Subhash  who was  walking  behind  his  two brothers was  able to  run away  from that  place before  he could be  attacked. He  straight went  to  Begusarai,  after catching a  bus on  the way,  got a complaint written by his brother-in-law who  was an  advocate  and  presented  it  at Begusarai police  Station. On the basis of this complaint an offence was  registered against all the five accused for the offences punishable  under Sections 147, 148 and 302/149 IPC and  against   Ram  Padarath   and  Dilip  for  the  offence punishable under Section 27 of the Arms Act.      As accused Dilip and Ramsugarath were found absconding, the trial proceeded against the remaining three accused. The prosecution examined  subhash (PW 7) Navia Rai (PW 1), vijay Kumar (PW  2), Biso  Kumar (PW  8) and Lal Kunwar (PW 11) as eye-witnesses. The  trial court  believed their  presence at

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the time  and place  of the  incident. It  held  that  their evidence did not Suffer from any infirmity and was truthful. On the  basis of  their evidence the three accused were held guilty for  the murders  of  Boudhu  and  Mangal.  All  were convicted under  Section 148  IPC. Accused  Ram Padarath was convicted under  Section 302  for the  murder of  Boudhu and under Section  302 read  with Section  34/149  IPC  for  the murder of  Mangal. He was also convicted under Section 27 of the Arms Act. The remaining two were convicted under Section 302 read  with Section  34/149 IPC for the murders of Boudhu and Mangal.  For causing  death of Mangal all the three were sentenced to suffer imprisonment for life and for the murder of Boudhu  accused Ram  Padarath was  sentenced to death and the other  two were  sentenced to  suffer  imprisonment  for life.      Aggrieved by  their conviction and the sentence imposed upon them they filed an appeal before the High Court. As Ram Padarath,  (Respondent  No.1)  was  sentenced  to  death,  a reference was also made to the High Court for confirming his death sentence.  The  High  Court  held  that  all  the  eye witnesses stood  contradicted by  the  medical  evidence  as regards the injury caused to Boudhu with a ’katta’, inasmuch as they  had deposed  that accused  Ram Sugarath had given a blow above  the neck of Boudhu and piece of flesh had bulged out from  that wound  while the medical evidence showed that the injury  caused by  a sharp  cutting weapon  was  on  the vertex and  not on  the neck of Boudhu and no piece of flesh had bulged  out from  that wound,  but some  brain substance could be  seen in  it. The High Court also held that all the eye witnesses  had failed to explain the incised wound found on the  head of  Boudhu and  that created  a  serious  doubt regarding their  claim  to  have  seen  the  incident.  With respect to  the injury  found on the thigh of Mangal the eye witnesses had  stated that  it was caused by a shot fired by Dilip when  he was  running away  from that  place. The High Court held  that the eye witnesses stood contradicted by the medical evidence  as the entry wound in that case would have been on the back side of the thigh of Mangal whereas in fact it  was  in  the  front.  The  High  Court  disbelieved  the explanation given  by the  eye witnesses that Mangal was hit by the  shot when  he had  turned back  for a  moment  while running away,  on the  ground that  it was highly improbable that Mangal  had the  courage to  turn back and see what was happening behind hi. The High Court also disbelieved the eye witnesses on  the ground that their evidence was improbable. It observed  that, if  the three brothers had left together, it was  not likely  that Subhash would be walking behind his two brothers keeping some distance. It also observed that if subhash was  with his  brothers than  the accused  would not have allowed  Subhash to  run  away.  The  High  Court  also disbelieved their evidence on the ground that no independent witnesses  from   the  locality   were     examined  by  the prosecution and  that indicated, that the eye witnesses were selected or got up witnesses.      The High  Court rejected  the evidence  of PWs. 2,7 and 11, also on the ground that they were partisan witnesses. It held that the evidence on record was sufficient to show that relations between  them and  the accused  were inimical  and even criminal  proceedings were  pending between  them.  The claim of  PWs. 1  and 3  to have  witnessed the incident was doubted on the ground that their names were not disclosed as eye witnesses in the FIR.      The High  Court disbelieved  the  evidence  PW  7  also because it  found that  what he  had deposed was improbable, his  conduct   was  unnatural   and  he  had  made  material

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improvements  while   giving  evidence.   Apart   from   the Improbabilities referred to earlier, viz that he was walking behind his  two brothers  at some distance and that he would not have  been spared  by the  accused if he was really with his two  brothers, the  other improbabilities  found by  the High Court were: 1)   that subhash  would not have failed to inquire from his      two brothers the reason why he was taken to Begusarai; 2)   if they  were really going to Begusarai then they would      have carried  some money  with them  but no  money  was      found from the pockets of Boudhu and Mangal; and 3)   the accused  would not  have failed  to prevent Subhash      from runing away by firing a shot at hi. The High Court      found his  conduct unnatural  because: (1)  instead  of      rushing back to his village which was nearby, to inform      his relatives  and friends,  he went  to Begusarai  (2)      even after reaching Begusarai he did not go to Boudhu’s      house to  inform his  widow and  other  family  members      about the  incident and  (3) instead  of rushing to the      police station,  he went  to his brother-in-law’s house      to get a complaint written by him. The High Court found      that PW 7 had made material improvements as regards the      number of  shots fired  by the  accused, the  parts  of      bodies of  Boudhu and  Mangal on  which  injuries  were      caused by  the and  the weapons  with which the accused      had caused  those injuries.  The High Court doubted his      evidence and  also the  prosecution case as a whole for      the reason that the complaint which was written down by      the brother-in-law  of PW  7  was  not  signed  by  the      brother-in-law, even  though he was present when it was      presented at the police station. The evidence of Navin Rai (PW 1) was also disbelieved on the ground that  if he  had   really gone  to  Koria  Chowk  for supplying milk  to Siyaram  Singh then he would have carried the empty  vessel while  returning but  no such  vessel  was produced by  him before  the police.  The evidence  of Bisho Kunwar (PW  8) was disbelieved by the High Court also on the ground that  if he had really gone to take medicine from the doctor at  Koria Haibatpur  then his  name would  have found place in  the  register  maintained  by  the  Doctor  and  a prescription of  medicine would  have been  given to him. As the witness  had not  produced the prescription nor his name appeared in  the register,  it was highly doubtful if he had really gone to take medicine as stated by him.      The learned  counsel appearing  for the State submitted that the  High Court  has failed to correctly appreciate the evidence of  the eye  witnesses and  the grounds given by it for discarding  their  evidence  are  flimsly.  The  learned counsel took  us through  the  FIR,  evidence  of  the  four witnesses and the medical evidence.  After going through the same we find that the submission made by the learned counsel deserves to be accepted.      We will  first consider the general reason given by the High Court  that all  the eye  witness Stood contradicted by the medical  evidence. The  eye witnesses had deposed that a ’katta’ blow  was given  by accused  Ram Sugarath  above the back side  of neck of Boudhu. Dr. Bhagat (PW 4) who had done the post mortem examination had found three injuries on him. Two were  bullet wounds  and 3rd was an incised wound on the vertax. Out  of the  two bullet  wounds, one  was any  entry wound and  other was  an exit  wound. The bullet had entered from the  left temporal  area and  gone out  from the  right occipital bone  one inch  behind the right ear. According to the doctor brain substance could be seen from that wound. As regards the  3rd injury  the doctor had stated that it could

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have been caused by a weapon like ’katta’. Thus according to the medical  evidence there  was no  injury on  the neck  of Boudhu which  could have  been caused by a katta blow. It is true that  no eye  witnesses had  stated that any katta blow was given  on the  head of  Boudhu. Thus  apparently the eye witnesses did  stand contradicted by the medical evidence as regards these  two injuries.  But what the High Court failed to appreciate  was that  all the  eye witnesses had seen the incident from  some distance.  After being  hit by  the shot fired by  Ram Padarath,  Boudhu had  walked a  few steps and then the  katta blow was given. Boudhu was surrounded by the accused at  that time. It was under these circumstances that the eye  witnesses had committed a mistake in describing the part of  the head  of Boudhu  on which  the katta  blow  had fallen. It  was an  impression which  they had  carried when they either  saw the blow being given or saw the injuries on Boudhu after  going near the place where he had fallen down. The wound  which was  found above  the neck  and behind  the right ear  was 1  inch long  3/4 inch wide and bone deep. It was almost  similar in size and shape to the wound which was found on the vertax. If under these circumstances, labouring under some  confusion they  stated that  the katta  blow had fallen on  the neck  of Boudhu, then on the basis of such an inconsistency or  discrepancy it was no proper for the court to raise  a doubt  regarding the  witnesses having  seen the actual assault  on Boudhu.  The High court also did not read and appreciate  the evidences of the eye witnesses correctly when it  stated that according to them some flesh had bulged out of  the wound  on  the  neck.  We  find  that  what  the witnesses had stated was that the muscle of that part of the neck was cut. What the Doctor had stated with respect to the wound was  that brain  substance could  be seen  inside  the wound. He  had not  stated that brain substance had come out of it.  It is  therefore difficult  to  appreciate  how  the evidence of  the eye  witnesses on this point can be said to be contradictory with the medical evidence. The reasoning of the High  Court that the eye witnesses had probably not seen the assault  on Boudhu  and when  they had subsequently gone near that  place had  seen the  three injuries on Boudhu and therefore, they were made to say that the injury on the neck was caused  by a katta blow given by Ram Sugarth thus stands vitiated. If  really the  witnesses had not seen the assault and had given their statement only after seeing the injuries on the dead bodies of Boudhu, as observed by the High Court, then they  would not  have committed such a mistake and they would have  stated that the katta blow was given on the head and not  on the  neck of  Boudhu. The  eye witnesses    have consistently stated  that Boudhu was hit twice - once by the shot fired  by Ram Padarath and the second time by the katta blwo given  by Ram  Sugarath, even  though there  were three injuries on  the head  of Boudhu. If the evidence of the eye witnesses is  read carefully,  it clearly appears that wheat they stated  was that  the shot  fired by  Ram Padarath  had caused an  entry wound on the forehead, the ’katta’ blow and caused an injury on the neck and the wound on the vertax was the exit  wound. No doubt, to that extent their evidence can be said to inconsistent with the medical evidence. But it is not an inconsistency of that type where one can say that the ocular  evidence  and  the  medical  evidence  cannot  stand together  and   which  would  justify  raising  of  a  doubt regarding the  truthfulness  of  the  evidence  of  the  eye witnesses. The  inconsistency  clearly  appears  to  be  the result of  confusion and  does not  indicate an  attempt  to describe the  incident by  a person  who had not really seen it. The  High Court therefore was not right in rejecting the

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evidence of  the eye  witnesses as  regards the  assault  on Boudhu, on these grounds.      The High  Court was  also wrong in disbelieving the eye witnesses, as  regards the  assault on Mangal. The reasoning of the  High Court  was that  if the shot fired by Dilip had hit Mangal  while running  away then in that case the bullet injury would  have been  found on the back side of the thigh of Mangal  and not  on its front side, and as the injury was found on  the front  side that  indicated that  the  version given by  eye witnesses was not correct. The High Court also observed that  it was  not believable  that mangal  had  the courage to  turn back and see what the assailants were doing after they  had killed Boudhu. What the High Court failed to appreciate was  that it  was not  a matter of courage but it was the  instinct of  self  preservation  which  could  have prompted Mangal  to look  back, as he was also being chased. His brother  was chased  and beaten  by the accused who were sworn enemies.  It was  for that  reason that he had started running away  from that  place. It  was therefore  not  only probable but  quite natural  for  him  after  covering  some distance to  look back  to find  out whether  he  was  being chased or  not. Therefore, the evidence of the eye-witnesses that  while   running  away  Mangal  was  shouting  ’Bachao’ ’Bachao’ and  the shot  fired by  dilip had  hit him  on his thigh, when  he had  turned back  for a moment while running was really  not inconsistent  with the  medical evidence and deserved to be accepted.      The High  Court also  rejected the  evidence of the eye witnesses on  the ground  that no independent witnesses from the nearby  place namely  Koria Haibatpur,  were examined by the prosecution.  According to  the High Court, it created a doubt regarding  the eye  witnesses being  genuine and their evidence being truthful. The High Court failed to appreciate that the  incident had  happened near  the embankment  at  a little distance  from Koria  Haibatpur  Chowk.  Nothing  was brought out  in the  evidence  of  any  of  the  prosecution witnesses, including  the investigating officer, to indicate that any  other person  was present  near the  place of  the incident or  that he  had seen   the incident. In absence of Such material on record, the High Court was not justified in assuming and  then proceeding  on the basis that independent witnesses must  have been  available and  yet they  were not examined by  the prosecution.  The prosecution  had examined two persons  Navin Rai  and Biso  Kunwar who were passing by the Koria  Haibatpur Chowk,  There is  nothing on  record to show that they were in any manner connected with subhash and his brothers  or inimical  to the  accused.  If  independent persons were  not willing  to tell  the police that they had seen the incident, the prosecution can not be blamed for not examining independent  persons as eye witnesses and veracity of the  evidence of  the witnesses examined as eye witnesses cannot be  doubted on  that  ground.  The  High  Court  was, therefore, not justified in disbelieving the evidence of the eye witnesses on this ground.      The High  Court rejected the evidence of PWs 2,7 and 11 on the  ground  that  they  were  partisan  witnesses  being inimical to  the faction of the accused. The evidence of the two remaining eye witnesses was discarded on the ground that their names were not mentioned in the FIR. We agree with the finding of  the High Court that relations of PWs. 2,7 and 11 with the  accused were  inimical and  therefore no  implicit faith could  be placed  on their  evidence. But  it was  not proper for the High Court to reject the evidence of PW 1 and PW 8  on the  ground that  their names were not mentioned in the FIR  as eye  witnesses. The  FIR was  lodged by PW 7. As

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soon as  he had  seen the  assault on  his  brother  he  had started running away from that place to save his life. Under these circumstances it was too much to expect that he should have noticed  the presence of these two witnesses and assume that they  had seen  incident. Though  the fact  that  their names did  not appear  as eye-witnesses  in the  FIR  was  a relevant circumstance,  the evidence  each of  these two eye witnesses was required to be appreciated on its own merits.      Apart from  the general  grounds stated above, the High Court rejected  the evidence  of PW  7 on the ground that it was improbable,  his conduct  was unnatural  and that he had made material  improvements while  giving  evidence  in  the Court. We  fail to  appreciate how  the circumstance that he was walking  behind his  brother at  some  distance  can  be regarded as  improbable  merely  because  they  had  started together from  village Basudevpur.  They had covered quite a long  distance   by  the  time  they  had  reached  Koria  - Haibatpur. Subhash  could have  remained behind  for various reasons. It  was not  an improbability and particularly when no explanation was sought from the witnesses in that behalf, correctness of  the evidence  of PW  7 should  not have been doubted on  the basis  of this  circumstance. The High Court also found  his evidence improbable on the ground that if he had really  gone along  with his  brothers then  the accused would not  have spared  him. If  subhash  was  at  a  little distance from  his brothers  when they were attacked then he being young  man could  have run away from that place before he  could  be  attacked.  What  the  High  Court  failed  to appreciate was that he was not spared by the accused but was able to  run  away  from  that  place  before  he  could  be attacked. It  was therefore not proper to doubt the evidence of PW  7 and  other eye  witnesses on  this ground. PW 7 had reached    Begusarai  within  a  short  time  and  lodged  a complaint and  that makes  his version  that he was with his brothers when  they were assaulted more probable.  If he had come to  know about the incident later, after learning about it from  somebody, then he would not have been able to lodge the  complaint   at  Begusarai  so  quickly.  Moreover,  his evidence  that   they  were   going  together  from  village Basudevpur to  Begusarai, deserved  to be  believed  as  the incident had  taken place  at Koria  Haibatpur through which they had  to pass  for going  to Begusarai.  PW 7 and Mangal were  staying  at  Basudevpur  and  Boudhu  was  staying  at Begusarai. Unless  Boudhu had earlier came to Basudevpur, as stated by  PW 7,  they could not have been together at Koria Haibatpur. The  High Court  failed to  appreciate that  this circumstance  provided   independent  corroboration  to  the evidence of PW 7. Another reason given by the High Court for holding his  evidence improbable is that he had not inquired from his  two brothers, the reason why he was being taken to Begusarai. What the High Court failed to appreciate was that he was  the youngest  brother and his eldest brother who had come from  Begusarai to Basudevpur had told him to accompany him as  he had  some work.  Under the circumstances, his not inquiring about  the reason  was not  unusual and it was not proper to consider his evidence improbable on this ground.      The Next  reason why  the  High  Court  Considered  the evidence of PW 7 improbable was that if they were going from Basudevpur to  Begusarai and  were required to travel by bus then they would have carried some money with them but at the time of  post mortem examination no money was found from the pockets of  either Boudhu  or Mangal.  What the  High  Court missed to  consider was  that the incident had happened at 9 A.M.  on   29.6.86  and  the  post  mortem  examination  was conducted at 9 A.M. on 30.6.86.  Therefore, the circumstance

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that no  money was found from the pockets of the deceased at the time  of post  mortem examination  should not  have been utilized by  the High Court to hold that the version of PW 7 was improbable. The very fact that the incident had happened at Koria Haitbatpur and  not at Basudevpur where Subhash was staying nor  at Begusarai where Boudhu was staying indicates that they  were going  from one place to the other. The High court also  failed to consider that there was no evidence to show that  Subhash also  had no  money  with  him  when  the incident happened.      The evidence  of PW 7 was considered improbable also on the ground that the accused would not have failed to prevent subhash from  running away  by firing  a  shot  at  him.  As already stated earlier Subhash was at some distance from his two brothers  when the incident had happened and had started running away  from the  place as  soon as  he had  seen  the assault on  his brothers.  Subhahsh being  a young man of 28 years of age must have covered quite a long distance by that time. It  was quite  probable that the accused did not think it fit  to fire a shot at him. It is difficult to appreciate how this  part of  the evidence  of the eye witnesses can be regarded as improbable.      It is  also not  possible to  agree  with  any  of  the reasons given  by the  High Court for holding the conduct of PW 7  unnatural. It si true that he did not rush back to his village after  the  incident  to  inform  his  relatives  or friends.  But  seeing  the  murderous  assault  on  his  two brothers by  their enemies, if PW 7 though it fit to rush to the police  station,  his  conduct  cannot  be  regarded  as unnatural. It  is not  unknown that  different persons react differently when  placed under  such circumstances.  For the same reason  his not  going to  Boudhu’s house to inform his widow about  the incident  cannot be  regarded as a piece of unnatural conduct. Nor was it proper to consider his conduct unnatural on  the ground  that before  reaching  the  police station he  had first gone to his brother-in-law’s house. He was a villager. he wanted to lodge a complaint. His brother- in-law  was  an  advocated.  If  under  these  circumstances instead of  proceeding straight  to the  police  station  he though it  fit to  approach his  brother-in-law  and  get  a complaint written  through him, then that cannot be regarded as unnatural      The High  Court discarded  the evidence of PW 7 also on the ground  that he  had made  material  improvements  while deposing before the court as regards the manner in which the incident had  happened. Before  the Court  he had stated the number of  shots fired  by the  accused and the parts of the bodies of Boudhu and Mangal on which injuries were caused by them. In  the FIR he had not given all these details. But he had  stated  in  the  FIR  that  while  he  was  going  from Basudevpur to  Begusarai along  with his  two  brothers  and while  they  were  passing  by  the  embankment  near  Koria Haibatpur, the  accused had  attacked his  two brothers  who were walking  ahead of him. He had also stated that injuries were caused  to them  by firing  a shot and by giving ’katta blows’. Thus  he had  stated the weapons with which injuries were caused  to  his  two  brothers.  By  stating  that  his brothers were  injured by the accused ’by firing a short’ he did not  mean that  only one  shot  was  fired,  as  wrongly understood by the High Court. It was not his version that by one shot  both his  brothers were  injured.   On seeing  the assault on  his two  brothers, he  had started  running away from the place. He might not have seen at that time how many ’katta’ blows  were given by the accused to his two brothers and on  which parts of their bodies injuries were caused. If

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the High  Court had  considered this aspect then possibly it would not  have held  that the  witness  had  made  material improvements while  giving evidence  in the  Court. The High Court disbelieved  his evidence  also on the ground that his brother-in-law Radhey  Shyam Singh  who was  an advocate and who had accompanied him to the police station had not signed the complaint.  It is  difficult to appreciate how on such a ground evidence  of PW  7 could  have been disbelieved. PW 7 was the  complainant and  he had signed the complaint. There was no reason for his brother-in-law to sign that complaint. it is  also difficult to appreciate how the High Court could regard Radhey  Shyam Singh as a material witness and draw an adverse inference  against the prosecution for not examining him as  a witness. Having considered his evidence carefully, we are  of the  opinion that  PW 7 was with his two brothers when the  incident happened  and that  what he  had  deposed before the  Court with respect to the assault by the accused was quite  true.   The grounds  given by the High Court, for disbelieving PW  7, except  the  ground  that  PW  7  was  a partisan witness, are not sustainable.      We are  also of  the view  that the  High Court was not right in  discarding the  evidence of eye witness Navin Rai. While it is true that his name was not mentioned in the FIR, no importance should have given to that omission, in view of the circumstances  in which  PW 7  had  left  the  place  of incident and lodged the FIR. The High Court was not right in considering  his  evidence  inconsistant  with  the  medical evidence. Earlier,  we have  pointed  out  how  the  medical evidence is  not inconsistent  with the evidence on a flimsy ground that he had not produced the empty vessel in which he had carried  milk for  supplying it  to Ramji  Singh. In the cross examination of witness nothing has been brought out to show that  there was  any reason  for him to falsely involve the accused.  He was  neither close  with the  family of the deceased nor inimical to the accused.  The trail court after close scrutiny of his evidence had held that his presence at the place  of incident  was quite  natural as he had gone to Koria Chowk as usual for giving milk to Ramji singh. For the same reason,  we hold  that the High Court committed a grave error in  not accepting  the evidence  of eye  witness  Biso Kunwar on the grounds that his name did not appear as an eye witness in  the FIR and that his evidence stood contradicted by the  medical evidence.  Like Navin  Rai  he  as  also  an independent witness  and his  evidence should  not have been discarded on  the ground that his name did not appear in the register of  the doctor,  to when  he had  gone  for  taking medicine and  that he  had  not  produced  the  prescription before  the  police.  He  could  have  hardly  realised  the importance of  producing the  same before the police. It was not a  case where  he was asked to produce it but had failed to do so.      On close scrutiny of the evidence and after hearing the submissions of  the learned  counsel. We  find that the High Court did  not appreciate  the evidence correctly and failed to take  into consideration  the reasons  given by the trial court for accepting their evidence. The discrepancies in the evidence noticed  by the  High Court  were considered by the trial court  and good  reasons were  given for accepting the evidence  of   PWs   1,7   and   8   notwithstanding   those discrepancies. The High Court gave undue importance to those discrepancies and without valid reasons doubted the presence of PWs 1,7 and 8 and discarded their evidence. The erroneous appreciation  of   the  evidence   by  the  High  Court  and consequent acquittal  has led to the miscarriage of justice. We, therefore,  allow these  appeals, set aside the judgment

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and order  passed by the High Court and restore the judgment and order  of conviction  passed by the trial court. We also restore the  order of  sentence passed  by the  trail court, subject to  this modification that for the murder of Boudhu. Accused Ram  Padarath, for  his consequent  conviction under Section 302,  shall suffer  imprisonment for life instead of the sentence  of death as we are of the opinion that this is not a  fit case  in which  death sentence  should have  been imposed upon  Accused  Ram  Padarath.  The  respondents  are directed to surrender to custody to serve out remaining part of their sentence.