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[A.F.R.]

Reserved On : 21.9.2022

Delivered on 30.9.2022

Court No. - 44

Case :- CRIMINAL APPEAL No. - 2455 of 2017

Appellant :- Shailesh And 3 Others

Respondent :- State of U.P.

Counsel for Appellant :- Siya Ram Pandey,Thakur Prasad

Dubey,Vijay Singh Sengar

Counsel for Respondent :- G.A.,Amit Kumar Chaudhary,Ashish

Kumar,Prashant Kumar Tripathi,Tapan Kumar Mishra

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Nalin Kumar Srivastava,J.

( Per Dr. Kaushal Jayendra Thaker,J.)

1.Heard Heard Sri Siya Ram Pandey, learned counsel for

appellants and Sri Vikas Goswami, learned counsel for State.

2.This appeal has been preferred by the accused-appellants

against the judgment and order dated 4.5.2017, passed by learned

Sessions Judge, Hapur in Sessions Trial No.71 of 2016 (State of Uttar

Pradesh Vs. Shailesh and others) arising out of Case Crime No.328 of

2015 convicting the accused – appellants under Sections 302 read

with 34 of Indian Penal Code, 1860 (in brevity 'IPC'), Police Station

Gardhmukteshwar, District Hapur and sentenced the accused-

appellants to undergo imprisonment for life with fine of Rs.5,000/-

and in case of default of payment of fine, further to undergo

imprisonment for a period of one month.

3.The facts of the present case are that on 31.7.2015, while the

informant and his father Babu Ram( deceased) were returning home

after closing their tea shop, they were intercepted by accused –

appellant-Raju, who asked them to pay Rs.150/-for the grocery items

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which were purchased by the deceased earlier. The accused- appellant

Raju was told that the amount will be paid the next day, hearing which

he got annoyed and abused the complainant-Sanjay, son of the

deceased and his father ( deceased). At this stage, while the

complainant–Sanjay and the deceased were proceeding on their way,

the accused- appellants surrounded them. The accused- appellants

then started beating and kicking the deceased, till he breath his last.

After killing the deceased, the accused- appellants fled away. Pursuant

to this an FIR, Case Crime No.202 of 2015 was registered by the

complainant-Sanjay against the accused- appellants, under Section

302 read with Section 34 of IPC. Consequently, the accused-

appellants were arrested.

4.On trial, the trial court vide order dated 4.5.2015 found the

accused – appellants guilty under Section 302 read with Section 34 of

IPC and sentenced them to imprisonment of life and a fine of

Rs.5000/- each.

5.After investigation, the charge-sheet u/s 302 I.P.C. against the

accused persons Shailesh, Mahadev, Kuldeep and Raju was filed. The

cognizance was taken on the charge-sheet by the concerned

Magistrate and the case was committed to the court of session under

section 302/34 I.P.C. The charge against the accused; Shailesh,

Mahadev, Kuldeep and Raju was ordered to framed, to which the

accused persons pleaded not guilty and wanted to be tried. The

prosecution was directed to produce the complete evidence in support

of their statement.

6.On being summoned, the accused-appellants pleaded not guilty

and wanted to be tried, hence, the trial started and the prosecution

examined about 9 witnesses who are as follows:

1Deposition of Sanjay@ Kalwa

29.4.2016

25.10.2016

PW1

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2Deposition of Sumit

7.6.2016

PW2

3Deposition of Yad Ram

11.8.2016

PW3

4Deposition of Dr. Gajendra Singh29.11.2016PW4

5Deposition of Jitendra Kardam29.11.2016PW5

6Deposition of Rajendra Singh 30.11.2016PW6

7Deposition of Arvind Kumar Nirwal30.11.2016PW7

8Deposition of Peetam Pal Singh

16.12.2016

PW8

9Deposition of Yatesh Kumar Puniya 20.1.2017 PW9

7.In support of ocular version following documents were filed

and proved:-

1F.I.R. 31.7.2015Ex.Ka.4

2General Diary 31.7.2015

3Written report 31.7.2015Ex.Ka.1

4Postmortum report 1.8.2015Ex.Ka.2

5Panchayatnama 31.7.2015Ex.Ka.5

6Final Form / Report 1.9.2015Ex.Ka.9

General diary Ex.Ka.3

Site plan Ex.Ka.5A

8.Learned counsel for the appellants has submitted that no

offence as alleged has been committed by the accused. It is further

submitted that the accused had no motive to do away with the

deceased and that the death of the deceased was due to petty dispute

which had arisen and there is a single blow. P.W.-1 the informant

Sanjay @ Kalwa was got examined on behalf of the prosecution who

has proved the tehrir Ex.Ka-1 and supported the prosecution case.

P.W.-2 namely is Sumit, the brother of informant who has been got

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examined. This witness too, has supported the prosecution case. P.W.-

3 Yaad Ram has been examined. He has corroborated the evidence of

PW-1 and PW-2.

9.P.W.-09 sub-inspector Yatesh Kumar Puniya has been examined

who is also the investigating officer of this case. He too has conducted

the investigation of the case who recorded the statements of sub-

inspector Arvind Kumar Nirwal, C/- Manoj Kumar and C/- Kardam,

who all got the post-mortem conducted and of the FIR scribe namely

C/- Rajendra Singh and Dr. Gajendra Singh who conducted the post-

mortem. After investigation, charge-sheet was forwarded against the

accused. He has verified his signature present on the charge-sheet.

Charge-sheet has been marked as Ext. ka-09.

10.After completion of the prosecution evidence, the statements of

the accused persons u/s. 313 Cr.P.C. were recorded, wherein denying

the prosecution version, they have stated that the witnesses have given

wrong and false statements due to enmity, and all of the accused

persons have also stated that the complainant has developed enmity

with them and their family and therefore they have been falsely

implicated in the aforesaid case, and that they didn't commit any

offence and they were not present at the spot and that they are

innocent. The accused persons claimed to adduce the evidence in

defence, but even after providing adequate time, no evidence in

defence was produced by the accused persons.

11.P.W.-1 the informant Sanjay @ Kalwa was got examined on

behalf of the prosecution who has proved the tehrir Ex.Ka-1 and

supported the prosecution case. P.W.-2 namely is Sumit, the brother of

informant who has been got examined. This witness too, has

supported the prosecution case. P.W.-3 Yaad Ram has been examined.

He has corroborated the evidence of PW-1 and PW-2.

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12.P.W.-09 sub-inspector Yatesh Kumar Puniya has been examined

who is also the investigating officer of this case. He too has conducted

the investigation of the case who recorded the statements of sub-

inspector Arvind Kumar Nirwal, C/- Manoj Kumar and C/- Kardam,

who all got the post-mortem conducted and of the FIR scribe namely

C/- Rajendra Singh and Dr. Gajendra Singh who conducted the post-

mortem. After investigation, charge-sheet was forwarded against the

accused. He has verified his signature present on the charge-sheet.

Charge-sheet has been marked as Ext. ka-09.

13.After completion of the prosecution evidence, the statements of

the accused persons u/s. 313 Cr.P.C. were recorded, wherein denying

the prosecution version, they have stated that the witnesses have given

wrong and false statements due to enmity, and all of the accused

persons have also stated that the complainant has developed enmity

with them and their family and therefore they have been falsely

implicated in the aforesaid case, and that they didn't commit any

offence and they were not present at the spot and that they are

innocent. The accused persons claimed to adduce the evidence in

defence, but even after providing adequate time, no evidence in

defence was produced by the accused persons.

14.Learned counsel for the appellant has relied on the decisions of

Apex Court in (a) Nishan Singh Vs. State of Punjab, 1994 0

Supreme (SC)273 (b) Manjeet Singh Vs. State of Himachal

Pradesh, 2014 LawSuit(SC) 341 (c) Rajju son of Jagveer Singh Vs.

State of Uttar Pradesh, 1992 0 Supreme(All) 546 (d) Pinkoo @

Jitendra Vs. State of U.P., 2022 0 Supreme (All) 166 (e)

VencilPushpraj Vs. State of Rajasthan, 1990 0 Supreme ( SC) 662

(f) Kala Singh @ Gurnam Singh Vs. State of Punjab, 2021

LawSuit(SC) 536 (g) Ramesh Alias Dapinder Singh Vs. State of

Himachala Pradesh, 2021 0 Supreme (SC) 152 and (h) Virender

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Vs. State of Haryana, 2019 LawSuit(SC) 2024 so as to contend that

the decision of imprisonment for life is bad and life could not be till

the last breath and the conviction under Section 302 read with Section

34 of IPC is not made out and the accused are entitled to be acquitted.

However, at the outset it is mentioned that on shifting their decisions

as they lay down law about lessor sentence precisely under Section

304 read with Section 34 of IPC

15.Learned counsel for the appellants after submitting for clean

acquittal submitted that he is not pressing this appeal on its merit, but

he prays only for reduction of the sentence as the sentence of life

imprisonment awarded to the appellants by the trial court is very

harsh. Learned counsel also submitted that appellant is languishing in

jail for the past more than five years.

16.Sri Vikas Goswami, learned counsel appearing on behalf of

State submits that presence of all the accused is proved as per the

evidence of PW- 1 and 2 and there is no denial of presence of the

accused. Learned counsel further submits that Section 302 read with

Section 34 of IPC is made out against all the accused – appellants.

17.As learned counsel for the appellant is not pressing this appeal

on its merit, but prays only for reduction of the sentence as the

sentence of life imprisonment awarded to the appellant by the trial

court is very harsh. Learned counsel also submitted that appellant is

languishing in jail for the past more than 5 years.

18.Considering the evidence of the witnesses and also considering

the medical evidence including post mortem report, there is no doubt

left in our mind about the guilt of the present appellants as far as death

of deceased is concerned.

19.However, the question which falls for our consideration is

whether, on reappraisal of the peculiar facts and circumstances of the

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case, the conviction of the appellant under Section 302 read with

Section 34 of I.P.C. should be upheld or the conviction deserves to be

converted under Section 304 Part-I or Part-II of the Indian Penal

Code. It would be relevant to refer Section 299 of the Indian Penal

Code, which read as under:

“299. Culpable homicide: Whoever causes

death by doing an act with the intention of

causing death, or with the intention of

causing such bodily injury as is likely to

cause death, or with the knowledge that he

is likely by such act to cause death,

commits the offence of culpable homicide."

20.The academic distinction between ‘murder’ and ‘culpable

homicide not amounting to murder’ has always vexed the Courts. The

confusion is caused, if Courts losing sight of the true scope and

meaning of the terms used by the legislature in these sections, allow

themselves to be drawn into minute abstractions. The safest way of

approach to the interpretation and application of these provisions

seems to be to keep in focus the keywords used in the various clauses

of Section 299 and 300 of IPC. The following comparative table will

be helpful in appreciating the points of distinction between the two

offences.

Section 299 Section 300

A person commits culpable

homicide if the act by which the

death is caused is done-

Subject to certain exceptions

culpable homicide is murder is

the act by which the death is

caused is done.

INTENTION

(a) with the intention of causing

death; or

(1) with the intention of causing

death; or

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(b) with the intention of causing

such bodily injury as is likely to

cause death; or

(2) with the intention of causing

such bodily injury as the offender

knows to be likely to

cause the death of the person to

whom the harm is caused;

KNOWLEDGE KNOWLEDGE

(c) with the knowledge that the

act is likely to cause death.

(4) with the knowledge that the

act is so immediately dangerous

that it must in all probability

cause death or such bodily injury

as is likely to cause death, and

without any excuse for incurring

the risk of causing death or such

injury as is mentioned above.

21.The deceased was aged 65 years. The postmortem of the

deceased was conducted.

22.On overall scrutiny of the facts and circumstances of the

present case coupled with the opinion of the Medical Officer and

considering the principle laid down by the Apex Court in the Case of

Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4

SCC 250 and in the case of B.N. Kavatakar and Another Vs. State

of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the

considered opinion that the offence would be one punishable under

Section 304 part-I of the IPC.

23.From the upshot of the aforesaid discussions, it appears that the

death caused by the accused was not premeditated, accused had no

intention to cause death of deceased, the injuries were though

sufficient in the ordinary course of nature to have caused death,

accused had no intention to do away with deceased, hence the instant

case falls under the Exceptions 1 and 4 to Section 300 of IPC. While

considering Section 299 as reproduced herein above offence

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committed will fall under Section 304 Part-I as per the observations of

the Apex Court in Veeran and others Vs. State of M.P. Decided,

(2011) 5 SCR 300 which have to be also kept in mind.

24.We can safely rely upon the decision of the Gujarat High court

in Criminal Appeal No.83 of 2008 (Gautam Manubhai Makwana

Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as

under:

"12. In fact, in the case of Krishan vs. State of Haryana reported in (2013) 3

SCC 280, the Apex Court has held that it is not an absolute principle of law that

a dying declaration cannot form the sole basis of conviction of an accused.

Where the dying declaration is true and correct, the attendant circumstances

show it to be reliable and it has been recorded in accordance with law, the

deceased made the dying declaration of her own accord and upon due

certification by the doctor with regard to the state of mind and body, then it may

not be necessary for the court to look for corroboration. In such cases, the dying

declaration alone can form the basis for the conviction of the accused. But

where the dying declaration itself is attended by suspicious circumstances, has

not been recorded in accordance with law and settled procedures and practices,

then, it may be necessary for the court to look for corroboration of the same.

13. However, the complaint given by the deceased and the dying declaration

recorded by the Executive Magistrate and the history before the doctor is

consistent and seems to be trustworthy. The same is also duly corroborated with

the evidence of witnesses and the medical reports as well as panchnama and it is

clear that the deceased died a homicidal death due to the act of the appellants in

pouring kerosene and setting him ablaze. We do find that the dying declaration

is trust worthy.

14. However, we have also not lost sight of the fact that the deceased had died

after a month of treatment. From the medical reports, it is clear that the deceased

suffered from Septicemia which happened due to extensive burns.

15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a

similar case of septicemia where the deceased therein had died in the hospital

after five days of the occurrence of the incident in question, converted the

conviction under section 302 to under section 326 and modified the sentence

accordingly.

15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as

under:

“18. The deceased was admitted in the hospital with about

60% burn injuries and during the course of treatment

developed septicemia, which was the main cause of death of

the deceased. It is, therefore, established that during the

aforesaid period of 8 days the injuries aggravated and

worsened to the extent that it led to ripening of the injuries

and the deceased died due to poisonous effect of the injuries.

19. It is established from the dying declaration of the

deceased that she was living separately from her mother-in-

law, the appellant herein, for many years and that on the day

in question she had a quarrel with the appellant at her house.

It is also clear from the evidence on record that immediately

after the quarrel she along with her daughter came to fetch

water and when she was returning, the appellant came and

threw a burning tonsil on the clothes of the deceased. Since

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the deceased was wearing a terylene cloth at that relevant

point of time, it aggravated the fire which caused the burn

injuries.

20. There is also evidence on record to prove and

establish that the action of the appellant to throw the burning

tonsil was preceded by a quarrel between the deceased and

the appellant. From the aforesaid evidence on record it

cannot be said that the appellant had the intention that such

action on her part would cause the death or such bodily

injury to the deceased, which was sufficient in the ordinary

course of nature to cause the death of the deceased.

Therefore, in our considered opinion, the case cannot be said

to be covered under clause (4) of Section 300 of IPC. We are,

however, of the considered opinion that the case of the

appellant is covered under Section 304 Part II of IPC.”

16. In the present case, we have come to the irresistible conclusion that the role

of the appellants is clear from the dying declaration and other records.

However, the point which has also weighed with this court are that the deceased

had survived for around 30 days in the hospital and that his condition worsened

after around 5 days and ultimately died of septicemia. In fact he had sustained

about 35% burns. In that view of the matter, we are of the opinion that the

conviction of the appellants under section 302 of Indian Penal Code is required

to be converted to that under section 304(I) of Indian Penal Code and in view of

the same appeal is partly allowed.

17. The conviction of the appellants - original accused under Section 302 of

Indian Penal Code vide judgment and order dated 19.12.2007 arising from

Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast

Track Court No. 6, Ahmedabad is converted to conviction under Section 304

(Part I) of Indian Penal Code. However, the conviction of the appellants –

original accused under section 452 of Indian Penal Code is upheld. The

appellants – original accused are ordered to undergo rigorous imprisonment for

a period of ten years and fine of Rs. 5000/- each in default rigorous

imprisonment for six months under section 304 (Part I) of Indian Penal Code

instead of life imprisonment and sentence in default of fine as awarded by the

trial court under section 302 IPC. The sentence imposed in default of fine under

section 452 IPC is also reduced to two months. Accordingly, the appellants are

ordered to undergo rigorous imprisonment for a period of ten years and fine of

Rs. 5000/-, in default, rigorous imprisonment for six months for offence

punishable under section 304(I) of Indian Penal Code and rigorous

imprisonment for a period of five years and fine of Rs. 2,000/-, in default,

rigorous imprisonment for two months for offence punishable under section 452

of Indian Penal Code. Both sentences shall run concurrently. The judgement

and order dated 19.12.2007 is modified accordingly. The period of sentence

already undergone shall be considered for remission of sentence qua appellants

– original accused. R & P to be sent back to the trial court forthwith."

25.In latest decision in Khokan@ Khokhan Vishwas Vs. State of

Chattisgarh, 2021 LawSuit (SC) 80 on which the court relies

wherein the facts were similar to this case, the Apex Court has

allowed the appeal of the accused appellant and sentenced under

Section 304 of IPC. The decision of the Apex Court in the case of

Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related

to kidnapping from legal guardian, wherein it was established that the

Court while respecting the concerns of both society and victim,

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propounded that the twin principle of deterrence and correction would

be served by reducing the period of incarceration already undergone

by the accused. In our case, this is not that gruesome matter where the

accused cannot be dealt with in light of all these judgments.

Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021)

3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will

also enure for the benefit of the accused.

26.The factual scenario as it emerges would go to show that the

incident occurred when the accused along with the deceased conveyed

that he would pay on the next day that infuriated the accused and

therefore they beat the deceased. The incident occuued out of a

quarrel.

27.As narrated herein above the decision of commission of

offence under Section 302 IPC cannot be concurred by us in view of

the As narrated herein above as on overall scrutiny of the facts and

circumstances of the present case coupled with the opinion of the

Medical Officer and considering the principle laid down by the Apex

Court in the Case of Tukaram and Ors ( supra) and we are fortified

in our view by the judgment of Apex Court in the case of B.N.

Kavatakar and Another ( supra) and therefore , we are of the

considered opinion that the offence would be one punishable under

Section 304 part-I of the IPC and not under Section 302 of IPC or

Section 304 Part -II of IPC.

28.In Mohd. Giasuddin Vs. State of AP, [AIR 1977 SC 1926],

explaining rehabilitary & reformative aspects in sentencing it has been

observed by the Supreme Court:

"Crime is a pathological aberration. The criminal can

ordinarily be redeemed and the state has to rehabilitate

rather than avenge. The sub-culture that leads to ante-social

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behaviour has to be countered not by undue cruelty but by

reculturization. Therefore, the focus of interest in penology

in the individual and the goal is salvaging him for the

society. The infliction of harsh and savage punishment is

thus a relic of past and regressive times. The human today

vies sentencing as a process of reshaping a person who has

deteriorated into criminality and the modern community has

a primary stake in the rehabilitation of the offender as a

means of a social defence. Hence a therapeutic, rather than

an 'in terrorem' outlook should prevail in our criminal

courts, since brutal incarceration of the person merely

produces laceration of his mind. If you are to punish a man

retributively, you must injure him. If you are to reform him,

you must improve him and, men are not improved by

injuries."

29.'Proper Sentence' was explained in Deo Narain Mandal vs.

State of UP [(2004) 7 SCC 257] by observing that Sentence should

not be either excessively harsh or ridiculously low. While determining

the quantum of sentence, the court should bear in mind the 'principle

of proportionality'. Sentence should be based on facts of a given case.

Gravity of offence, manner of commission of crime, age and sex of

accused should be taken into account. Discretion of Court in awarding

sentence cannot be exercised arbitrarily or whimsically.

30.In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166, the

Supreme Court referred the judgments in Jameel vs State of UP

[(2010) 12 SCC 532], Guru Basavraj vs State of Karnatak, [(2012) 8

SCC 734], Sumer Singh vs Surajbhan Singh, [(2014) 7 SCC 323],

State of Punjab vs Bawa Singh, [(2015) 3 SCC 441], and Raj Bala vs

State of Haryana, [(2016) 1 SCC 463] and has reiterated that, in

operating the sentencing system, law should adopt corrective

machinery or deterrence based on factual matrix. Facts and given

circumstances in each case, nature of crime, manner in which it was

planned and committed, motive for commission of crime, conduct of

accused, nature of weapons used and all other attending circumstances

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are relevant facts which would enter into area of consideration.

Further, undue sympathy in sentencing would do more harm to justice

dispensations and would undermine the public confidence in the

efficacy of law. It is the duty of every court to award proper sentence

having regard to nature of offence and manner of its commission. The

supreme court further said that courts must not only keep in view the

right of victim of crime but also society at large. While considering

imposition of appropriate punishment, the impact of crime on the

society as a whole and rule of law needs to be balanced. The judicial

trend in the country has been towards striking a balance between

reform and punishment. The protection of society and stamping out

criminal proclivity must be the object of law which can be achieved

by imposing appropriate sentence on criminals and wrongdoers. Law,

as a tool to maintain order and peace, should effectively meet

challenges confronting the society, as society could not long endure

and develop under serious threats of crime and disharmony. It is

therefore, necessary to avoid undue leniency in imposition of

sentence. Thus, the criminal justice jurisprudence adopted in the

country is not retributive but reformative and corrective. At the same

time, undue harshness should also be avoided keeping in view the

reformative approach underlying in our criminal justice system.

31.Keeping in view the facts and circumstances of the case and

also keeping in view criminal jurisprudence in our country which is

reformative and corrective and not retributive, this Court considers

that no accused person is incapable of being reformed and therefore,

all measures should be applied to give them an opportunity of

reformation in order to bring them in the social stream.

32. Since the learned counsel for the appellant has later not pressed

the appeal on merit, however, after perusal of entire evidence on

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record and judgment of the trial court, we consider that the appeal is

required to be partly allowed.

33.As discussed above, 'reformative theory of punishment' is to be

adopted and for that reason, it is necessary to impose punishment

keeping in view the 'doctrine of proportionality'. It appears from

perusal of impugned judgment that sentence awarded by learned trial

court for life term is very harsh keeping in view the entirety of facts

and circumstances of the case and gravity of offence. Hon'ble Apex

Court, as discussed above, has held that undue harshness should be

avoided taking into account the reformative approach underlying in

criminal justice system.

34.We are unable to agree with the submission of learned learned

A.G.A. as far as it relates to the finding of the court below that the

death was a premeditated murder and falls within provisions of

Section 300 of IPC and the sentence under Section 302 IPC is just and

proper. The reason for the same is that the deceased did not die and

insistence death had it been a premeditated murder, the injuries on the

body would have caused his immediate death. We are unable to

subscribe the submission of Sri Pandey that the matter would fall

under Section 323 of IPC. The evidence is so clinching that we cannot

accept the submission that the accused- appellants have not caused

the death though it is the matter of fact that no weapons and

instrument is used . There is a strong motive to do away that the

deceased was 65 years of age. P.W.-1 the informant Sanjay @ Kalwa

was got examined on behalf of the prosecution who has proved the

tehrir Ex.Ka-1 and supported the prosecution case. P.W.-2 namely is

Sumit, the brother of informant who has been got examined. This

witness too, has supported the prosecution case. P.W.-3 Yaad Ram has

been examined. He has corroborated the evidence of PW-1 and PW-2.

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35.While perusing the FIR and other fact, it cannot be said that

there was no common intention. All the accused had an unison after

the incident come to the place of offence and assaulted the deceased

though the incident occurred due to petty dispute which had arisen

and there is a single blow.

36.We are in agreement with the submission of Sri Vikas

Goswami, learned AGA that the presence of all the accused is proved

as per the evidence of PW- 1 and 2 and there is no denial of presence

of the accused. Section 302 read with Section 34 of IPC is made out.

37.On the overall scrutiny of the facts and circumstances of the

case coupled with medical evidence and the opinion of the Medical

Officer and considering the principle laid down by the Courts in

above referred case laws, we are of the considered opinion that in the

case at hand, the offence would be punishable under Section 304

(Part-I) IPC.

Punishment:

38.The main accused- Kuldeep has died during the pendency of

this litigation.

39.The accused is in jail since 4.5.2017. The Apex Court in such

cases has converted the conviction under Section 302 read with

Section 34 of I.P.C. to Section 304 Part I of I.P.C. which will come to

the aid of the accused.

40.In view of the aforementioned discussion, we are of the view

that the appeal has to be partly allowed, hence, appeal is partly

allowed.

41.Appellant-accused is in jail since 4.5.2017. On completion of

seven years of incarceration with remission is over for all the offences

and if fine is not deposited, the default sentence would start after the

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period of seven years. The accused- appellants shall be released on

completion of said period, if not required in any other case. The

accused-appellants would be entitled to all remissions. The judgment

and order impugned in this appeal shall stand modified accordingly.

42.Let a copy of this judgment along with the trial court record be

sent to the Court and Jail Authorities concerned for compliance.

Order Date :- 30.9.2022

Mukesh