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Rajasthan High Court · body

2001 DIGILAW 1380 (RAJ)

Ajai Singh v. State of Rajasthan

2001-08-30

JAGAT SINGH, N.N.MATHUR

body2001
Honble MATHUR, J.–The appellant Ajai Singh has been convicted of offence under Section 302 I.P.C. on the charge of the murder of his wife Mst. Sanjivni, by the judgment of the Additional Sessions Judge No.2, Jodhpur dated 11.3.1999 and sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/-; in default of payment to further undergo six months simple imprisonment. (2). The prosecution case as disclosed during the trial is that appellant Ajai Singh was married to deceased Mst. Sanjivni on 24.6.1993. The couple lived at Jodhpur. It is alleged that the appellant used to harass his wife Smt. Sanjivni. She was being subjected to assault many times. It is also alleged that he used to beat her particularly after receiving call from a lady named Nirmla @ Nimmi. On 13.3.1995 he assaulted and pressed her neck. This incident was reported by deceased Mst. Sanjivni to her parents at Ratlam on telephone. She was taken to Ratlam by her parents. She stayed there for 7 to 8 month. On the occasion of betrothal ceremony of Mst. Sanjivnis brother Shivendra, she came to Jodhpur on 12.5.1996. She was accompanied by one maid servant namely Manju. She also stayed at Jodhpur for 8 to 10 days. On return to Ratlam she also reported about the ill treatment of the appellant with Mst. Sanjivni. On 5.9.1996 Mst. Sanjivni was dropped at Ratlam by the appellant. On 1.11.1996 appellant Ajai Singh again visited Ratlam and forcefully brought Mst. Sanjivni to Jodhpur. On 4.11.1996 appellant had a talk on telephone with parents of Mst. Sanjivni at Ratlam. He told to Sanjivnis mother, PW-6 Smt. Jugnu, that everything will be settled by tomorrow. On 5.11.1996 a telephonic message was received from PW-4 Ashwini Kumar that appellant has killed Mst. Sanjivni. (3). On 5.11.1996, the appellant Ajai Singh presented himself at Police Station Shastri Nagar, Jodhpur at about 7:00 PM and lodged a self incriminating oral First Information Report. It will be convenient to read the oral F.I.R. reduced to in writing by PW-17 Bhim Singh, Incharge Police Station, Shastri Nagar, Jodhpur. The English version of the F.I.R. Exhibit P-27 is as follows:- ``A grandson was born in the family of my neighbour Chander Singh. For that reason I alongwith my wife Sanjivni were invited for dinner. It will be convenient to read the oral F.I.R. reduced to in writing by PW-17 Bhim Singh, Incharge Police Station, Shastri Nagar, Jodhpur. The English version of the F.I.R. Exhibit P-27 is as follows:- ``A grandson was born in the family of my neighbour Chander Singh. For that reason I alongwith my wife Sanjivni were invited for dinner. At about 6:15 PM I asked my wife to get ready for going to the house of neighbour Chander Singhji, on which Sanjivni stated that the will not go with him. First he must get her aborted to get rid of the child. My wife Sanjivni was pregnant for last four months. My wife Sanjivni also stated that she will not give birth to his child. A child of a mad man is also mad. After saying so she kicked him. On this I asked her that she can stoop down to such a level. There after there was altercation between them. Thereafter she slapped me and also assaulted on my private parts. She also caused injuries on my face by her bangles. She was abusing me. On this I lost my temper. I went inside the kitchen and picked up knife and inflicted injury and picked up a hammer lying in the lobby and I gave a blow on the head of Sanjivni, on account of which her head was smashed and she fell down and died. The dead body of Sanjivni is lying on the floor inside the room. The hammer is lying in the almirah near the dead body. Thereafter. I locked the house and put the key in the pocket and riding on scooter No. RJ-19 1M 6768 I have come to you. I have committed a crime for which I feel sorry. I have come to give information. (4). On this report, police made an entry in the rojnamcha at Item No. 224. A F.I.R. Case No. 275 for offence under Section 302 I.P.C. was also registered. PW-17 Bhim Singh, S.H.O. Police Station Shastri Nagar alongwith police party proceeded to the house of appellant Ajai Singh. At the house, Ajai Singh took out the key from his pocket and open the lock. He led the police party to show the dead body of Smt. Sanjivni. The site plan Exhibit P-6 was prepared. An inquest report Exhibit P-1 was prepared in the presence of the motbirs. At the house, Ajai Singh took out the key from his pocket and open the lock. He led the police party to show the dead body of Smt. Sanjivni. The site plan Exhibit P-6 was prepared. An inquest report Exhibit P-1 was prepared in the presence of the motbirs. Broken bangles and handle of broken knife were also seized from the spot. Appellant Ajai Singh was arrested vide Exhibit P-7 at about 11:30 PM. His blood stained cloths were seized, sealed and packed vide Exhibit P-5. The dead body was sent for autopsy. The seized articles were sent to the Forensic Science Laboratory. The articles were found stained with human blood. After usual investigation police laid chargesheet against the appellant for offence under Section 302 I.P.C. (5). The appellant was committed to the Court of Sessions for standing his trial on the charge of murder of his wife Mst. Sanjivni for offence under Section 302 I.P.C. The appellant pleaded not guilty for the charges levelled against him and claimed trial. The prosecution in order to bring home the guilt of the accused examined 17 witnesses and produced certain documents. The appellant in his statement under Section 313 Cr.P.C. denied the correctness of the prosecution evidence appearing against him. He denied the fact of lodging of F.I.R. at Police Station Shastri Nagar on 5.11.1996. He stated that his relations with his wife Mst. Sanjivni were cordial. There was no quarrel between them. He did not know any girl namely Nimmi. In those days he was not keeping well. He was under treatment. His in-laws have manufactured a false case against him. He also produced three slips pertaining to his treatment. After analysing the evidence the trial court found the charges levelled against the appellant proved. Accordingly, he convicted him for offence under Section 302 I.P.C. and sentenced in the manner noticed above. (6). It is contended by Mr. P.N. Mohnani, learned counsel for the appellant that the confession of the guilt by the appellant as contained in the F.I.R. is not admissible in the evidence being hit by Section 25 of the Evidence Act and as laid down by the Apex Court in Aghnoo Nagesia vs. State of Bihar (1). If this report is excluded the other evidence on record is insufficient to connect the appellant with the alleged crime. If this report is excluded the other evidence on record is insufficient to connect the appellant with the alleged crime. In alternate, it is submitted that the appellant has given only single blow in the heat of passion and as such it is not a case of murder but a case of culpable homicide not amounting to murder punishable under Section 304 Part II instead of Section 302 I.P.C. On the other hand, it is submitted by the learned Public Prosecutor that entire F.I.R. can not be excluded but only that much of the part which is hit by Section 25 of the Evidence Act can be excluded. He has supported the judgment of the trial court. (7). Before averting the rival contentions, it will be useful to take conspectus of the prosecution evidence. (8). PW-1 Chander Singh is the next door neighbour of the appellant. He is an old man aged 66 years and motbir of police memos prepared on the spot. In the cross-examination he admitted that he had not seen the appellant and his wife quarreling. He admitted that on the date of incident, he advanced a loan of Rs. 300/- to the appellant for purchasing medicines for his wife. He denied the suggestion that when police reached at the house of appellant, he was sitting inside the room. He also denied that the appellant and his wife were invited for dinner on the fateful day. He stated that dinner was arranged at his residence but he had not invited the appellant and his wife, however, he had asked them that he will send dinner for them. He has also stated that he visited the house of appellant only at the time when his father used to visit. (9). PW-2 Jai Narayan Singh is a formal witness. PW-3 Ranjeet Singh is the husband of the younger sister of the deceased Mst. Sanjivni. He has stated that appellant often used to quarrel with the deceased Mst. Sanjivni. He also stated that Mst. Sanjivni had told him that appellant Ajai Singh is having illicit relations with a girl named Nirmla. PW-4 Ashwini Kumar is the maternal uncle of the deceased Mst. Sanjivni. He has stated that the ill treatment of appellant with the deceased was well known. The fact that on 13.3.1995 appellant pressed the neck of the deceased Mst. Sanjivni had told him that appellant Ajai Singh is having illicit relations with a girl named Nirmla. PW-4 Ashwini Kumar is the maternal uncle of the deceased Mst. Sanjivni. He has stated that the ill treatment of appellant with the deceased was well known. The fact that on 13.3.1995 appellant pressed the neck of the deceased Mst. Sanjivni was conveyed to him on telephone by his sister Smt. Jugnu. On receiving this information he arrived at Jodhpur on 16.3.1995. He straightway went to the house of Mst. Sanjivni. Seeing him Sanjivni started weeping. She also shown him the marks of nails caused by the appellant Ajai Singh. She stated that the appellant pressed her neck in order to kill her. The First Information Report of the incident was also lodged at Police Station, Shastri Nagar. Thereafter, the appellant tendered apology and assured that he will not repeat the same in future. On receiving the information of the murder of Mst. Sanjivni, he also reached at Jodhpur at 6.11.1996. PW-5 Surendra Singh has also stated that relations between the appellant and the deceased Mst. Sanjivni were not cordial. (10). PW-6 Smt. Jugnu is the mother of the deceased Mst. Sanjivni. She has stead that right from the third day of the marriage, appellant stated beating deceased Mst. Sanjivni. She also stated that after 15-20 days of the marriage when her daughter Sanjivni visited her house, she complained about the ill-treatment of her husband. She also stated that her husband used to receive telephonic call from a girl named Nirmla @ Nimmi and after receiving Nirmlas call, he used to beat her. Many times appellant dropped her daughter at Ratlam. Whenever he visited Ratlam he used to consume liquor and beat Sanjivni. He also used to say that he will have to consume liquor for whole life as he has cheated someone. She also stated that Sanjivni became pregnant in the year 1994. She was aborted at the instance of the appellant. She has given details about the misbehaviour and torture by the appellant to her daughter Sanjivni. She also stated that her maid servant Manju, who had stayed with Sanjivni for 10 days at Jodhpur, on return, reported about the ill- treatment to Mst. Sanjivni by the appellant. She also stated that a personal diary of one lady Nirmla was received by post by Ajai Singh. She also stated that her maid servant Manju, who had stayed with Sanjivni for 10 days at Jodhpur, on return, reported about the ill- treatment to Mst. Sanjivni by the appellant. She also stated that a personal diary of one lady Nirmla was received by post by Ajai Singh. It was written in the said diary that Sanjivni cannot take her place. She also stated that Ajai Singh has visited four to five days prior to the incident. Inspite of her resistance Ajai Singh brought Sanjivni to Jodhpur. She also stated that Sanjivni expressed her desire to go with her husband Ajai Singh. She also stated that Sanjivni was having child of six months in womb. She also admitted that name of Ajai Singhs mother was Nirmala. However, she denied that Ajai Singhs mother is also known by name `Nimmi. She denied the suggestion that Ajai Singh was a mentally sick person. She also admitted that her daughter Sanjivni used to be called as Sahiba or Boochi as well. She identified the signatures of Sanjivni as Sahiba or Boochi on cards Exhibit D-2, D-3 and D-4. She also identified the hand writing of his son on envelop of his son D-5. She also stated that the letter Exhibit D-7 and D-8 is in the hand writing of his daughter Sanjivni. (11). PW-7 Sunil is a photographer. PW-8 Vijay Singh used to work with the father of the Sanjivni in the social welfare department of State of Madhya Pradesh. He has stated that he had seen Ajai Singh firing and abusing Sanjivni at Ratlam. He also stated that Sanjivnis mother told him that appellant harassed and tortured Sanjivni and she has sold her ornaments as there is always a demand of money by him. Ajai Singh also got Sanjivni aborted. In the cross-examination he has admitted that he did not say about the torture given by appellant to Sanjivni in his earlier statement Exhibit P-13. (12). PW-9 Shivendra Singh is the younger brother of the deceased. He has stated that Ajai Singh used to quarrel with his sister Sanjivni. He also stated that Sanjivni reported that telephonic calls from a girl named Nirmla are received and after that call appellant used to beat her. (12). PW-9 Shivendra Singh is the younger brother of the deceased. He has stated that Ajai Singh used to quarrel with his sister Sanjivni. He also stated that Sanjivni reported that telephonic calls from a girl named Nirmla are received and after that call appellant used to beat her. He also stated that on 13.3.1995 the father of Ajai Singh informed them on telephone that Ajai Singh has pressed the neck of Sanjivni and, therefore, they should immediately reach Jodhpur. Accordingly, he alongwith his mother and maternal uncle Ashwini Kumar reached at Jodhpur. Sanjivni was taken to Ratlam. Thereafter she stayed at Ratlam for longer period. She returned on 12.5.1996 on his engagement. The function was attended by Ajai Singh and his father as well. He stated that his mother put a proposal for divorce but that his not accepted by the father of Ajai Singh. He assured that he will try to bring settlement between them. There is a lengthy cross- examination. He has denied the suggestion that the appellant was a mentally sick person and he was under treatment. He admitted that Ajai Singhs mother name is Nirmla. He admitted the fact that he alongwith his mother took the appellant to Dr. Chauhan. However, he denied the suggestion that Dr. Chauhan told them that appellant was suffering from certain dangerous mental disease. He also admitted her signatures on Exhibits D-2, D-3 and D-4. He also admitted that letter Exhibit D-9 is in the hand writing of his sister Sanjivni. (13). PW-11 Ranjeet Singh, PW-12 Mahipal Pathak, PW-13 Virendra Singh and PW-15 Pharsaram are formal police witnesses. PW-17 Bheem Singh is the Investigating Officer. He has given the details of the investigation. (14). PW-10 Dr. N.S. Kothari has stated that he noticed injuries on the person of Ajai Singh vide Exhibit P-16 which are as follows:- 1. Abrasion (Healing) 3.0 x 0.5 cm just laterally right temple region of face just lateral to right eye. 2. Abrasion 0.5 x 0.2 cm just lateral angle of mouth right side. 3. Abrasion 1.0 x 0.2 cm just below right lower lip. 4. Abrasion 1.0 x 0.2 cm life side face maxillary. 5. Abrasion 4.0 x 0.2 cm left angle of mandible. 6. Abrasion 3.0 x 0.2 cm near injury No. 3. 7. Abrasion (Two) each 15.0 x 0.2 cm left lumber region. 3. Abrasion 1.0 x 0.2 cm just below right lower lip. 4. Abrasion 1.0 x 0.2 cm life side face maxillary. 5. Abrasion 4.0 x 0.2 cm left angle of mandible. 6. Abrasion 3.0 x 0.2 cm near injury No. 3. 7. Abrasion (Two) each 15.0 x 0.2 cm left lumber region. All the injuries were simple in nature caused by blunt object. The duration of injuries were two days. He also stated that the accused was complaining pain on his private parts. Though, no injury on the organ was visible clinically. (15). Here we may also deal with the defence witnesses produced by the appellant. DW-1 Dr. Devraj has stated that the medical prescriptions Exhibits D-15, D-16 and D-17 of the patient Ajai Singh aged 34 years are in his hand writing. As per the prescriptions the said patient was under his treatment during the period 9.6.1996 to 17.7.1996. The patient was suffering from depression. He was alcoholic and there was tendency to commit suicide and, therefore, he advised him for mental hospital. He pleaded ignorance if he was admitted in the mental hospital or not. He was mentally sick. However, he could not identify the appellant. He stated that as in routine he used examining number of patients in out-door every day, it was not possible for him to remember and identify the appellant. Further this witness has been examined with a view to support the plea under Section 84 I.P.C. The burden of proof lies on the accused with respect to the unsoundness of mind at the time of the occurrence. There is also distinction between the defence of insanity in the true sense caused by excessive drunkenness and the defence of drunkenness which produces a condition such that the drunken mans mind becomes incapable of forming a specific intention. There is a presumption that every person of the age of discretion is sane till the contrary is proved. The presumption under Section 84 is a rebuttable and the accused may rebut it by placing before the Court all the relevant evidence, oral, documentary or circumstantial. The crucial point of time of the mental condition is time of offence. Mere absence or inadequacy of motive is not conclusive evidence of insanity. The presumption under Section 84 is a rebuttable and the accused may rebut it by placing before the Court all the relevant evidence, oral, documentary or circumstantial. The crucial point of time of the mental condition is time of offence. Mere absence or inadequacy of motive is not conclusive evidence of insanity. The person taking the plea is required to produce evidence as to his conduct shortly prior to the offence and his conduct at the time or immediately afterwards as to the mental condition. In the instant case, the plea under Section 84 I.P.C. has been taken by the appellant half heartedly and has failed to rebut the presumption of a sane person. (16). DW-2 Rajesh Sahdev, DW-3 Pawan Mehta and DW-4 Ugam Singh are neighbours and they have stated that relations between the appellant and the deceased Mst. Sanjivni were cordial. They have also stated that the appellant did not arrive alongwith police at the house. DW-5 Nirmla is a lady aged 42 years. Perhaps she has been produced because of her telephone No. 628373. The prosecution at one stage has given the said telephone number of the lady whom the appellant suspected to have developed illicit relations. DW-5 Nirmla admitted her telephone number being 628373 but she denied any sort of relations with Ajai Singh. She pleaded complete ignorance as to his acquentence with Ajai Singh. She refused to identify the diary received by post written by her or belonging to her. She stated that she belongs to a respectable family. Her husband is a Doctor and she is having three children. The eldest is of 22 years old. She is a teacher in a private school. (17). As regards the documentary evidence, PW-6 Smt. Jugnu and PW-9 Shivendra Singh, mother and brother of the deceased Mst. Sanjivni respectively have admitted that deceased Mst. Sanjivni also used to sign as Sahiba or Boochi. They have admitted her signatures on Exhibit D-2 a birthday card, Exhibit D-3 greeting card for marriage anniversary, Exhibit D-4 greeting card for Diwali dated 4.11.1996 and Exhibit D-5 envelop. They also admitted that letters Exhibits D-7 and D-8 were in the hand writing of deceased Mst. Sanjivni. On the basis of these documents it is submitted that the relations between the husband and the wife were cordial. These letters only show that deceased Mst. Sanjivni was trying her best to normalise the relations. They also admitted that letters Exhibits D-7 and D-8 were in the hand writing of deceased Mst. Sanjivni. On the basis of these documents it is submitted that the relations between the husband and the wife were cordial. These letters only show that deceased Mst. Sanjivni was trying her best to normalise the relations. The reading of letters shows that he appellant used to show his temper. Thus, these documents in no way help the appellant. (18). The core question which arises for consideration is as to whether the statement of the accused as given in the First Information Report, confession the guilt is admissible in evidence and if not to what extent? In Aghnoo Negesias case, the Apex Court held that the confessional statement of the accused in F.I.R. is prohibited by Section 25. The Court also held that the confession includes not only the admission of the offence but all other admissions of incriminating facts related to the offence contained in the confessional statement. The court further held that no part of the confessional statement is receivable in evidence except to the extent that the ban of Section 25 is lifted by Section 27. The Apex Court in Bheru Singh vs. State of Rajasthan (2), held that confessional part of the First Information Report made by the accused to the police officer cannot be used against him in view of the ban of Section 25 of the Evidence Act but it could be used against him as evidence of his conduct under Section 8 and to the extent it is non- confessional in nature. Section 25 of the Evidence Act provides that in no circumstance a confession made before the Police is admissible in evidence against the accused making statement. The provision is based on the ground of public policy. Thus, where if a F.I.R. is given by accused himself to a police officer it is hit by Section 25 of the Evidence Act. No part of the confessional statement can be proved or received in evidence, except to the extent that it is permitted by Section 27 of the Evidence Act. Otherwise, also F.I.R. is not a sufficient evidence if it is only used for corroboration or contradiction. No part of the confessional statement can be proved or received in evidence, except to the extent that it is permitted by Section 27 of the Evidence Act. Otherwise, also F.I.R. is not a sufficient evidence if it is only used for corroboration or contradiction. However, the fact of giving the information to the police is admissible against him as evidence of his conduct under Section 8 of the Evidence Act and to the extent it is non-confessional in nature. It would also be relevant under Section 21 of the Evidence Act. (19). Bearing in mind the aforesaid principle of law and reading of F.I.R. we find that it discloses the motive for the murder and the manner in which the appellant committed the murder of his wife. In our opinion, the F.I.R. Exhibit P-27 is not a wholly confessional statement but only that part is admissible in evidence which does not amount to confession and is not hit by Section 25 of the Evidence Act. The fact that (1) the appellant lodged F.I.R. of the occurrence at about 7:00 PM (2) that they were getting ready at about 6:15 PM for attending dinner at the house of his neighbour Chander Singh does not amount to confess anything. Those statements are non-confessional in nature and can be used against the appellant under Section 8 of the Evidence Act except the said part of the statement and the rest part of the statement amounting to confess committing the crime is not admissible in Evidence. The another important incriminating circumstance is that the appellant was arrested on the same day vide Exhibit P-7. His cloths were seized vide Exhibit P-7. His cloths were seized vide Exhibit P-5. They were sealed and packed and vide Exhibit P-5. They were sealed and packed and sent to the Forensic Science Laboratory. The F.S.L. Report Exhibit P-28 shows that the blood stains on the pant and shirt were of human origin. The appellant has failed to give any explanation as to the presence of human blood on his cloths. PW-17 Bheem Singh has stated that the appellant lodged the F.I.R. of the incident. Thereafter he alongwith him reached at the house. The appellant took out the key from his pocket and opened the house. On opening, the dead body of Mst. Sanjivni was found lying in the pool of blood in the room. PW-17 Bheem Singh has stated that the appellant lodged the F.I.R. of the incident. Thereafter he alongwith him reached at the house. The appellant took out the key from his pocket and opened the house. On opening, the dead body of Mst. Sanjivni was found lying in the pool of blood in the room. Blood stained hammer was also found lying in an open almirah near the dead body. (20). Thus, from the prosecution evidence, following incriminating circumstances emerge against the appellant:- (i) At 6.15 P.M., appellant and the deceased Sanjivni were in the house getting ready to attend the dinner at the house of their neighbour P.W.1 Chander Singh; (ii) The appellant presented himself at the Police Station at about 7.00 P.M. and lodged the F.I.R. regarding the murder of his wife without providing any clue or expressing any suspicion; (iii) The appellant failed to explain the presence of human blood on his clothes at the time of his arrest; (iv) The appellant has failed to explain the presence of injuries on his person. The duration of injuries on the person of appellant as well as the deceased are almost of the same time; (v) Immediately after filing of the F.I.R., the appellant took out the key from the pocket and opened the door of the house in which the dead body of Sanjivni was found; and (vi) The death took place in the room in which the appellant and the deceased used to live together. Thus, the appellant alone had the exclusive opportunity to kill her. All the circumstances indicated above have been established by the prosecution by cogent evidence. Each of the circumstances is of conclusive nature. Taking all the circumstances together, from a chain pointing towards the guilt of the appellant and cumulative effective of the circumstances leads to no other inference but of guilt of the appellant. Thus, we hold that the prosecution has succeeded in establishing beyond any manner of doubt as to the involvement of the appellant in the crime. (21). The next question which arises for consideration is as to what nature of offence has been committed by the appellant? It is contended by the learned counsel for the appellant that a sudden quarrel had taken place between the husband and the wife and because of the abusive language used by the deceased Mst. (21). The next question which arises for consideration is as to what nature of offence has been committed by the appellant? It is contended by the learned counsel for the appellant that a sudden quarrel had taken place between the husband and the wife and because of the abusive language used by the deceased Mst. Sanjivni, the appellant in the heat of passion gave only one hammer blow which was lying nearby and the fact that he has not repeated the blow leads to the inference that the appellant had no intention to commit the murder. It is also submitted that the medical evidence does not show that the injury caused to the deceased was sufficient in ordinary course of nature to cause death. In view of this also, the conviction of the appellant under Section 302 I.P.C. is not sustainable. We find considerable substance in the contention raised by the learned counsel for the appellant. Everything was normal and the husband and wife were getting ready to attend a dinner party, abruptly there were not exchange of words between them. Evidence also shows that a single hammer blow without aiming at any particular part of the body of the deceased was given. The blow was not repeated. PW-16 Dr. Dharmendra who had performed the post mortem examination has not stated that the injury which was caused to the deceased was sufficient in ordinary course of nature to cause death. But for the sudden quarrel on that day, there was no other reason for the appellant to cause injury to his wife. Thus, no intention of causing murder by giving a hammer blow on the head of the deceased can be attributed on the appellant. However, he may have the knowledge that his act may cause death. In these peculiar facts and circumstances of the case, it is held that conviction of the appellant under Section 302 I.P.C. is not maintainable and it deserves to be convicted under Section 304 Part-II I.P.C. We are fortified in our view by decision of Apex Court in Ram Prakash Singh vs. State of Bihar (3). (22). We, therefore, partly allow this appeal. The conviction of the appellant under Section 302 I.P.C. is set aside and he is convicted under Section 304 Part II, I.P.C. He is awarded a sentence of seven years rigorous imprisonment and fine awarded by the trial court. (22). We, therefore, partly allow this appeal. The conviction of the appellant under Section 302 I.P.C. is set aside and he is convicted under Section 304 Part II, I.P.C. He is awarded a sentence of seven years rigorous imprisonment and fine awarded by the trial court. The appellant is in jail. He will serve out the remaining part of the sentence.