JUDGMENT 1. - Today, this D.B. criminal appeal has come up upon the application filed for suspension of sentence by accused-appellant Murad S/o Samma. At the time of arguments upon the said application, however, learned counsel for the appellant submitted that since he would argue the appeal only upon the quantum of sentence, therefore, he does not want to press the application for suspension of sentence and wants to argue the appeal itself to the said extent of quantum of sentence awarded to the accused-appellant. 2. The application for suspension of sentence moved by appellant Murad is accordingly dismissed as not pressed. 3. We have heard learned counsel for the appellant upon the question of quantum of sentence of life imprisonment awarded to the appellant by the trial Court for committing offence under Section 304 Part I, Indian Penal Code. along with fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. 4. Facts of the case indicate that one Mohan Lal filed a written complaint Ex.P-24 before the SHO, Police Station Sendara (District Pali), in which, it is alleged that his uncle's son Bhura Ram (deceased), who is mentally retarded, left the house several times without any information and, lastly, on 12.1.2000, he left the house while saying that he is going to the house of his (Mohan Lal's) daughter and son-in-law Arjun Singh at village Giri. Thereafter, on 14.1.2000, at about 2-3 A.M., he was informed by Lalit Jain and Duleh Raj that Bhura Ram (deceased) has been assaulted by Murad with lathi and Bhura Ram received injuries upon his head and back which resulted into serious injury upon the head of Bhura Ram. Lalit Jain and Duleh Raj informed him that this fact was communicated to them by Gulab and Abdul Mazid and, on this information, Lalit Jain and Duleh Raj went to Khokari where, in the agricultural field of Sikandar, Bhura Ram who lay on the ground was crying. At that time, Abdul Mazid and Ali S/o Asharaf were standing near the body of Bhura Ram. They informed Lalit Jain and Duleh Raj that one person was coming on foot from village Giri, at that time, near the house of Murad (accused-appellant), he was beaten by Murad and he fell down in the agricultural field of Sikandar. 5. At that time, Abdul Mazid and Ali S/o Asharaf were standing near the body of Bhura Ram. They informed Lalit Jain and Duleh Raj that one person was coming on foot from village Giri, at that time, near the house of Murad (accused-appellant), he was beaten by Murad and he fell down in the agricultural field of Sikandar. 5. Upon aforesaid information, the police registered F.I.R. against the accused-appellant Murad and investigation was commenced. After usual investigation, challan was filed against the accused-appellant before the Court of Judicial Magistrate, Bar, from where, the case was committed for trial to the Court of Sessions before Addl. District and Sessions Judge, Sojat City (District Pali). 6. After conducting the trial, learned trial Court found the accused-appellant guilty of offence under Section 302 Indian Penal Code. and passed sentence of life imprisonment against him along with fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. The said judgment was passed by learned Addl. Sessions Judge, Sojat (Camp Jaitaran) on 20.3.2002, against which, an appeal bearing D.B. Criminal Appeal No. 471/2002 was filed before this Court. 7. In the earlier appeal filed by the accused-appellant (D.B. Criminal Appeal No. 471/2002) against judgment dated 20.3.2002, the matter was finally heard by the Division Bench of this Court and vide order dated 8.4.2009, the Division Bench of this Court, comprising Hon'ble Mr. Justice N.P. Gupta and Honble Mr. Justice C.M. Totla, passed the following order : "Accordingly, the appeal is allowed. The impugned judgment dated 20.3.2002 is set aside. The matter is remanded to learned trial Court to complete the statement of PW-3 Mohan Lal, first informant and to record the statement of accused under Section 313, Criminal Procedure Code afresh as a whole or with respect to first informant PW-3 and thereafter, decide the matter afresh in accordance with law. Since the matter is very old being of year 2000, learned trial Court is directed to complete the aforesaid exercise utmost expeditiously. We are informed that witness PW-3 Mohan Lal is alive. Parties are directed to appear before the trial Court on 4.5.2000." 8. Since the matter is very old being of year 2000, learned trial Court is directed to complete the aforesaid exercise utmost expeditiously. We are informed that witness PW-3 Mohan Lal is alive. Parties are directed to appear before the trial Court on 4.5.2000." 8. As per the above order, the matter was remanded to the learned trial Court to complete the statement of PW-3 Mohan Lal and record the statement of accused-appellant, under Section 313, Criminal Procedure Code afresh as a whole and, thereafter, the matter may be decided afresh in accordance with law. 9. Upon receiving the above order by the learned trial Court, vide communication dated 27.6.2009, the learned trial Judge sought direction from this Court as to what further proceedings are to be done on account of death of PW-3 Mohan Lal who died prior to passing of the above order by the Division Bench on 8.2.2008. Said order was placed before the Division Bench comprising Hon'ble Mr. Justice A.M. Kapadia and Hon'ble Mr. Justice D.N. Thanvi on 10.9.2009 and following order was passed by the Division Bench ; "We have perused the communication of the learned Addl. Sessions Judge, Sojat, Distt. Pali dated 27.6.2009, whereby, the learned trial Judge has sought directions from this Court as to what further proceedings are to be done on account of the death of prosecution witness No. 3 namely Mohan Lal. We are surprised to read this communication as it appears that the learned trial Judge has not gone through the order of this Court passed in D.B. Criminal Appeal No. 471/2002, whereby, while allowing the appeal, the case was remanded to the learned trial Judge for recording the statement of prosecution witness No. 3 Mohan Lal first as it was not completed during the earlier trial and, thereafter, to record the statement of the accused under Section 313, Criminal Procedure Code and to decide the matter afresh in accordance with law. If a witness is expired, then, what will be its legal consequences, it is for the learned trial Court to consider and dispose of the case in accordance with law. This Court on the communication cannot give any direction as it will prejudice the trial. Accordingly, we direct the learned trial Court to dispose of the case on the basis of the evidence available on record, in accordance with law." 10. This Court on the communication cannot give any direction as it will prejudice the trial. Accordingly, we direct the learned trial Court to dispose of the case on the basis of the evidence available on record, in accordance with law." 10. After receiving the above order passed by the Division Bench on 10.9.2009, the learned trial Court while observing all the above facts decided the matter afresh and while taking into consideration the fact that PW-3 Mohan Lal, first informant died, again, convicted the accused-appellant for committing offence under Section 304 Part I, Indian Penal Code. instead of the earlier conviction made for committing offence under Section 302 Indian Penal Code. vide judgment dated 6.11.2009. The trial Court however again passed sentence of life imprisonment with fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months. 11. Learned counsel for the appellant submits that it is admitted position of the case that in the earlier judgment rendered by the trial Court on 20.3.2002 the accused-appellant was convicted for committing offence under Section 302 Indian Penal Code. and sentence of life imprisonment with fine of Rs. 2,000/-, in default of payment of fine, to further undergo rigorous imprisonment for two months, was imposed. That judgment was set aside by this Court for the reason that information Mohan Lal was not cross-examined and the said judgment/order was made by the Division Bench of this Court in D.B. Criminal Appeal No. 471/2002; and, after remand, again, the trial Court decided the matter afresh and, instead of holding the appellant guilty for commission of offence under Section 302 Indian Penal Code., the trial Court has convicted the appellant for committing offence under Section 304 Part I, Indian Penal Code. because complete statement of PW-3 Mohan Lal was not recorded. Learned counsel for the appellant vehemently argues that the learned trial Court has committed a grave error while again sentencing the accused-appellant with life imprisonment knowing it well that now, after remand, the trial Court found that accused-appellant has not committed offence under Section 302 Indian Penal Code. and has committed offence punishable under Section 304 Part I, Indian Penal Code.; meaning thereby, the learned trial Court found that as per evidence on record, offence under Section 302 Indian Penal Code. is not made out and, instead, offence under Section 304 Part I, Indian Penal Code. and has committed offence punishable under Section 304 Part I, Indian Penal Code.; meaning thereby, the learned trial Court found that as per evidence on record, offence under Section 302 Indian Penal Code. is not made out and, instead, offence under Section 304 Part I, Indian Penal Code. is made out and, thereby, the learned trial Court has found that it is case of culpable homicide not amounting to murder. Therefore, the learned trial Court itself came to the conclusion that offence under Section 302 Indian Penal Code. is not made out and, if it is so, then, obviously the learned trial Court was required to reduce the sentence; but, again, while convicting the accused-appellant for offence under Section 304 Part I, Indian Penal Code., instead of offence under Section 302 Indian Penal Code., the trial Court has maintained the sentence of life imprisonment which is disproportionate to the charge found to be proved against the appellant. In this view of the matter, it is prayed that sentence passed against the accused-appellant may be reduced to one already undergone. 12. Earlier accused-appellant remained in judicial custody from 14.1.2000 to 25.5.2000, and, thereafter, he is undergoing sentence since 20.3.2002, therefore, sentence awarded to the appellant may be reduced from life imprisonment to imprisonment already undergone, which, for more than 8 years. Further, it is submitted that fine imposed upon the accused-appellant which is amount of Rs. 2,000/- may also be reduced because the appellant is very poor person and is not in position to pay the amount of fine. 13. Per contra, the learned Public Prosecutor appearing on behalf of the State vehemently argues that no error has been committed by the trial Court while passing the sentence of life imprisonment for committing offence under Section 304 Part I, Indian Penal Code. and the accused appellant has rightly been convicted and sentenced by the learned trial Court because when the appellant is not challenging the finding of the trial Court, then, sentence awarded vide the impugned judgment for life imprisonment is not required to be interfered because the same is proportionate to the crime committed by the accused-appellant. 14. We have carefully considered the rival submissions made by both the parties in the background of facts and circumstances of the case. 15. 14. We have carefully considered the rival submissions made by both the parties in the background of facts and circumstances of the case. 15. Admittedly, the accused-appellant is not challenging the finding of the trial Court with regard to committing offence under Section 304 Part I, Indian Penal Code. but the fact remains that earlier the accused-appellant was convicted for offence under Section 302 Indian Penal Code. and, now, after remand, the same Court has found that accused-appellant has not committed offence under Section 302 Indian Penal Code. and has found that he has committed offence under Section 304 Part I, Indian Penal Code. and, that too, on the basis that complete statement of the information Mohan Lal, PW-3 was not recorded; meaning thereby, the trial Court is now of the opinion that accused-appellant has not committed offence under Section 302 Indian Penal Code. and has found that there was no motive of murder in this case, therefore, we are of the opinion that sentence awarded by the trial Court is disproportionate to the offence committed by the accused-appellant. Once the finding has been given after remand that accused-appellant has not committed offence under Section 302 Indian Penal Code. and offence committed at the hands of accused-appellant is punishable under Section 304 Part I, Indian Penal Code., then, obviously the sentence deserved to be reduced, but, it has not been done by the learned trial Court and, despite having appreciated the mitigating circumstance that there was no motive in this case, the trial Court has inflicted the same punishment of life imprisonment with fine of Rs. 2,000/-. 16. The Apex Court has, in various judgments, held that if offence under Section 302 Indian Penal Code. is not made out and accused-appellant was to be convicted for offence under Section 304 Part I, 16. The Apex Court has, in various judgments, held that if offence under Section 302 Indian Penal Code. is not made out and accused-appellant was to be convicted for offence under Section 304 Part I, Indian Penal Code. then, in the circumstances, the Supreme Court reduced the sentence to one already undergone by the accused. 17. The Apex Court has, in various judgments, held that if offence under Section 302 Indian Penal Code. is not made out and accused-appellant was to be convicted for offence under Section 304 Part I, Indian Penal Code. then, in the circumstances, the Supreme Court reduced the sentence to one already undergone by the accused. 17. In this case also, the accused-appellant has served out total period of sentence which is more than 8 years; more specifically, the accused-appellant remained in police/judicial custody from 14.1.2000 to 25.5.2000 and, later one, since 20.3.2002 he has been behind hars and the total period of custody, therefore, comes to more than 8 years and 2 months. 18. Therefore, in view of the judgments rendered by the Hon'ble Supreme Court, reported in (2006) 10 SCC 524 , Lachhman Singh v. State of Haryana and 2007 AIR SCW 4631, Harendra Nath Borah v. State of Assam , which were considered by this Division Bench in D.B. Criminal (Jail) Appeal No. 1293/2003, Vaisa Ram @ Banshi & Anr. v. State of Rajasthan, decided on 5.1.2010 and reduced the sentence of the accused-appellant and passed order for releasing him forthwith whereas, in that case, the accused-appellant remained in custody for more than 7½ years. 19. In this view of the matter, while following the above judgments, we deem it just and proper to reduce the sentence for committing offence under Section 304 Part I, Indian Penal Code. Accordingly, this appeal is partly allowed. Impugned judgment dated 6.11.2009 passed by the trial Court, after remand, is set aside to the extent of order of sentence of life imprisonment; and sentence of imprisonment is reduced to 8 (eight) years. Accused-appellant has served out sentence of imprisonment for 8 years and 2 months, therefore, now, accused-appellant is not required to pay fine of Rs. 2,000/-. Accused-appellant shall be released forthwith by the jail authorities, if not required in any other case.Appeal partly allowed. *******