Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 51 (MP)

Ajay Dubey v. State of M. P.

2014-01-09

A.M.KHANWILKAR, K.K.LAHOTI

body2014
ORDER Khanwilkar, C.J. -- 1. This petition, filed as PIL, takes exception to the appointment of Mr. R. Parshuram as State Election Commissioner of the State of Madhya Pradesh vide Departmental Order dated 17.9.2013. 2. Only three grounds have been urged before us. First ground, is that, in absence of Rules regarding procedure for appointment of State Election Commissioner, it is imperative for the competent Authority to observe fairness and transparency in the appointment process to comply with the mandate of Articles 14 and 16 of the Constitution of India and in absence thereof, the appointment process will be vitiated. 3. It is indisputable that the State Election Commissioner is appointed by the Governor, in view of Article 243K of the Constitution of India. The State Election Commissioner is appointed for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats in the State. No Rules have been framed by the State for the procedure to be followed for appointment of the State Election Commissioner. As aforesaid, there is neither provision in the Constitution nor any enactment or Rule in place, providing for the manner in which process to appoint the State Election Commissioner should be followed. That can be traced to Article 243K of the Constitution, which postulates that State Election Commissioner be appointed by the Governor. In the present case, it is common ground that the term of the outgoing State Election Commissioner had expired on 16.9.2013. As a result, the Chief Minister made recommendation to the Governor to appoint Mr. R. Parshuram as the State Election Commissioner for the State of Madhya Pradesh, on 17.9.2013. The Governor, on the same day, approved the said recommendation; and as a consequence whereof, the impugned Departmental Order dated 17.9.2013 came to be issued. 4. Reverting to the grievance of the petitioner, the question whether this appointment process can be said to be non-transparent, unfair, arbitrary or otherwise hit by Articles 14 and 16 of the Constitution of India, we agree with the submission of respondents that the subject appointment by the Governor, cannot be treated as appointment to any office under the State as such. For, the Election Commission is an autonomous body, created for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats in the State. For, the Election Commission is an autonomous body, created for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats in the State. For that reason, reliance placed by the learned counsel for the petitioner on the decision of the apex Court in the case of Comptroller and Auditor General v. Kamlesh Vadilal Mehta [ (2003)2 SCC 349 ], paragraphs 4 and 12 thereof in particular, will be of no avail. Further, since it is not an employment or appointment to any office under the State as such, the question of following procedure relating to such employment or appointment to office under the State by giving advertisement, inviting applications or public notice etc. That will have no application at all. It is, indeed, the subjective satisfaction of the competent Authority and finally the decision of the Governor to appoint a person as State Election Commissioner, that ought to prevail. The fact that the entire process has been concluded in one day cannot be the basis to hold that the decision so taken is vitiated, unless something more is attributed. 5. The second contention of the petitioner, is that, since Article 243K does not provide for specific procedure to be followed in the appointment of State Election Commissioner it should necessarily follow that the Governor is obliged to observe the mandate of Article 163 of the Constitution of India. In that, he ought to take that decision only on the aid and advise of the Council of Ministers with the Chief Minister as the head; and not singularly on the basis of the recommendation of the Chief Minister, as in the present case. Even this submission does not commend to us. As aforesaid, Article 243K postulates that the appointment of State Election Commissioner is to be made by the Governor. The argument clearly overlooks the efficacy of the sub-Article (1) of Article 163 of the Constitution of India read with rule 7 of the Rules of Business and Part II dealing with the directions issued under Rule 7 of the Business Rules in regard to Council cases or cases to be brought before the Council. Rule 7 of the rules reads thus : “Rule 7. Rule 7 of the rules reads thus : “Rule 7. Cases shall be brought before the Council in accordance with the general directions issued hereunder or by a special direction of : (i) the Chief Minister; (ii) the Minister-in-Charge of the case with the consent of the Chief Minister; or (iii) the Governor under Article 167(c) : Provided that no case is regard to which the Finance Department is required top be consulted under rule 11 shall, save in an emergency under the direction of the Chief Minister, be discussed by the Council of Ministers unless the Finance Minister is ready for its consideration.” The relevant part of Part II of the Rules referred to above reads thus : “Part II -- Direction issued under rule 7 of the Business Rules in regard to council cases or cases to be brought before the council. -- Under rule 7 of the Business rules, the Governor of Madhya Pradesh is pleased to issue the following directions as to the cases which shall be brought before the Council : The following cases shall be brought before the Council, subject to the proviso that if the Chief Minister considers any case to be so urgent as to necessitate the immediate issue of orders, he may direct the issue of orders at once, and when orders have been issued, the papers shall, without avoidable delay, be circulated and brought, before a meeting of the Council in accordance with the procedure laid down in supplementary instruction 18 under rule 13 : (i)……………. (ii) ……………. (iii) ……………. (iv) ……………. ........... (xv) Cases relating to the following appointments - 1. Chairman and Member of the Public Service Commission; 2. Advocate General; and 3. Lokayukt and Up-Lokayukt. …………… (xxxi) Any case or class of cases, not specified herein, which the Chief Minister may direct to be brought before the Council or to which the circumstances of the moment may have, given special importance.” 6. From the plain language of Clauses (i) to (xxxii) of rule 7 it is clear that the cases relating to the appointment of State Election Commissioner has not been expressly provided in this Rule to be placed before the Council, unlike, the appointments to the office of Chairman and Member of the Public Service Commission; Advocate General; and Lokayukt and Up-Lokayukt. In other words, no general direction is issued by the Governor to place the case for appointment of the State Election Commissioner before the Council. The validity of these Rules is not challenged in this petition. Therefore, Clause (xxxi), which is reproduced above, will also be of no avail to the petitioner. For, rule 7 opens with the statement that cases shall be brought before the Council in accordance with the general directions issued under the Rules or by a special direction of, inter alia, the Chief Minister. Thus understood, it is the discretion of the Chief Minister to refer the case relating to appointment of State Election Commissioner to the Council before it is forwarded to the Governor for consideration. Moreover, if this provisions are read in proper perspective, it is not possible to countenance the argument of the petitioner that it was obligatory on the part of the Governor to wait for or invite the aid and advise of the Council of the Ministers before taking a final decision in the matter. This position is further reinforced by Article 167 of the Constitution which reads thus : “167. Duties of Chief Minister as respects the furnishing of information to Governor, etc. -- It shall be the duty of the Chief Minister of each State -- (a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation; (b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and (c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.” 7. From the plain language of this Article it is noticed that the Chief Minister would be obliged to place the case relating to appointment of State Election Commissioner before the Council of Ministers, if the Governor had so required. From the plain language of this Article it is noticed that the Chief Minister would be obliged to place the case relating to appointment of State Election Commissioner before the Council of Ministers, if the Governor had so required. Somewhat similar proposition has been examined by the Division Bench of our High Court in the case of Ajay Dubey v. State of M.P. and others [Writ Petition No.7791/2012 (PIL) decided on 18.6.2012], namely, whether such direction ought to have been issued by the Governor being his subjective satisfaction, it is not open to the Court to sit over that judgment. That cannot be within the purview of judicial review to be undertaken by the Court. In the present case, the Governor without requiring the aid and advise of the Council of Ministers proceeded on the basis of the recommendation given by the Chief Minister. That procedure, per se, cannot be said to be either improper, irregular, much less illegal. Nevertheless the matter was placed before the Council of Ministers on 18.9.2013 in which the recommendation made to the Governor, which was the basis for decision of the Governor to appoint Mr. R. Parshuram as State Election Commissioner of Madhya Pradesh, came to be ratified. That decision of Council of the Ministers is not the subject matter of challenge in this writ petition. Once the decision having been ratified, nothing more was required to be done. In our opinion, therefore, the appointment of Mr. R. Parshuram as State Election Commissioner is neither irregular nor illegal, much less against any statutory or constitutional provision. It is not the case of the petitioner that the said appointee was disqualified to be so appointed, so as to invoke the power of issuing writ of quo warranto. 8. The third and the last contention urged before us, is that, the Chief Minister could have directly made recommendation only if it was an exceptional situation. We have already examined the sweep of rule 7. As found earlier, Rule 7 read with Part II of the Rules of Business, does not mandate that the case for appointment of State Election Commissioner is required to be first placed before the Council of Ministers before it is forwarded to the Governor by the Chief Minister. We have already examined the sweep of rule 7. As found earlier, Rule 7 read with Part II of the Rules of Business, does not mandate that the case for appointment of State Election Commissioner is required to be first placed before the Council of Ministers before it is forwarded to the Governor by the Chief Minister. In any case, the recommendation having been ratified by the Council of Ministers, nothing more is required to be done in the present Public Interest Litigation. 9. Accordingly, this petition is dismissed being devoid of merits. ............. 2014(2) JLJ 148 N.K. Gupta, J. Appu and another v. State of M.P. Criminal Appeal No.1625 of 1997 (Jabalpur) : against the judgment of Additional Sessions Judge, Khurai, passed in S.T. No.247 of 1996; Decided on 9.4.2014. Z.M. Shah and Nitin Saraf for appellants; S.D. Khan, Public Prosecutor for respondent/State. Penal Code, 1860 -- Ss.97 and 304 Part I -- quarrel between parties -- death of person in sudden attack in heat of passion without premeditation -- intention to kill not established -- but accused exceeded right of private defence -- conviction for offence under section 304 Part I of IPC appropriate -- accordingly sustained -- however, sentence reduced from 10 years to 7 years. Held : On the basis of the aforesaid discussion, it would be apparent that the prosecution has proved beyond doubt that the appellants assaulted the victim Jairam causing his death, but they did not intend to kill the victim, but they exceeded the right of private defence, and therefore the conviction directed by the trial Court against the appellants for the offence under section 304 Part I of IPC is appropriate and the same deserves to be sustained. (2001)1 SCC (Cri.) 998 and (2008)5 SCC 214 followed. 1998(2) JLJ 313 and AIR 1976 SC 2263 distinguished. (2001)1 SCC (Cri.) 998 and (2008)5 SCC 214 followed. 1998(2) JLJ 313 and AIR 1976 SC 2263 distinguished. naM lafgrk] 1860 & /kkjk 97 rFkk 304 Hkkx 1 & i{kdkjksa ds e/; >xM+k & vkos’k dh rhozrk esa fcuk iwoZ fparu ds vpkud geys esa O;fDr dh e`R;q & gR;k djus dk vk’k; LFkkfir ugha & ijarq vfHk;qDr us izkbosV izfrj{kk ds vf/kdkj dk vfrdze.k fd;k & naM lafgrk dh /kkjk 304 Hkkx 1 ds v/khu vijk/k ds fy, nks”kflf) leqfpr & rn~uqlkj ekU; & rFkkfi] naMkns’k 10 o”kZ ls ?kVkdj 7 o”kZ fd;k x;kA vfHkfu/kkZfjr % iwoksZDr foospuk ds vk/kkj ij ;g Li”V gksrk gS fd vfHk;kstu i{k us lansg ls ijs ;g lkfcr fd;k fd vihykFkhZx.k us ihfM+r t;jke ij geyk fd;k ftlls mldh e`R;q dkfjr gqbZ] ijarq mudk ihfM+r dh gR;k djus dk vk’k; ugha Fkk] ijarq mUgksaus izkbosV izfrj{kk ds vf/kdkj dk vfrdze.k fd;k rFkk blfy, fopkj.k U;k;ky; )kjk vihykFkhZx.k ds fo:) naM lafgrk dh /kkjk 304 Hkkx 1 ds v/khu vijk/k ds fy, funsf’kr nks”kflf) leqfpr gS rFkk ;g ekU; dh tkus ;ksX; gSA ¼2001½1 ,l lh lh ¼fdz-½ 998 rFkk ¼2008½5 ,l lh lh 214 vuqlfjrA 1998¼2½ ts ,y ts 313 rFkk , vkb vkj 1976 ,l lh 2263 izHksfnrA JUDGMENT 1. The appellants have preferred the present appeal against the judgment dated 31.7.1997 passed by the learned Additional Sessions Judge, Khurai in S.T. No.247/1996 whereby each of the appellant was convicted for the offence under section 304(I) of IPC and sentenced with ten years’ RI. 2. The prosecution case, in short, is that on 9.6.1996 at about 9:00 a.m. in the morning a dispute took place between the deceased Jairam and the appellants relating to removal of fencing between the fields of the parties near Village Vinayatha, P.S. Bandri, District Sagar. Both the parties had occupied some Government land by encroachment. In the incident the appellants assaulted the deceased Jairam by axes causing several injuries, and therefore he expired on the spot. Makhan (PW9) and Sukhrani (PW10), brother and mother of the deceased Jairam had also reached to the spot when the quarrel was going on and after appellant left they found that Jairam had expired, and therefore they went to contact Kotwar etc. and so many persons including Ganesh and Santosh, but nobody helped them. Makhan (PW9) and Sukhrani (PW10), brother and mother of the deceased Jairam had also reached to the spot when the quarrel was going on and after appellant left they found that Jairam had expired, and therefore they went to contact Kotwar etc. and so many persons including Ganesh and Santosh, but nobody helped them. Ultimately Makhan went to the Outpost Ujnet of the Police Station Bandri and lodged an FIR Ex.D-2 in the Rojnamcha. Thereafter a case was registered and the matter was referred to the Police Station Bandri. The police recovered the dead body of the deceased Jairam and sent it for its post-mortem. Dr. Kailash Datt Dubey (PW5) examined the dead body of the deceased Jairam and gave a report Ex.P-10. He found as many as eight incised wounds on his body caused on both hands, legs, head, abdomen and back. A fracture was found on the parietal bone and brain matter was also found cut and by such injuries the deceased died. After due investigation, the charge-sheet was filed before the trial Court, which was duly committed to the Court of Sessions and ultimately it was transferred to the learned Additional Sessions Judge, Khurai. 3. The appellants-accused abjured their guilt. They took a plea that initially the deceased Jairam assaulted the appellant Chhota by an axe and thereafter the appellants were falsely implicated in the matter. They examined the Head Constable Satya Gopal (DW1) to prove their report in Rojnamcha Ex.D-1. Also they examined Shivraj Singh (DW2) to show that the witnesses Makhan and Sukhrani were not present at the time of incident and they were intimated by one Durjan (PW3) about the incident. 4. The learned Additional Sessions Judge, Khurai after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above. 5. I have heard the learned counsel for the parties. 6. The learned counsel for the appellants has contended on two points only. Firstly, that Makhan and Sukhrani were not the eye-witnesses, and therefore it was not proved beyond doubt that the appellants assaulted the deceased Jairam. Secondly, the prosecution did not give an explanation to the injuries caused to the appellant Chhota, and therefore by provisions of section 97 of IPC, the appellants would have acquitted from the charge of section 304 of IPC and also because of their right of private defence. Secondly, the prosecution did not give an explanation to the injuries caused to the appellant Chhota, and therefore by provisions of section 97 of IPC, the appellants would have acquitted from the charge of section 304 of IPC and also because of their right of private defence. In support of his contention, the learned counsel for the appellants has placed his reliance upon the judgment of Hon’ble the apex Court in the case of Lakshmi Singh and others v. State of Bihar [ AIR 1976 SC 2263 ], and the judgment of Division Bench of this Court in the case of Mantram v. State of Madhya Pradesh [ 1998(2) JLJ 313 = 1997(2) MPLJ 7 ]. 7. On the other hand, the learned counsel for the State has submitted that due to FIR Ex.D-1 lodged by one of the appellants it would be apparent that they have admitted that their quarrel took place with the deceased Jairam, and therefore the testimony of the witnesses is believable. With a minor quarrel, it cannot be said that the appellants had a right of private defence to kill the deceased Jairam. The learned counsel for the State has placed his reliance upon the judgment of Hon’ble the apex Court in the cases of Ranjbaj Singh v. State of Punjab [(2001)1 SCC (Cri.) 998], and Udaikumar Pancharinath Jadhav alias Munna v. State of Maharashtra [ (2008)5 SCC 214 ]. 8. After considering the submissions made by the learned counsel for the parties, if the facts of the case are considered, then it was admitted that witness Durjan (PW3) was present at the spot at the time of incident. The prosecution examined the witness Durjan (PW3) as an eye-witness though he turned hostile, whereas defence took a plea that Durjan (PW3) was the person, who intimated the witnesses Makhan and Sukhrani, who were working at the place of Shivraj Singh (DW2). However, Durjan (PW3) has accepted that the accused Chhota and the deceased Jairam were quarrelling with each other and thereafter he went away from the spot and in the evening he was informed that Jairam was killed. Under such circumstances, he has stated that quarrel took place between the Jairam and Chhota in the beginning. However, Durjan (PW3) has accepted that the accused Chhota and the deceased Jairam were quarrelling with each other and thereafter he went away from the spot and in the evening he was informed that Jairam was killed. Under such circumstances, he has stated that quarrel took place between the Jairam and Chhota in the beginning. He tried to show that the appellant Appu went with him and when brother of the appellant Appu was in trouble, then it was not possible for the appellant Appu to go with the witness Durjan. It is alleged by the prosecution that witness Durjan (PW3) was present till total incident took place, but he turned hostile. However, when he could not see the incident where the accused was beating the deceased then he could not give such a news to the witnesses Sukhnand and Makhan. 9. Under such circumstances, by the testimony of the witness Durjan, it cannot be said that Makhan and Sukhrani could not reach to the spot. As argued by the learned counsel for the appellants the FIR Ex.D-2 was delayed by few hours whereas the FIR Ex.D-1 was lodged at 10:00 a.m. by the appellant Chhota at the Outpost Ujnet. However, Makhan (PW9) and Sukhrani (PW10) have stated that after the death of the deceased Jairam, they remained at the spot to look after the deceased Jairam and they were not in a position to understand what to do after the death of the deceased Jairam, and therefore they remained at the spot for sometime and thereafter they went to the various persons like Kotwar etc. so that Kotwar may accompany the witness Makhan in lodging the FIR but nobody helped them in going to the Outpost Ujnet. Sukhrani has clearly stated in para 3 of her statement that when they reached to the spot, Durjan (PW3) told to the appellants that the relatives of the deceased Jairam had arrived, and thereafter the appellants ran away. In the meantime, the deceased Jairam had expired. On the basis of evidence given by Makhan and Sukhrani, it would be apparent that sufficient time was required for Makhan to stay at the spot and then to search Kotwar or any helper so that he could go to the Outpost Ujnet. In the meantime, the deceased Jairam had expired. On the basis of evidence given by Makhan and Sukhrani, it would be apparent that sufficient time was required for Makhan to stay at the spot and then to search Kotwar or any helper so that he could go to the Outpost Ujnet. It would be apparent that the appellant Chhota himself lodged an FIR that the deceased Jairam assaulted him by an axe, and therefore it is admitted from the side of the appellants that the quarrel took place between the appellant Chhota and the deceased Jairam. Under such circumstances, if the witnesses claimed that they saw the incident just before its ending, then their testimony should be believed. Since an appropriate explanation was given by the witnesses Makhan and Sukhrani about the delay in lodging the FIR, therefore, by delayed FIR it cannot be said that the witnesses Makhan and Sukhrani did not reach the spot or they were not the eye-witnesses. The learned Additional Sessions Judge has rightly believed the testimony of the witnesses Makhan and Sukhrani, because their testimony was duly corroborated by the FIR Ex-D-2 lodged by Makhan and the post-mortem report of the deceased Jairam duly proved by Dr. Kailash Datt Dubey (PW5). Hence, on the basis of the substantial evidence given by Makhan and Sukhrani though they reached towards the end of the incident, it is proved that both the appellants had assaulted the deceased Jairam by axes and Jairam died at the spot. 10. As submitted by the learned counsel for the appellants, Dr. Kailash Datt Dubey (PW5) has proved the MLC report Ex.P-11 of the appellant Chhota and found a single incised wound on the left arm. It was true that an injury was found to the appellant Chhota and he had lodged an FIR Ex.D-1 within two hours of the incident in which he had alleged that the deceased Jairam assaulted him. It is true that the prosecution is required to explain the injuries caused to the appellant Chhota, but in the peculiar circumstances of this case when Makhan and Sukhrani reached to the spot at that time when the appellants were assaulting the deceased Jairam, and therefore they could not see that Jairam assaulted the appellant Chhota by an axe, and therefore it was not expected from the witnesses Makhan and Sukhrani to explain about the injuries to the appellant Chhota. At the most the eye-witness Durjan (PW3) could inform about the injury but he turned hostile. He told that he left the spot when quarrel started. He did not support the appellants’ case that it was the deceased Jairam, who assaulted the appellant Chhota by an axe. When the witness Durjan (PW3) has turned hostile, he could support the defence of the appellants but unfortunately he did not support that defence that the appellant Chhota was assaulted by the deceased Jairam by an axe. Moreover, no axe was found lying at the spot with the dead body of the deceased Jairam. However, the appellant Chhota had lodged an FIR Ex.D-1 and one incised wound was found on his hand, and therefore it was necessary for the prosecution to explain that injury. 11. The learned counsel for the appellants has relied upon the judgment of Hon’ble the apex Court in the case of Lakshmi Singh (supra), and the judgment of the Division Bench of this Court in the case of Mantram (supra), but looking to the factual position of this case, those judgments cannot be applied as it is in the present case, because for the sake of argument, it is accepted that the deceased Jairam assaulted the appellant Chhota by an axe on his hand and the appellant Chhota was alone at the spot, he could not kill the deceased Jairam thereafter and if both the appellants were present at the spot as proved by Sukhrani and Makhan and then they could overcome the deceased Jairam after one assault caused by him, and therefore right of private defence if at all accrued to the appellants, had ceased as the appellants overcame the deceased Jairam. But it would also be apparent that the deceased could not assault the appellant Chhota for the second time and both the appellants caused as many as eight injuries to the victim Jairam including fatal injury on his head causing his death, and therefore they killed the victim Jairam after their right of private defence had ceased. In other words it can be said that the appellants had exceeded the right of private defence, and therefore they could not be convicted for the offence under section 302 of IPC. But evidently certainly they were the guilty for the offence under section 304(I) of IPC. In other words it can be said that the appellants had exceeded the right of private defence, and therefore they could not be convicted for the offence under section 302 of IPC. But evidently certainly they were the guilty for the offence under section 304(I) of IPC. The ratio laid down by Hon’ble the apex Court in the case of Udaikumar Pandharinath Jadhav (supra), may be applied in the circumstances of the case. Also in the case of Ranjbanj Singh (supra), Hon’ble the apex Court found that the accused persons exceeded the right of private defence, and therefore held that the case of the accused persons fall within the purview of section 300 Exception (II) of IPC, and therefore the accused was convicted for the offence under section 304 of IPC. 12. Looking to the injury of the appellant Chhota it can be said that the right of private defence had initially accrued to the appellant Chhota against the deceased Jairam but the appellants failed to prove that they had a right of private defence due to property dispute. It was admitted by the parties that the appellants as well as the deceased were in possession of the encroached land and there was a fencing of plants between those lands. It was alleged that the deceased was removing that fencing, however if the deceased was doing so, then the appellants could contact the police to stop the deceased. The Investigation Officer did not find any portion of fencing disturbed from the spot, and therefore it cannot be said that the deceased Jairam removed the fencing created by the appellants between the fields of the deceased Jairam and the appellants. However, it would be apparent that the deceased Jairam himself went to the spot and there was no premeditation of the appellants. Since the victim Jairam assaulted the appellant Chhota, then the appellants attacked upon the deceased. Sudden attack in a heat of passion without premeditation resulting in death and injuries is apparent and it cannot be said that the appellants were intended to kill the deceased, and therefore in the light of the judgment of Hon’ble the apex Court in the case of Gurdial Singh and others v. State of Punjab [ (2011)2 SCC 768 ], the learned Additional Sessions Judge has rightly converted the conviction of the appellants for the offence under section 304(I) of IPC. 13. 13. On the basis of the aforesaid discussion, it would be apparent that the prosecution has proved beyond doubt that the appellants assaulted the victim Jairam causing his death, but they did not intend to kill the victim, but they exceeded the right of private defence, and therefore the conviction directed by the trial Court against the appellants for the offence under section 304 Part I of IPC is appropriate and the same deserves to be sustained. 14. So far as the sentence is concerned, it would be apparent that ultimately the appellants killed the deceased. In the case of Ranjbaj Singh (supra), Hon’ble the apex Court has maintained the sentence of seven years’ RI with some fine where the accused persons were convicted for the offence under section 304 (Part-II), however the facts of that case were similar to the present case. In that case, the accused persons exceeded the right of private defence, therefore in the light of the judgment of Hon’ble the apex Court in the case of Ranjbaj Singh (supra), the sentence directed by the trial Court may be reduced from ten years’ RI to seven years’ RI. There is no need to impose any fine, because the appellants are poor persons and fine cannot be recovered. If fine is imposed, then ultimately the appellants have to undergo the default sentence and then it would be of no advantage to the appellants if their sentence is reduced from ten years’ RI to seven years’ RI. Hence, it is not necessary to impose any fine upon the appellants. 15. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Their conviction for the offence under section 304(I) of IPC is hereby maintained, but their sentence is reduced from the period of ten years to the period of seven years’ RI. Their custody period during the trial and appeal shall be adjusted in the period of sentence. 16. The appellants are on bail. They are directed to surrender before the trial Court forthwith so that jail sentence may be executed. 17. A copy of this judgment be sent to the trial Court along with its record for information without any delay so that the trial Court may comply with the judgment of this Court.