JUDGMENT : P.K. Srivastava, J. 1. This appeal has been preferred against the judgment of conviction and punishment dated 25.8.1983 passed by Sessions Judge, Pilibhit in S.T. No. 116 of 1982, State Vs. Baburam & three others, under sections 302/34 and 323/34 IPC. By this judgment, each of the four accused were convicted for charge under section 302/34 IPC with imprisonment for life, and for the charge under section 323/34 IPC with rigorous imprisonment for one year; with direction that both the sentences shall run concurrently. 2. Prosecution case in brief is that on 5.2.1982 at about 5:30 p.m., complainant Mewa Ram was sitting in front of his house in village Dodpur, police station Madhotanda, District Pilibhit alongwith his grandfather Girdhari Lal and uncles Ram Autar, Tilak Ram and Umashankar. The four accused Babu Ram, Ram Lal, Prem Raj and Sita Ram armed with lathies and other weapons came there and attacked the complainant and his family members causing injuries to all of them. On alarm raised by them Prem Rajand others came on spot. Due to injuries causes by accused persons Ram Autar and Prem Raj fell down on the spot and died. Injuries were also caused to Mewa Ram, Tilak Ram and Umashankar. Thereafter accused escaped from spot. FIR of the incident was lodged on same day at 6:30 p.m. After investigation charge-sheet was filed against four accused persons. Sessions Court framed charges under section 302/34 and 323/34 IPC. The prosecution adduced oral as well as documentary evidences, after which opportunity to defence was given but no evidence was adduced. After affording opportunity of hearing, Sessions Judge, Pilibhit passed judgment dated 25.8.1983 by which all the four accused were convicted for offence under section 302/34 and 323/34 IPC and were sentenced to imprisonment for life for charge under section 302/34 and with imprisonment of one year for charge under section 323/34. All the four accused have preferred this appeal against judgment dated 25.8.1983 of the trial court. During pendency of appeal, three accused–appellants namely Babu Ram, Ram Lal and Prem Raj had died, and present appeal is being heard for sole surviving appellant, namely Sita Ram. 3. All the four accused have preferred this appeal against judgment dated 25.8.1983 of the trial court. During pendency of appeal, three accused–appellants namely Babu Ram, Ram Lal and Prem Raj had died, and present appeal is being heard for sole surviving appellant, namely Sita Ram. 3. Learned counsel for the appellant had contended that he had nothing to submit regarding facts relating to charged incident, which has been rightly found proved by trial court, but his submission is that even if prosecution case and evidence in that regard are taken to be true in its entirety, the conviction should have been made for offence of culpable homicide not amounting to murder punishable under section 304 IPC and not for the offence under section 302 IPC. His submission is that there is no error or infirmity in judgment of conviction and sentence for the charge under section 323/34 IPC, but in any case the conviction u/s 302/34 IPC should be modified. 4. Learned Additional Government Advocate refuted the contentions of appellant and submitted that judgment of conviction is not only correct on facts, but also on law. His submission is that all the accused persons had inflicted injuries on deceased persons resulting in the death, therefore there is no error in conviction for the charge under sections 302/34 and 323 IPC. He submitted that appeal should be dismissed in toto. 5. Prosecution had examined seven witnesses namely, PW-1 Mewaram, PW-2 Premraj, PW-3 Umashanker, PW-4 H.C. Govind Prasad Srivastava, PW-5 S.I. Mahendra Singh (I.O.), PW-6 Dr. R.R.P. Dwivedi and PW-7 Dr. S.C. Gupta. One formal court witness was also examined. Out of these seven witnesses, first three witnesses had been witnesses of fact and other four witnesses were formal witnesses. 6. PW-7 Dr. S.C. Gupta had performed medico-legal examination of three injured persons namely, Mewaram, Tilak Ram and Umashanker on 5.2.1982 between 8:00 to 8:30 p.m., after which he prepared medico-legal injury reports. He found ten injuries on body of Mewaram, out of which two were lacerated wound and others were contusions or abrasions. He found four contusions and one abrasion on body of Tilakram, and also four contusion on body of Umashanker at the time of examination. According to him, all injuries were fresh and simple and could have been caused by blunt and hard object, and could have been caused at about 5:30 P.M. on 7.2.1982. 7. PW-6 Dr. He found four contusions and one abrasion on body of Tilakram, and also four contusion on body of Umashanker at the time of examination. According to him, all injuries were fresh and simple and could have been caused by blunt and hard object, and could have been caused at about 5:30 P.M. on 7.2.1982. 7. PW-6 Dr. R.R.P. Dwivedi, Medical Officer, had performed post-mortem of dead body of Girdhari Lal and Ram Autar on 7.2.1982. He found one lacerated wound and one incised wound on dead body of Girdhari Lal and also found the fractured parital, temporal and occipital bones. He found one lacerated wound on head of Ram Autar and other four contusions and abrasions on his body, and also found that his parietal bone was fractured. He prepared postmortem reports and opined that these injuries could have been caused by hard and blunt object and death would have been caused on 5.2.1982 at about 5:00 to 5:30 p.m. 8. From perusal of medico-legal injury reports and postmortem reports, it has been proved that injuries to deceased and other injured were caused on 5.2.1982 at about 5:00 to 5:30 P.M. and head injuries of Girdhari Lal and Ram Autar were cause of their death. All injuries of all injured/deceased persons, except first injury of deceased Girdhari Lal were inflicted by hard and blunt object like club (lathi). One injury of Girdhari Lal (deceased) was incised which could have been caused by any sharp edged weapon, but fatal injury was that of blunt object resulting in fracture of bone of head region. Thus, from the testimonies of PW-6 and PW-7, which were rightly believed by the trial court, it was found that due to injuries caused by hard and blunt object like club, the two deceased had died and others were injured. Trial court had rightly believed that this was a case of causing deliberate death by person inflicting those injuries. 9. PW-4 H.C. Govind Prasad Srivasava was formal witness, who had proved preparation of chik-report (Ex. Ka-3) and G.D. (Ex. Ka-4) after registration of case on the basis of written report (Ex. Ka-1). He had also proved memorandum of recovery of cloths as Ex. Ka-2. 10. 9. PW-4 H.C. Govind Prasad Srivasava was formal witness, who had proved preparation of chik-report (Ex. Ka-3) and G.D. (Ex. Ka-4) after registration of case on the basis of written report (Ex. Ka-1). He had also proved memorandum of recovery of cloths as Ex. Ka-2. 10. PW-5 S.I. Mahendra Singh was investigating officer in this matter, who had proved inquest report, spot inspection report and stated that he had visited the spot and taken statement of witnesses, collected evidences and thereafter charge-sheet was submitted. He had proved documentary evidences (Ex. Ka-5 to Ex. Ka-14). His evidences proved that proper investigation was conducted in this matter. 11. PW-1 Mewaram and PW-3 Umashanker are injured eye witnesses. PW-2 Prem Raj was also eye witness. PW-2 had witnessed the incident when the physical altercation had already started. PW-1 and PW-3 were present on spot from the very beginning and they had stated that cause of dispute between their side and accused persons was the attempt of fixing of hut at a public place by accused person, which was being opposed by Village Pradhan Janki Prasad, the father of PW-1 and for which proceeding under section 133 CrPC was pending in court. These two witnesses had stated that at the time of incident, accused persons came on spot used foul language and thereafter started beating the five injured persons, including two victims. They stated that Sitaram had used Kanta (sharped edge tool) and other used lathi (club). The evidences of these witnesses of facts, especially of the two injured witnesses Mewaram and Umashanker, was believable, from which it is found that at the time of incident four accused appellants had visited on spot and caused injuries mainly by lathi (clubs), which was cause of death of the two deceased persons. Trial court had rightly appreciated the facts and evidence and held that injuries inflicted by four accused persons was cause of death of Girdhari Lal and Ram Autar. The findings reached by trial court in this regard on point of fact are correct and hereby confirmed. Thus all the accused were rightly convicted for inflicting simple injuries for charge under section 323/34 IPC and causing injuries which resulted in causing death. Therefore, at least, there is no error or illegality in conviction for offences under section 323/34 IPC passed by trial court. 12. Thus all the accused were rightly convicted for inflicting simple injuries for charge under section 323/34 IPC and causing injuries which resulted in causing death. Therefore, at least, there is no error or illegality in conviction for offences under section 323/34 IPC passed by trial court. 12. The main point to be considered is as to whether accused appellants were rightly convicted for the charge under section 302/34 IPC or whether their proved overt acts were limited up to offence of culpable homicide not amounting to murder punishable under section 304 IPC. 13. After perusal of original record and evidences available, we found that this finding of fact is not erroneous that the four appellants were involved in causing injuries to deceased victims and three injured victims. These injuries, due to which Girdhari Lal and Ram Autar died, were caused by blow of clubs (lathi) on vital part of heads of the deceased persons. But from the testimony of witnesses of facts, it is found that there had been existing dispute between the parties on point of encroachment of public land and fixing of hut on path-way that was being opposed by complainant side, due to which altercation arose and lathi blows were inflicted on five victims. Description of injuries show that most of the injuries were inflicted on non-vital part of the deceased and other injured persons and one lacerated injury on head of Girdhari Lal and one lacerated injury on head of Ram Autar were cause of their death. Thus, it appears that it was a case with preparation of causing simple injuries, but blows inflicted upon victims Girdhari Lal and Ram Autar on their heads due to which parital bone was fractured that become the cause of their death. 14. Culpable homicide is murder if the act which causes death is done with the intention of causing death or is done with intention of causing a bodily injury and injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. All murder is culpable homicide but not vice versa. It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. 15. All murder is culpable homicide but not vice versa. It is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. 15. From meticulous scrutiny of evidences in matter in hand, it is proved from the evidences that charged act was committed by appellants without intention of murder, without use of any such weapon, which would have caused death in all probability, and without any preparation. Appellants found the victims unarmed and inflicted injuries by lathi, which had resulted in death of two persons and injuries to others. From the evidence, it appears probable that the appellants had willfully caused injuries to the deceased and these injuries were inflicted without properly knowing the possibility of death, and were caused by weapons which are not dangerous in ordinary course. Apart from said two injuries on body of deceased persons, all other injuries on bodies of all five victims were simple in nature. Though the two injuries of deceased were grievous in nature, but there was every possibility that injuries were caused by appellants without intention of causing death, but they were such, especially on vital part like head that death had resulted. This matter, therefore, comes within Exception1 of section 300 IPC. Therefore, the appellants are found guilty of act of culpable homicide not amounting to murder, which is punishable under section 304 IPC. 16. The maximum punishment for the offence u/s 304 IPC is imprisonment for life. It has to be considered as to whether sentence of life imprisonment awarded in the present case by the trial court is appropriate. It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. 17. In “Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 ” Hon'b'e Apex Curt had held that:- “it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence.” 18. Only because Section 304 IPC provides for life imprisonment as the maximum sentence, does not mean that the Court should mechanically proceed to impose the maximum sentences, more particularly when the incident had occurred suddenly, during the heat and passion of any domestic quarrel, without pre-meditation or pre-planning. Now the matter is limited to sentence for offence u/s 304 IPC, and we have to consider about the appropriate sentence for the appellants in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the accused has to be considered. 19. So far aggravating a circumstance relating to the punishment for culpable homicide is concerned, from the evidence of the case, it is clear that appellant had deliberately caused injuries on five unarmed persons, due to which two persons had succumbed to injuries. 20. But at the time of hearing, it has been found that initial intention of the appellants was not to cause death but to inflict injuries because of earlier enmities. Apart from it, the incident in question is of 5.2.1982 and since then appellants have been running pillar to post, which in itself is a punishment. The age of appellants Baburam, Ram Lal, Prem Raj and Sita Ram in year 1982 at the time of recording of statement were 35 years, 55 years, 70 years and 20 years respectively. Ram Lal and Prem Lal have died and Sita Ram is the sole surviving appellant. Now, with passage of time of more than 34 years, the 22 years old accused-appellant Sitaram at the time of trial, has attained age of about 55 years. He had no other criminal history and not reported to have committed any other criminal or overt act during this long period since the charged incident. Therefore it appears appropriate that apart from modification of conviction, his punishment should also be mitigated. 21. Appeal of appellants Baburam, Ram Lal, Prem Raj stands abated due to their death. 22. He had no other criminal history and not reported to have committed any other criminal or overt act during this long period since the charged incident. Therefore it appears appropriate that apart from modification of conviction, his punishment should also be mitigated. 21. Appeal of appellants Baburam, Ram Lal, Prem Raj stands abated due to their death. 22. In view of the facts and discussion, this appeal is partly allowed. The order of conviction to sole surviving appellant Sitaram under section 302/34 IPC is hereby modified to under section 304/34 IPC and the sentence of imprisonment for life is modified to rigorous imprisonment for 10 years. The sentence of one year rigorous imprisonment for the charge under section 323/34 IPC is confirmed. Both the sentences shall run concurrently. 23. Let a copy of this judgment be sent to Sessions Judge, Pilibhit for ensuring compliance.