JUDGMENT : NALIN KUMAR SRIVASTAVA, J. 1. Heard Sri Kamta Prasad for the accused appellant-Gaya Prasad Tiwari and Sri Kameshwar Singh for Mukundi Singh. Sri Vikas Goswami and Sri N.K. Srivastava for the State. 2. By way of these appeals, the appellants-Gaya Prasad Tiwari and Mukundi Singh have challenged the judgment and order dated 22.12.2012 passed by Addl. Sessions Judge, Court No. 2, Hamirpur in Case Crime No. 572/2008, S.T. No. 234/2008, State vs. Gaya Prasad Tiwari and Another whereby appellants were convicted under Section 304 (1) read with Section 34 and awarded sentence of life imprisonment under Section 304 (1) read with Section 34 IPC coupled with fine of Rs. 10,000/- and in case of default of payment of fine, appellants would undergo one year additional sentence. 3. The appellant-Mukundi Singh has been enlarged on bail by this Court and during the trial also he was on bail. Gaya Prasad Tiwari is in jail for more than 14 years. 4. The brief facts of the case as culled out from the record and proceedings and the F.I.R. are that a first information report was lodged by one Krishna Kumar Diwedi on 9.4.2008 at 7:30 a.m. against appellants being registered as Case Crime No. 572 of 2008 for commission of offence under Section 304 IPC with regard to the incident dated 8.4.2008 at 11:30 p.m. 5. S.I. Siya Ram took up the investigation and kept investigation into motion. The Investigating Officer visited the spot, prepared site plan, recorded statements of the eye witness and witnesses and after completing investigation submitted charge sheet against both the accused. 6. The matter being triable by court of sessions the learned Magistrate committed the case to court of sessions. 7. The learned trial court summoned the accused and framed charge under Section 304 Part-I read with Section 34 IPC, which was read over to the accused. The accused denied the charge and claimed to be tried. 8. The prosecution so as to bring home the charge, examined 5 witnesses, who are as under: 1. Krishna Kumar PW-1 2. Ram Teerath PW-2 3. Dr. R.K. Misra PW-3 4. Siya Ram PW-4 5. Mahendra Singh PW-5 9. The following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext.Ka-14 2. Written report Ext.Ka-1 3. Recovery memo of blood stained and plain earth Ext.Ka-4 4. Post mortem report Ext.Ka-2 5. Site-plan Ext.Ka-6 6. Krishna Kumar PW-1 2. Ram Teerath PW-2 3. Dr. R.K. Misra PW-3 4. Siya Ram PW-4 5. Mahendra Singh PW-5 9. The following documents were produced and contents were proved by leading evidence: 1. F.I.R. Ext.Ka-14 2. Written report Ext.Ka-1 3. Recovery memo of blood stained and plain earth Ext.Ka-4 4. Post mortem report Ext.Ka-2 5. Site-plan Ext.Ka-6 6. Site-plan (II) Ext.Ka-3 7. Report of Vidhi Vigyan Prayogshala Ext.Ka-16 8. Panchayatnama Ext.Ka-9 9. Charge-Sheet Ext.Ka-8 10. After completion of prosecution evidence, both the accused were examined under Section 313 Cr.P.C. The accused did not examine any witness in defence. 11. Learned Counsel for the appellants submits that the punishment is too harsh as there was a single blow which caused injury to deceased. The parties are inter related. There was no premeditated action so as to do away with the deceased. There was an altercation, it is the say of the prosecution witness that Gaya Prasad Tiwari went in home and brought a sharp edged weapon from the house and inflicted the blow to the deceased. The witnesses also have in their occular version opined that had proper treatment being made available to the deceased in time, the deceased would have survived. The role assigned to Mukundi Singh was to see that the deceased fell to ground from the motorcycle he was driving. Learned Counsel has relied on the following judgments: (i) Surain Singh vs. State of Punjab, 2017 Law Suit (SC) 374 (ii) Atul Thakur vs. State of Himachal Pradesh, 2018 (0) Supreme (SC) 46 (iii) Ramroop vs. State of U.P. Jail Appeal No. 4722 of 2015, dated 22.11.2021 So as to contend that the accused have been falsely implicated and in alternative there was no premeditated action whereby the trial court convicted the accused with aid of section 34 of I.P. Code. 12. The learned Counsel Sri Kameshwar Singh submits that there were no injury marks on the body of deceased which would show that the deceased was assaulted and that Mukundi Singh had caught hold of the deceased. 12. The learned Counsel Sri Kameshwar Singh submits that there were no injury marks on the body of deceased which would show that the deceased was assaulted and that Mukundi Singh had caught hold of the deceased. The version of PW-2-Ram Teerath does not find place in the evidence of PW-1-Krishna Kumar, neither are these facts mentioned in the F.I.R. Learned Counsel has relied on the following judgments to press the submission that if there are contradiction in the testimony, the accused be given benefit of doubt: (i) Virender vs. State of Haryana, Criminal Appeal No. 1339 of 2010, dated 16.12.2019 (ii) Ezajhussain Sabdarhussain vs. State of Gujarat, 2019 (0) Supreme (SC) 163 (iii) Mohan Singh and Another vs. State of Punjab, AIR 1963 SC 174 (iv) Mukesh vs. State of Madhya Pradesh, 2022 (0) Supreme (SC) 33 13. It is further submitted by Sri Kameshwar Singh that this is not a case where there is common intention to do away with the deceased said to be presented when incident occurred. It is further submitted that out of 4 eye-witnesses, none has tried to save the deceased and the prosecution has misreadibly failed and they have not purposely examined these witnesses. It is further submitted that he seeks clean acquittal of the accused, who is wrongly roped in this case as it is stated in the F.I.R. that the deceased came on the motorcycle and Mukundi Singh pulled him and the deceased fell down. If the vehicle was already there, there was no question for searching the vehicle to take the injured to the hospital. The version of witness causes doubt about prosecution case. The F.I.R. is lodged after a considerable delay. PW-1 Krishna Kumar has remained silent as far as catching hold of the deceased by Mukundi Singh is concerned. 14. Sri Vikas Goswami, learned A.G.A. has submitted that the punishment is just and proper and no retributive theory is required to be applied as the injury was on the very vital part of the body of the deceased and Mukundi Singh is also equally liable as there was common intention to commit the offence and to do away with the accused. 15. 15. Learned A.G.A. Sri N.K. Srivastava submits that as far as cross-examination of PW-2 is concerned, nor in the statement recorded under Section 313 of Cr.P.C. of accused, this aspect has been answered or rebutted that the accused had not caught hold of the deceased just because this aspect is not mentioned in the F.I.R. It will not prove fatal to the accused. The oral testimony of PW-2 cannot be discarded. It is further submitted that the evidence of the doctor clinches the issue and the accused with common intention inflicted injury to the deceased. 16. After advancing aforesaid arguments, learned counsels for the appellants alternatively submitted that if this Court in appeal holds the accused guilty, it may consider the alternative prayer for reduction of the sentence as the sentence of life imprisonment and fine awarded to the appellants by the trial court is very harsh and not commensurate to the injury caused. 17. While coming to the conclusion that the accused are the perpetrators of the offence, whether sentence of life imprisonment and fine is adequate or the sentence requires to be modified in the facts and circumstances of this case and in the light of certain judicial pronouncements and precedents applicable in such matters requires to be considered from the aspect of injuries of deceased. The post-mortem reveals that there were following injuries on the dead body. 18. This Court would refer to the following precedents, namely, Mohd. Giasuddin vs. State of A.P. AIR 1977 SC 1926 , which explains rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court in the said decision as follows: “Crime is a pathological aberration. The criminal can ordinarily be redeemed and the state has to rehabilitate rather than avenge. The sub-culture that leads to ante-social behaviour has to be countered not by undue cruelty but by reculturization. Therefore, the focus of interest in penology in the individual and the goal is salvaging him for the society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today vies sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of a social defence. Hence a therapeutic, rather than an ‘in terrorem’ outlook should prevail in our criminal courts, since brutal incarceration of the person merely produces laceration of his mind. If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” 19. ‘Proper Sentence’ was explained in Deo Narain Mandal vs. State of U.P. (2004) 7 SCC 257 by observing that Sentence should not be either excessively harsh or ridiculously low. While determining the quantum of sentence, the court should bear in mind the 'principle of proportionality'. Sentence should be based on facts of a given case. Gravity of offence, manner of commission of crime, age and sex of accused should be taken into account. Discretion of Court in awarding sentence cannot be exercised arbitrarily or whimsically. 20. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs. State of U.P. (2010) 12 SCC 532 , Guru Basavraj vs. State of Karnataka, (2012) 8 SCC 734 , Sumer Singh vs. Surajbhan Singh, (2014) 7 SCC 323 , State of Punjab vs. Bawa Singh, (2015) 3 SCC 441 and Raj Bala vs. State of Haryana, (2016) 1 SCC 463 and has reiterated that, in operating the sentencing system, law should adopt corrective machinery or deterrence based on factual matrix. Facts and given circumstances in each case, nature of crime, manner in which it was planned and committed, motive for commission of crime, conduct of accused, nature of weapons used and all other attending circumstances are relevant facts which would enter into area of consideration. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. Further, undue sympathy in sentencing would do more harm to justice dispensations and would undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to nature of offence and manner of its commission. The supreme court further said that courts must not only keep in view the right of victim of crime but also society at large. While considering imposition of appropriate punishment, the impact of crime on the society as a whole and rule of law needs to be balanced. The judicial trend in the country has been towards striking a balance between reform and punishment. The protection of society and stamping out criminal proclivity must be the object of law which can be achieved by imposing appropriate sentence on criminals and wrongdoers. Law, as a tool to maintain order and peace, should effectively meet challenges confronting the society, as society could not long endure and develop under serious threats of crime and disharmony. It is therefore, necessary to avoid undue leniency in imposition of sentence. Thus, the criminal justice jurisprudence adopted in the country is not retributive but reformative and corrective. At the same time, undue harshness should also be avoided keeping in view the reformative approach underlying in our criminal justice system. 21. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 22. While going through the record and the testimony of the witnesses specially the FIR and the medical evidence, the guilt of the accused is proved to the hilt and we are unable to disagree with the learned court below in recording the finding of guilt of the accused. 23. The evidence of doctor who had performed the post mortem as narrated herein-above also fortified that the injuries were possible by knife used by appellant-Gaya Prasad. 23. The evidence of doctor who had performed the post mortem as narrated herein-above also fortified that the injuries were possible by knife used by appellant-Gaya Prasad. Section 34 of I.P. Code reads as under: “Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.” 24. As discussed above, reformative theory of punishment is to be adopted and for that reason, it is necessary to impose punishment keeping in view the doctrine of proportionality. It appears from perusal of impugned judgment that sentence awarded by learned trial court for life term is very harsh keeping in view the entirety of facts and circumstances of the case and gravity of offence. Hon'ble Apex Court, as discussed above, has held that undue harshness should be avoided taking into account the reformative approach underlying in criminal justice system. 25. Learned AGA also admitted the fact that appellant-Gaya Prasad Tiwari is languishing in jail for the last more than 14 years. The accused-appellants are convicted for commission of offence under Section 304 Part-I read with Section 34 IPC, which is a major offence and is sentenced for life imprisonment along with fine. In our opinion, ends of justice would be met if sentence is reduced to the period of 10 years imprisonment for the aforesaid offence. 26. Gaya Prasad Tiwari is punished for period undergone rigorous imprisonment. The fine of Rs. 10,000/- is reduced to Rs. 5,000/- to him. As far as Mukundi Singh is concerned, we hold that looking to the factual data and as ingredient of Section 34 I.P. Code are not proved as there was no common intention to do away with the deceased or injure him. We are fortified in our view by the decision of the Apex Court in Khokan @ Khokhan Vishwas vs. State of Chhattisgarh, Criminal Appeal No. 121 of 2021, decided on 11.2.2021 and State of Uttar Pradesh vs. Subhash @ Pappu, Criminal Appeal No. 436 of 2022, decided on 1.4.2022. 27. We are fortified in our view by the decision of the Apex Court in Khokan @ Khokhan Vishwas vs. State of Chhattisgarh, Criminal Appeal No. 121 of 2021, decided on 11.2.2021 and State of Uttar Pradesh vs. Subhash @ Pappu, Criminal Appeal No. 436 of 2022, decided on 1.4.2022. 27. Once we hold that there was no common intention, role of person has to be evaluated and the act the accused had committed would have to be viewed in the light of evidence against the accused. It cannot be said that Mukundi Singh was not present and there was no overt act committed by him. The deceased succumbed is not negated in the statement under Section 313 Cr.P.C. However, as long period has elapsed, we reduce the punishment of Mukundi to sentence undergone but enhance the fine from Rs. 10,000/- to Rs. 15,000/-. The fine be deposited within 3 months from his release from jail failing which he shall be incarcerated for further 2 years. 28. Hence, the sentence awarded to the appellant-Gaya Prasad Tiwari and Mukundi Singh by the learned trial-court is modified as above under Section 304 Part-I read with Section 34 IPC and fine as above mentioned. 29. Accordingly, both the appeals are partly allowed with the modification of the sentence, as above. 30. The Jailer to release the accused if not wanted in other offence. Mukundi Singh is on bail. Jailor of concerned jail to do the needful as per jail manual. 31. Record be sent back to the court below. 32. This Court is thankful of all the Counsels for ably assisting this Court ad getting these old appeals disposed off.