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2022 DIGILAW 1726 (ALL)

Balveer Singh v. State of U. P.

2022-11-02

AJAI TYAGI, K.J.THAKER

body2022
JUDGMENT : 1. Heard Sri Abhishek Mayank, learned counsel for appellant and Sri Vikas Goswami, learned counsel for State. 2. This appeal has been preferred by the accused-appellant against the judgment and order dated 17.4.2018, passed by learned Additional Sessions Judge, Court No. 10, Aligarh in Sessions Trial No. 241 of 2016 (State of Uttar Pradesh Vs. Balveer Singh ) connected with Sessions Trial No. 242 of 2016 arising out of Crime No. 261 of 2015 connected with Crime No. 05 of 2016 convicting the accused – appellant under Sections 302 of Indian Penal Code, 1860 (in brevity 'IPC'), Police Station Dadon, District Aligarh and sentenced the accused-appellant to undergo imprisonment for life with fine of Rs.20,000/- and in case of default of payment of fine, further to undergo simple imprisonment for a period of six months. 3. The prosecution story in brief is as follows, that on getting the information, it was scribed by Rajendra Singh s/o Har Prasad, Ext.Ka- 1 written-complaint was submitted in police-station Dadon, District Aligarh by the complainant Itwari Singh s/o Neksey r/o Ramnagar P.S.-Ramnagar P.S.-Dadon District-Aligarh on 18.11.2015 wherein it was mentioned that “Today on 18.11.2015, my brother Kundan aged around 45 years was sitting at his home and Balveer Singh s/o Bhurey Singh, son of my father’s elder brother, was also present there. My brother had borrowed Rs.100/- from Balveer Singh, over the return of which, a dispute arose between Balveer Singh and Kundan. On hearing hue and cry, when my wife Smt. Manoj Devi and he came out of the room, Balveer Singh son of my father’s elder brother shot my brother Kundan in my presence and my wife at 9 p.m. and ran away. While running away, Balveer Singh took away the tamancha (country made gun) with him. On raising alarm by me, people from the surrounding area gathered there, who saw Balveer Singh running away. The information of the occurrence was conveyed on Number- 100. My brother’s dead body is lying at the spot. Please take appropriate action by lodging my report.” 4. On the basis of First Information Report, Itwri Singh’s and also written-complaint, case crime no. 261 of 2015 u/s 302 IPC against Balveer Singh was registered in police-station Dadon. Entry of the case was made in the concerned G.D. of the police-station. My brother’s dead body is lying at the spot. Please take appropriate action by lodging my report.” 4. On the basis of First Information Report, Itwri Singh’s and also written-complaint, case crime no. 261 of 2015 u/s 302 IPC against Balveer Singh was registered in police-station Dadon. Entry of the case was made in the concerned G.D. of the police-station. During the investigation, Ext.Ka-7 inquest-report was prepared by taking, the dead body of deceased Kundan in custody of police and dead body of the deceased was sent for post-mortem. 5. During the investigation, accused Balveer was arrested by Incharge of police-station Dadon on 13.01.2016 and on being frisked, one country-made pistol 315 bore and one live cartridge were recovered from Balveer. 6. During investigation, the investigator inspected the place of occurrence and prepared the site plan Ext. ka-11 & ka-14 and recorded the statements of the witnesses. After investigation, the investigator finding the prima facie case under section- 302 IPC & Section-25 Arms Act against the accused namely Balveer Singh submitted charge sheet Ext. ka-16 & ka-15 respectively in both cases. 7. On completion of investigation, charge-sheet u/s 302 I.P.C. against the accused was filed. The cognizance was taken on the charge-sheet by the concerned Magistrate and the case was committed to the court of session under section 302 of I.P.C. 8. On being summoned, the accused-appellant pleaded not guilty and wanted to be tried, hence, the trial commenced and the prosecution examined about 11 witnesses who are as follows: 1 Deposition of Manoj Devi PW-1 2 Deposition of Rajendra PW-2 3 Deposition of Rajnesh alias Kallu PW-3 4 Deposition of Satveer PW-4 5 Deposition of Itwari Singh PW-5 6 Deposition of constable Amar Singh PW-6 7 Deposition of S.I. Ramkant Pachauri PW-7 8 Deposition of Dr. Ikrar Ahmad PW-8 9 Deposition of S.I. Sadan Singh PW-9 10 Deposition of H.C. Naresh Singh PW-10 11 Deposition of Inspector B.R. Dikshit PW-11 9. In support of ocular version following documents were filed and proved: 1 Written report Ex.Ka.1 2 Chik of FIR Ex.Ka.2 3 Copy of G.D. Ex.Ka.3 4 Police form no. Ikrar Ahmad PW-8 9 Deposition of S.I. Sadan Singh PW-9 10 Deposition of H.C. Naresh Singh PW-10 11 Deposition of Inspector B.R. Dikshit PW-11 9. In support of ocular version following documents were filed and proved: 1 Written report Ex.Ka.1 2 Chik of FIR Ex.Ka.2 3 Copy of G.D. Ex.Ka.3 4 Police form no. 13 Ex.Ka.4 5 Letter to R.I. Ex.Ka.5 6 Letter to C.M.O. Ex.Ka.6 7 Inquest report Ex.Ka.7 8 Photo of dead body Ex.Ka.8 9 Chik of FIR Ex.Ka.9 10 Post-mortem report Ex.Ka.9A 11 Copy of G.D. Ex.Ka.10 12 Recovery memo of plain earth and blood stained earth Ex.Ka.10A 13 Site-plan Ex.Ka.11 14 Recovery memo of one country made pistol 315 Ex.Ka.11A 15 Police Form No. 33 Ex.Ka.12 16 Charge-sheet Ex.Ka.13 10. On completion of the prosecution evidence, the statement of the accused person u/s. 313 Cr.P.C. were recorded, wherein the accused stated that owing to factionalism in the village, the false case has been lodged against him. The murder of the deceased was caused by some unknown criminals and time has been sought for the defence evidence. 11. Learned counsel for the appellant has submitted that the trial court vide order dated 17.4.2018 convicted the accused – appellant under Section 302 of IPC and sentenced the accused to imprisonment of life with fine of Rs.20,000/- in default one year of incarceration. Learned counsel has contended that this is a case of no evidence most of the witnesses have not supported the prosecution story. 12. Learned counsel for the appellant has relied on the following decisions of Apex Court in (a) Criminal Appeal No. 577 of 2020 (Arising out of SLP (Crl) No. 3171 of 2019 (Stalin Vs. State represented by the Inspector of Police) decided on 9.9.2020, Criminal Appeal No. 82 of 2015 ( arising out of SLP ( Crl) No. 9447 of 2012) decided on 14.1.2015, Criminal Appeal No. 1124 of 2022 ( arising out of Special Leave Petition ( Criminal) No. 2481 of 2022) ( Dauvaram Nirmalkar Vs. State of Chhattisgarh) decided on 2.8.2022, Criminal Appeal No. 1838 of 2019 ( Ajmal Vs. The State of Kerala) decided on 12.7.2022, Criminal Appeal No. 436 of 2022 ( The State of Uttar Pradesh Vs. Subhash @ Pappu) decided on 1.4.2022, Criminal Appeal No. 1317 of 2022 ( Chherturam @ Chainu Vs. State of Chhattisgarh) decided on 2.8.2022, Criminal Appeal No. 1838 of 2019 ( Ajmal Vs. The State of Kerala) decided on 12.7.2022, Criminal Appeal No. 436 of 2022 ( The State of Uttar Pradesh Vs. Subhash @ Pappu) decided on 1.4.2022, Criminal Appeal No. 1317 of 2022 ( Chherturam @ Chainu Vs. State of Chhattisgarh) decided on 13.9.2022 and Criminal Appeal No. 1548 of 2011 (Suresh Singhal Vs. State ( Delhi Administration) decided on 13.9.2022 so as to contend that the accused has not committed any offence and in alternative to contend that case of committing murder is not made out against the accused. 13. Learned counsel for the appellant after submitting for clean acquittal submitted that if the Court is not convinced he may not press the appeal on its merit, but he prays only for reduction of the sentence as the sentence of life imprisonment awarded to the appellant by the trial court is very harsh as the incident occurred without premeditation. Learned counsel also submitted that appellant is in jail since 14.1.2016 and prays for conversion of sentence from Section 302 of IPC to Section 304 (Part-I or Part II) of IPC. 14. Sri Vikas Goswami, learned counsel appearing on behalf of State contended that the appeal is merit less. The evidence of all the witnesses prove the involvement of the accused . The accused had committed the offence which has been proved by pleading cogent evidence. The death of the deceased was a homicidal death. All the evidence is against the appellant- accused and it has been proved that the accused and accused alone was the perpetrator of death and he has purposefully inflicted the injury on the deceased. He did not even care to take her hospital which shows to a culpable mind and has requested for dismissal of appeal. 15. The scrutiny of prosecution evidence reveals that PW-1 Mrs Manoj Devi has stated on oath that deceased Kundan was elder brother of her husband(Jeth). Accused Balveer Singh is younger brother of her husband (Devar). No quarrel took place between deceased and accused in front of her. Incident occurred on 18th at 9 PM. She did not know the month and day thereof, it was the month of Kartikya as per Hindu calendar. Thereafter there was turncoat on her part and witnesses stated that she has not seen incident. No quarrel took place between deceased and accused in front of her. Incident occurred on 18th at 9 PM. She did not know the month and day thereof, it was the month of Kartikya as per Hindu calendar. Thereafter there was turncoat on her part and witnesses stated that she has not seen incident. She reached the place of offence after deceased had succumbed to his injuries. She cannot state as to who fired the gunshot. She had not seen accused- Balveer Singh shooting deceased-Kundan. This witness was declared hostile on the basis of application of prosecution and there was nothing which would prove any case against the accused. 16. PW-2 Rajendra has stated on oath that deceased Kundan happens to be his brother by way of family relations. On 18-11-2015 at about 9 P.M. ,he was present at his home, then only he came to know that someone has mortally shot Kundan. On hearing this news, he reached the spot, Kundan was lying dead in his house. His body was lying in the varendah. Several individuals from the village and Mohalla had gathered on the spot. He stated all had gone together to the police station. He had written the complaint at the police station as per the advice of sub inspector and villagers. The complaint was submitted to the sub inspector having written the same. He had neither written the complaint on the dictation of Itwari Singh nor had he read over the same to Itwari Singh after writing it. This witness has proved written complaint Ex Ka-1 by his evidence. This witness was declared hostile on the application of prosecution. 17. PW-3 Rajnesh alias Kallu has stated on oath that he came to know on 18.11.2015 at about 9:30 in the night that someone has killed Kundan by shooting him. He saw body of Kundan lying outside varendah when he reached the spot. Several villagers had gathered there. Police from Dado police station had reached the spot in the night and took the body for post mortem after completing the inquest report. Sub inspector had obtained my signature on a blank page. Nothing was written on the paper nor anything was written on it in front of me, nor memo was read over by sub inspector. Blood stained earth and plain earth was not collected in box by sub inspector in front of me. Sub inspector had obtained my signature on a blank page. Nothing was written on the paper nor anything was written on it in front of me, nor memo was read over by sub inspector. Blood stained earth and plain earth was not collected in box by sub inspector in front of me. This witness was declared hostile on the application of prosecution. 18. PW-4 Satyaveer has stated on oath that deceased Kundan happens to be his Chacha (younger brother of father ) by way of family relations and his house is at a distance of about 300 metres from the house of the deceased. He came to know on 18.11.2015 at 8-9 in the night that some one had killed Kundan by shooting him. He had reached the spot. The police from police station Dado had arrived in the night itself. The Sub inspector prepared the inquest report wherein he too was appointed as panch and my signature was obtained. The witness verified his signature present on the inquest report. The police took the dead body in sealed and stamped condition for post mortem. The sub inspector did not record my statement in relation to the incident nor did he interrogate me nor did the fact of Balveer Singh firing the shot was stated by me. This witness was declared hostile on the application of prosecution. 19. In his statement on oath, PW-5 Itwari Singh has stated that the incident had occurred around one year and four months ago. The incident had occurred at around 9 pm. He was at home at that time. Kundan and Balveer Singh were sitting in the verandah. There was a dispute between them on a transaction involving 100 rupees. All of a sudden Balveer Singh opened fire with a country made pistol on the neck below the ear of my brother Kundan. He had clearly seen in the light of an electric bulb Balveer Singh opening a shot at Kundan. He opined that his brother Kundan died immediately after sustaining the shot. Balveer Singh fled away from the crime scene after opening the shot. On an alarm being raised by me, persons from the village had gathered. Rajendra of the village had made a call to police at number 100. He had dictated the complaint of the incident at my home to Rajendra. Rajendra had read over the contents of the complaint to me. On an alarm being raised by me, persons from the village had gathered. Rajendra of the village had made a call to police at number 100. He had dictated the complaint of the incident at my home to Rajendra. Rajendra had read over the contents of the complaint to me. He had put my thumb impression over it and lodged an FIR by visiting the police station. This witness has proved the written complaint being ext. ka-1 by way of his evidence. The Sub-Inspector had reached the crime scene in the night itself and sent the dead body for post-mortem in sealed condition after preparing the panchayatnama. The Sub-Inspector had recorded my statement at the crime scene in the village. He had shown the crime scene to the Sub- Inspector. 20. PW-6 constable Amar Singh has in his statement on oath has stated that on 18.11.2015, he was on duty at Police station Dado. On that day at around 22:20 hours, he had registered case crime no. 261 of 2015 u/s 302 IPC against the accused Balveer Singh on the written complaint filed by the complainant Itwari Singh, chik whereof was prepared by me on the computer. 21. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant as far as death of deceased is concerned and we conclude that it was homicidal death caused by appellant. 22. The question which falls for our consideration is whether, on reappraisal of the peculiar facts and circumstances of the case, the conviction of the appellant under Section 302 of I.P.C. should be upheld or the conviction deserves to be converted under Section 304 Part-I or Part-II of the Indian Penal Code. It would be relevant to refer Section 299 of the Indian Penal Code, which read as under: “299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 23. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300 of IPC. The following comparative table will be helpful in appreciating the points of distinction between the two offences. Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done. Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done. INTENTION INTENTION (a) with the intention of causing death. (1) with the intention of causing death. (b) with the intention of causing such bodily injury as is likely to cause death. (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. KNOWLEDGE KNOWLEDGE (c) with the knowledge that the act is likely to cause death. (4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above. 24. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 25. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC. 25. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no intention to cause death of deceased, the injuries were though sufficient in the ordinary course of nature to have caused death, accused had no intention to do away with deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed will fall under Section 304 Part-I as per the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which have to be also kept in mind. 26. We can safely rely upon the decision of the Gujarat High court in Criminal Appeal No. 83 of 2008 (Gautam Manubhai Makwana Vs. State of Gujarat) decided on 11.9.2013 wherein the Court held as under: “12. In fact, in the case of Krishan vs. State of Haryana, (2013) 3 SCC 280 , the Apex Court has held that it is not an absolute principle of law that a dying declaration cannot form the sole basis of conviction of an accused. Where the dying declaration is true and correct, the attendant circumstances show it to be reliable and it has been recorded in accordance with law, the deceased made the dying declaration of her own accord and upon due certification by the doctor with regard to the state of mind and body, then it may not be necessary for the court to look for corroboration. In such cases, the dying declaration alone can form the basis for the conviction of the accused. But where the dying declaration itself is attended by suspicious circumstances, has not been recorded in accordance with law and settled procedures and practices, then, it may be necessary for the court to look for corroboration of the same. 13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. 13. However, the complaint given by the deceased and the dying declaration recorded by the Executive Magistrate and the history before the doctor is consistent and seems to be trustworthy. The same is also duly corroborated with the evidence of witnesses and the medical reports as well as panchnama and it is clear that the deceased died a homicidal death due to the act of the appellants in pouring kerosene and setting him ablaze. We do find that the dying declaration is trust worthy. 14. However, we have also not lost sight of the fact that the deceased had died after a month of treatment. From the medical reports, it is clear that the deceased suffered from Septicemia which happened due to extensive burns. 15. In the case of the B.N. Kavatakar and another (supra), the Apex Court in a similar case of septicemia where the deceased therein had died in the hospital after five days of the occurrence of the incident in question, converted the conviction under section 302 to under section 326 and modified the sentence accordingly. 15.1 Similarly, in the case of Maniben (supra), the Apex Court has observed as under: “18. The deceased was admitted in the hospital with about 60% burn injuries and during the course of treatment developed septicemia, which was the main cause of death of the deceased. It is, therefore, established that during the aforesaid period of 8 days the injuries aggravated and worsened to the extent that it led to ripening of the injuries and the deceased died due to poisonous effect of the injuries. 19. It is established from the dying declaration of the deceased that she was living separately from her mother-in-law, the appellant herein, for many years and that on the day in question she had a quarrel with the appellant at her house. It is also clear from the evidence on record that immediately after the quarrel she along with her daughter came to fetch water and when she was returning, the appellant came and threw a burning tonsil on the clothes of the deceased. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. Since the deceased was wearing a terylene cloth at that relevant point of time, it aggravated the fire which caused the burn injuries. 20. There is also evidence on record to prove and establish that the action of the appellant to throw the burning tonsil was preceded by a quarrel between the deceased and the appellant. From the aforesaid evidence on record it cannot be said that the appellant had the intention that such action on her part would cause the death or such bodily injury to the deceased, which was sufficient in the ordinary course of nature to cause the death of the deceased. Therefore, in our considered opinion, the case cannot be said to be covered under clause (4) of Section 300 of IPC. We are, however, of the considered opinion that the case of the appellant is covered under Section 304 Part II of IPC.” 16. In the present case, we have come to the irresistible conclusion that the role of the appellants is clear from the dying declaration and other records. However, the point which has also weighed with this court are that the deceased had survived for around 30 days in the hospital and that his condition worsened after around 5 days and ultimately died of septicemia. In fact he had sustained about 35% burns. In that view of the matter, we are of the opinion that the conviction of the appellants under section 302 of Indian Penal Code is required to be converted to that under section 304(I) of Indian Penal Code and in view of the same appeal is partly allowed. 17. The conviction of the appellants - original accused under Section 302 of Indian Penal Code vide judgment and order dated 19.12.2007 arising from Sessions Case No. 149 of 2007 passed by the Additional Sessions Judge, Fast Track Court No. 6, Ahmedabad is converted to conviction under Section 304 (Part I) of Indian Penal Code. However, the conviction of the appellants – original accused under section 452 of Indian Penal Code is upheld. The appellants – original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The appellants – original accused are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/- each in default rigorous imprisonment for six months under section 304 (Part I) of Indian Penal Code instead of life imprisonment and sentence in default of fine as awarded by the trial court under section 302 IPC. The sentence imposed in default of fine under section 452 IPC is also reduced to two months. Accordingly, the appellants are ordered to undergo rigorous imprisonment for a period of ten years and fine of Rs. 5000/-, in default, rigorous imprisonment for six months for offence punishable under section 304(I) of Indian Penal Code and rigorous imprisonment for a period of five years and fine of Rs. 2,000/-, in default, rigorous imprisonment for two months for offence punishable under section 452 of Indian Penal Code. Both sentences shall run concurrently. The judgement and order dated 19.12.2007 is modified accordingly. The period of sentence already undergone shall be considered for remission of sentence qua appellants – original accused. R & P to be sent back to the trial court forthwith.” 27. In latest decision in Khokan @ Khokhan Vishwas Vs. State of Chattisgarh, 2021 Law Suit (SC) 80 on which this court relies wherein the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant and sentenced under Section 304 of IPC. The decision of the Apex Court in the case of Anversinh v. State of Gujarat, (2021) 3 SCC 12 which was related to kidnapping from legal guardian, wherein it was established that the Court while respecting the concerns of both society and victim, propounded that the twin principle of deterrence and correction would be served by reducing the period of incarceration already undergone by the accused. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 28. In our case, this is not that gruesome matter where the accused cannot be dealt with in light of all these judgments. Judgments in Pravat Chandra Mohanty v. State of Odisha, (2021) 3 SCC 529 & Pardeshiram v. State of M.P., (2021) 3 SCC 238 will also enure for the benefit of the accused. 28. The factual scenario as it emerges would go to show that the incident occurred when the accused came to the place of incident 100 rupees were demanded which he had taken from the deceased and there was a quarrel between the deceased and accused. At about 9:00 p.m. Balbeer fired at the deceased and this occurred insper of the moment. The evidence goes to show that it was not a premeditated cold blooded murder. However, PW-1 did not see the deceased shooting at the deceased. PW-2, has turned hostile. Similar is the case with PW-3. The gun was recovered at the instance of the accused from a place which was known only to him. 29. As narrated herein above the decision of commission of offence under Section 302 IPC cannot be concurred by us in view of the As narrated herein above as on overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors ( supra) and we are fortified in our view by the judgment of Apex Court in the case of B.N. Kavatakar and Another (supra) and therefore, we are of the considered opinion that the offence would be one punishable under Section 304 part-I of the IPC and not under Section 302 of IPC or Section 304 Part -II of IPC. 30. In Mohd. Giasuddin Vs. State of AP, [ AIR 1977 SC 1926 ], explaining rehabilitary & reformative aspects in sentencing it has been observed by the Supreme Court: “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 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. 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.” 31. 'Proper Sentence' was explained in Deo Narain Mandal vs. State of UP [ (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. 32. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Supreme Court referred the judgments in Jameel vs State of UP [ (2010) 12 SCC 532 ], Guru Basavraj vs State of Karnatak, [ (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. 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. 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. 33. 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. 34. Since the learned counsel for the appellant has later not pressed the appeal on merit, however, after perusal of entire evidence on record and judgment of the trial court, we consider that the appeal is required to be partly allowed. 35. 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'. 35. 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. 36. On the overall scrutiny of the facts and circumstances of the case coupled with medical evidence and the opinion of the Medical Officer and considering the principles laid down by the Courts in above referred case laws, we are of the considered opinion that in the case at hand, the offence would be punishable under Section 304 (Part-I) of IPC. Punishment: 37. The accused is in jail since 14.1.2016. The Apex Court in such cases has converted the conviction under Section 302 of I.P.C. to under Section 304 Part I of I.P.C. which will come to the aid of the accused-appellant. 38. In view of the aforementioned discussion, we are of the view that the appeal has to be partly allowed, hence, appeal is partly allowed. The judgment in Chherturam @ Chainu (supra) will enure for the benefit of the accused and the judgment of Stalin Vs. State represented by the Inspector of Police ( supra), we punish the accused-appellant for eight years rigorous imprisonment and fine of Rs.10000/- in default of fine to undergo one year rigorous imprisonment. 39. Appellant-accused is in jail since 14.1.2016 till date. On completion of eight years of incarceration with remission is over for all the offences and if fine is not deposited, the default sentence would start after the period of eight years. The accused- appellant shall be released on completion of said period, if not required in any other case. The accused-appellant would be entitled to all remissions. The judgment and order impugned in this appeal shall stand modified accordingly. 40. Let a copy of this judgment along with the trial court record be sent to the Court and Jail Authorities concerned for compliance.