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2022 DIGILAW 1861 (ALL)

Puttan v. State of U. P.

2022-11-24

KAUSHAL JAYENDRA THAKER, NALIN KUMAR SRIVASTAVA

body2022
JUDGMENT : (Nalin Kumar Srivastava, J.) 1. The Additional Sessions Judge/Special Judge (E.C. Act) Fatehpur convicted the convict/appellant Puttan in Sessions Trial No. 781 of 2006 arising out of Crime No. 340 of 2006, P.S.-Kotwali, District-Fatehpur under Section 302 I.P.C. and sentenced for life imprisonment and fine to a tune of Rs.2,000/- with default sentence of simple imprisonment for 6 months, feeling aggrieved of which the convict/appellant has preferred this appeal. 2. The factual scenario of the case according to the FIR is that on 8.9.2006 at 10.30-11.00 am when the informant Sohan Lal, his brother Puttan and mother Bhagwanti Devi were present at home, accused Puttan started abusing his mother for some money matter and when the informant intervened, he assaulted his mother Bhagwanti Devi with intention of kill her by axe and she died on spot. The accused fled away. A written report Ex.Ka-3 narrating the aforesaid facts was given to police station Kotwali, Fatehpur by the informant Sohan Lal and FIR Ex.Ka-1 was lodged on 8.9.2006 and G.D. Ex.Ka-2 was also prepared. The investigation started and the Investigating Officer performed the inquest proceedings and inquest report Ex.Ka-7 and papers relating to the post mortem Ex.Ka-8, Ex.Ka-9, Ex.Ka-10 were also prepared, spot inspection was made by the I.O and site plan Ex.Ka-11 was prepared. Memo of recovery of plain and blood stained soil Ex.Ka-12 was also prepared. During the course of investigation, the accused was arrested and the murder weapon was recovered from his possession and recovery memo Ex.Ka-13 was also prepared. The site plan of the place of recovery Ex.Ka-4 was also prepared and after closing of the investigation charge sheet Ex.Ka-5 was submitted to the Court. Meanwhile on 9.9.2006 the autopsy of the body of the deceased was conducted by Dr. V.N. Srivastava, who prepared the autopsy report Ex.Ka-6 and found the following ante mortem injuries over the body of the deceased: 1. incised wound 9 cm x 1 cm brain deep, horizontally placed, 3 cm behind right ear with fracture of mastoid bone. 2. lacerated wound 6 cm x 4 cm brain deep just 4 cm above injury no.1 with fracture of under lining parietal bone of right side. 3. incised wound 10 cm x 4 cm x bone deep on right upper back horizontally placed along superior border of right scapula. 3. 2. lacerated wound 6 cm x 4 cm brain deep just 4 cm above injury no.1 with fracture of under lining parietal bone of right side. 3. incised wound 10 cm x 4 cm x bone deep on right upper back horizontally placed along superior border of right scapula. 3. It was opined by the doctor that the death occurred due to coma as a result of ante mortem head injury. 4. The accused appeared before the Court and the case being triable exclusively by the Sessions Court was committed to the Court of Sessions where charge under Section 302 I.P.C. was framed against the accused, who pleaded not guilty and claimed to be tried. 5. The prosecution in order to prove its case has relied upon oral as well as documentary evidence. 6. In oral evidence P.W.1 Sohan Lal, the informant, P.W.2 HCP. Narendra Nath Tripathi scribe of the FIR, P.W.3 Om Prakash Gautam scribe of tehrir, P.W.4 S.H.O Nand Kumar Singh 2nd I.O, P.W.5 Dr. V.N. Srivastava the witness of autopsy, P.W.6 S.I. Naki Haidar the first I.O. and P.W.7 Ranjit Kumar Singh witness of recovery of murder weapon have been examined. 7. To support the oral evidence, documentary evidence FIR Ex.Ka-1, G.D. Ex.Ka-2, written report Ex.Ka-3, site plan of place of recovery of murder weapon Ex.Ka-4, charge sheet Ex.Ka-5, autopsy report Ex.Ka-6, inquest report Ex.Ka-7, challan nash, photo nash and letter C.M.O Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10 respectively, site plan Ex.Ka-11, memo of blood stained and plain soil Ex.Ka-12 and recovery memo of murder weapon Ex.Ka-13 have been produced. The murder weapon axe was also proved as material Ex.1. The F.S.L. Report 21 A is also available on record. 8. The incriminating circumstances and evidence adduced by the prosecution were put to the accused and in his statement under Section 313 Cr.P.C. the accused took a plea of false implication and denied the truthfulness of the entire evidence adduced against him by the prosecution. 9. Before analyzing the judgement rendered by the learned trial Court we deem it fit to have a glance upon the evidence adduced by the prosecution by way of oral testimony of the witnesses as well as the documentary evidence. 10. P.W.1 Sohan Lal, the informant is the real brother of the accused. 9. Before analyzing the judgement rendered by the learned trial Court we deem it fit to have a glance upon the evidence adduced by the prosecution by way of oral testimony of the witnesses as well as the documentary evidence. 10. P.W.1 Sohan Lal, the informant is the real brother of the accused. In his deposition, he has proved the prosecution case and has made a clear narration to the fact that at the time of occurrence, accused Puttan had a quarrel with his mother/deceased on the issue of sale of land, he also abused her and when the informant intervened, he got angry and brought an axe and made several blows with the axe over the deceased, who fell down and died. The accused fled away. P.W.1 has proved the written report. 11. P.W.3 Om Prakash Gautam, who is scribe of tehrir, has made statement before the Court that the said report was written by him on the dictation of P.W.1 and has proved it as Ext. Ka 3. he has also identified his signature over the recovery memo of the murder weapon axe, which according to him the police had recovered from the possession of the accused Puttan at the time of his arrest. He has also identified the axe material Ex.1, which was produced before him at the time of evidence in the Court. 12. P.W.2 Head Cons. Narendra Nath Tripathi has proved the Chick FIR Ex.Ka-1 and G.D. Ex.Ka-2 and has stated that the FIR was lodged on the basis of the written report given by the informant Sohan Lal. 13. P.W.5 doctor V.N. Srivastava has conducted the autopsy of the body of the deceased and has proved the autopsy report as Ex.Ka-6. 14. P.W.6 S.I. Naki Haidar is the first I.O. of the case, who has proved the proceedings of the investigation and the second I.O. P.W.4 S.H.O Nand Kumar Singh has also proved the rest proceedings of the investigation and has stated that after completion of investigation charge sheet Ex.Ka-5 was submitted by him before the Court. 15. P.W.7 Ranjit Kumar is the witness of arrest of the accused by the police and the recovery of murder weapon axe from his possession. He has proved the aforesaid facts in his deposition and has also identified his signature over the recovery memo Ex.Ka-13. 16. 15. P.W.7 Ranjit Kumar is the witness of arrest of the accused by the police and the recovery of murder weapon axe from his possession. He has proved the aforesaid facts in his deposition and has also identified his signature over the recovery memo Ex.Ka-13. 16. The trial Court after making a detailed analysis of the oral as well as documentary evidence available on record and after hearing the parties at length recorded the conviction of the accused under Section 302 I.P.C. and sentenced him accordingly. 17. The appellant has assailed the impugned judgement on various grounds. 18. The Amicus Curiae has absented himself but the appeal is vehemently objected by Shri Ram Lal Mishra, learned counsel appearing for the informant as well as by learned AGA. 19. Learned A.G.A. and the learned counsel for the informant defending the impugned judgement have submitted that there is no legal flaw or factual error in the impugned judgement. The learned trial Court has analysed the evidence on record in a proper legal manner and has reached the logical end of the matter. The appeal has no force and is liable to be dismissed. 20. Heard learned counsel for the informant, learned A.G.A. and perused the record. 21. Although, Amicus Curiae is not present to argue this appeal we feel ourselves to be duty bound to consider the various aspects of the matter in the light of the evidence on record, the relevant laws and the arguments raised by the learned A.G.A. and learned counsel for the informant as well. Ocular Evidence 22. At the very out set, it is to be seen whether there was any other eye-witness of the occurrence except the informant and if it was so whether it was necessary for the prosecution to produce him as an ocular witness of the occurrence. 23. From the bare perusal of the FIR it is evident that no other witness except the informant has been mentioned therein. The informant has clearly mentioned in the written report that all the family members had gone to their tube-well situated at Bhikaripur and only he along with his mother (deceased) and brother (the convict) was present at home. In his deposition as P.W.1, the informant has corroborated the prosecution version. He has proved the written report Ex. Ka. 3. The informant has clearly mentioned in the written report that all the family members had gone to their tube-well situated at Bhikaripur and only he along with his mother (deceased) and brother (the convict) was present at home. In his deposition as P.W.1, the informant has corroborated the prosecution version. He has proved the written report Ex. Ka. 3. While going through the testimony of P.W.1, we find that no other eye-witness of the occurrence except the informant has been mentioned therein. He has clearly proved this fact that the convict was quarrelling with the deceased, his mother, in respect of sale of land and was abusing her and when P.W.1 intervened, he angrily brought axe and made blow over his mother, who fell down and died. He has also made it clear that his father and three sisters were not at home and they had gone to the tube well for work, which is 1 km. away from his house. 24. Learned A.G.A. has submitted that since no other person was present on spot except the informant, no question arises to produce any person as eye-witness of the occurrence. It has also been submitted that if the evidence of sole witness is reliable and trustworthy, the conviction can be recorded successfully in a criminal matter on the basis thereof. In the entire evidence of P.W.1, we do not find any contradictory or exaggerated statement. His deposition is quite natural and innocent and it transpires confidence. 25. The value of the testimony of the sole eyewitness was tested by the Hon'ble Supreme Court in Kusti Mallaiah Vs. State of Andhra Pradesh (2013) 12 Supreme Court Cases 680 wherein it was laid down as follows: “23. It has been held in catena of decisions of this Court that there is no legal hurdle in convicting a person on the sole testimony of a single witness if his version is clear and reliable, for the principle is that the evidence has to be weighed and not counted. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 , it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In Vadivelu Thevar v. The State of Madras AIR 1957 SC 614 , it has been held that if the testimony of a singular witness is found by the court to be entirely reliable, there is no legal impediment in recording the conviction of the accused on such proof. In the said pronouncement it has been further ruled that the law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. However, faced with the testimony of a single witness, the court may classify the oral testimony into three categories, namely, (i) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable nor wholly unreliable. In the first two categories there may be no difficulty in accepting or discarding the testimony of the single witness. The difficulty arises in the third category of cases. The court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. Similar view has been expressed in Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC 401 , Prithipal Singh and others v. State of Punjab and another (2012) 1 SCC 10 and Jhapsa Kabari and others v. State of Bihar (2001) 10 SCC 94.” 26. The same view has been reiterated in Amar Singh Vs. State (NCT of Delhi) (2020) 19 Supreme Court Cases 165 wherein it has been held as follows: ….As a general rule the Court can and may act on the testimony of single eye witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony Courts will insist on corroboration. It is not the number, the quantity but quality that is material. The time honoured principle is that evidence has to be weighed and not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State (NCT of Delhi) (2003) 11 SCC 367). 27. In Ashok Kumar Chaudhary. Vs. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State (NCT of Delhi) (2003) 11 SCC 367). 27. In Ashok Kumar Chaudhary. Vs. State of Bihar 2008 (61) ACC 972 (SC) it has been categorically held that if the testimony of an eyewitness is otherwise found trustworthy and reliable, the same cannot be disbelieved and rejected because certain insignificant, normal or natural contradictions have been appeared into his testimony. If the inconsistencies, contradictions, exaggerations, embellishments and discrepancies in the testimony are only normal and not material in nature, then the testimony of an eyewitness has to be accepted and acted upon. Distinctions between normal discrepancies and material discrepancies are that while normal discrepancies do not corrode the credibility of a party’s that the case, material discrepancies do so. 28. Since in the matter in hand the ocular version of P.W.1 is free from all embellishments, the witness falls into the category of a wholly reliable witness and as such we find no difficulty in accepting the testimony of P.W.1 as the sole witness of fact and this view also finds help from the verdict given in Lallu Manjhi and another v. State of Jharkhand (2003) 2 SCC 401 . Medical Evidence 29. The prosecution has come forward with a clear case that the murder was caused with the blows of axe. As per FIR, the accused made several blows over the deceased by using the axe, which proved fatal for her. This fact not only finds place in the oral testimony of P.W.1 but it is also corroborated by the medical evidence. P.W.5, who has performed the autopsy of the deceased has find two incised wounds and one lacerated wound over the body of the deceased. He has opined that injury no.1and 3 might be caused on account of attack of sharp edge of axe. He has also opined that the death of the deceased might have been caused on 8.9.2006 at 10:30-11:00 am. and that is the case of prosecution also. The death of the deceased was caused due to coma as a result of ante mortem head injuries as has been opined by the doctor P.W.5. The prosecution version in this way is corroborated by the medical evidence also. and that is the case of prosecution also. The death of the deceased was caused due to coma as a result of ante mortem head injuries as has been opined by the doctor P.W.5. The prosecution version in this way is corroborated by the medical evidence also. The learned trial Court has discussed these facts in the impugned judgement and has drawn the right conclusion. F.I.R/Tehrir 30. The FIR of the case and the written report are also trustworthy piece of evidence. P.W.3, the scribe of the written report has proved this report and has categorically stated that on the dictation of P.W.1 he had written the tehrir and it was read over to the informant after being written. P.W.1 also does not dispute this fact and narrates the same. P.W.2, the scribe of Chick FIR has also proved the FIR and G.D. of the case as Ext. A1, A2 and no infirmity is found in the testimony of this witness. F.I.R is prompt and has been lodged about one and half hour after the occurrence. Place of occurrence 31. Place of occurrence is always a significant peace of evidence for the prosecution in order to prove its case successfully. P.W.1 on this point has stated that the house of the accused and of the informant himself are separate having a path in between the two. The toilet of the family is situated in the house of the accused and on the fateful time when he was coming from the toilet, the occurrence happened. The site plan Ex.Ka-11 contains the topography of the place of occurrence and the above mentioned statement of P.W.1 finds support from this aspect also. From the perusal of the site plan Ex.Ka-11, it appears that the boundary of the place of occurrence as disclosed by P.W.1. in his deposition is also almost the same as shown therein. The site plan shows a clear picture of the place of occurrence and all the relevant places have been clearly shown therein. Motive 32. So far as the motive of the crime is concerned, it is crystal clear from the perusal of the FIR itself that there was a dispute in between the convict and his mother in respect of sale of some land and in the course of argument over that issue the accused committed the offence alleged against him. Motive 32. So far as the motive of the crime is concerned, it is crystal clear from the perusal of the FIR itself that there was a dispute in between the convict and his mother in respect of sale of some land and in the course of argument over that issue the accused committed the offence alleged against him. Moreover, the learned A.G.A. and learned counsel for the informant have vehemently argued that since the present case rests upon the ocular testimony of P.W.1 there was no need to prove the motive of the case for the prosecution. 33. Reliance has been placed upon Bikau Pandey Vs. State of Bihar (2003) 12 SCC 616 wherein it has been held that when the direct evidence establishes the crime, motive is of no significance and pales into insignificance. 34. There are catena of decisions on the point that in a case based upon the eye witness account, the motive loses its significance. In Deepak Verma Vs. State of Himachal Pradesh (2011) 10 SCC 129 It has been held as under: “...Proof of motive is not a sine qua non before a person can be held guilty of commission of crime. Motive being a matter of mind, is more often than not difficult to establish through evidence.” 35. From the analysis of the evidence on record, we do not find any possibility of false implication of the accused in the present matter. Nothing on this aspect has been put to P.W.1 while cross-examining him by the defence. P.W.1 is a reliable witness and makes a clear picture of the whole occurrence in his ocular version, hence to prove the motive to commit the crime was not necessary for the prosecution. Moreover, the factum of quarrel between the deceased and the accused over some property issue has been clearly proved by PW1, which was an instant reason of the murder as per FIR. Relevance of statement under section 313, C.r.p.c 36. Our attention is drawn to a significant aspect of the matter. This is a case where the real brother has lodged the FIR against his brother for the murder of his own mother. Relevance of statement under section 313, C.r.p.c 36. Our attention is drawn to a significant aspect of the matter. This is a case where the real brother has lodged the FIR against his brother for the murder of his own mother. From perusal of the testimony of P.W.1, we find and we are astonished as to why the real brother, son of the deceased, standing there does not even tried to save his mother from the assault of his brother but at the same time, we have also to take the statement of the accused under Section 313 Cr.P.C. into account. 37. In Neel Kumar alias Anil Kumar v. State of Haryana, (2012) 5 SCC 766 Hon'ble Apex Court held as under: “30. It is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 CrPC. Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain of circumstances to sustain the charges against him. Recovery of incriminating material at his disclosure statement duly proved is a very positive circumstance against him.” (The same principle has been formulated in Aftab Ahmad Anasari v. State of Uttaranchal [ (2010) 2 SCC 583 : (2010) 2 SCC (Cri) 1054 : AIR 2010 SC 773 ].) 38. When we translate the aforesaid principle with its application to the facts of this case, we find that the incriminating circumstances proved against the accused have not been explained by him at all while making his statement under Section 313 Cr.P.C. When the evidence and incriminating circumstances were put to him he simply denied them. To answer some questions he has stated that he does not know about it or he has replied that he has nothing to say about it. 39. It has been held by the Apex Court that the statement of the accused under Section 313 Cr.P.C is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. 39. It has been held by the Apex Court that the statement of the accused under Section 313 Cr.P.C is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in [Nishi Kant Jha v. State of Bihar, (1969) 1 SCC 347 ] if the exculpatory part of the statement of accused is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under Section 313 CrPC cannot be made the sole basis of his conviction. 40. In the matter in hand on the one side the prosecution has succeeded to prove its case beyond reasonable doubt on the basis of the cogent and reliable evidence whereas on the other side no explanation has been offered by the convict regarding the incriminating circumstances and evidence proved against him in his statement under Section 313 Cr.P.C. It is also pertinent to mention here that no defence evidence has been adduced by the convict/ appellant. 41. The prosecution story also find support from the fact that the murder weapon, blood stained axe, has been recovered from the possession of the accused when he was arrested by the police. The recovery memo Ex.Ka-13 has also been proved by Ist I.O-P.W.6. P.W.3, who is the independent witness of the aforesaid recovery has also identified his signature over this memo in his deposition. It is also noteworthy that the aforesaid murder weapon axe has been produced before the P.W.3, who has proved it as material Ex.1. The place of recovery of the murder weapon has also been proved through the site plan Ex.Ka-4 by P.W.4, the second I.O. 42. The prosecution has also proved the inquest report Ex.Ka-7 wherein the Panchas have also opined that the death of the deceased seems to be caused due to the injuries inflicted over her body. The papers relating to the post mortem Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10 have also been proved. The murder weapon and belongings of the deceased were sent for forensic test and FSL report Ext. The papers relating to the post mortem Ex.Ka-8, Ex.Ka-9 and Ex.Ka-10 have also been proved. The murder weapon and belongings of the deceased were sent for forensic test and FSL report Ext. Ka 14 also supports the prosecution case. 43. The trial Court has elaborately discussed the aforesaid points and has reached to the definite conclusion that the prosecution has succeeded to prove its case beyond reasonable doubt on the basis of the cogent, reliable, oral and documentary evidences and we concur with the same. Murder or Culpable Homicide not amounting to murder 44. However, 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 reads 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." 45. 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 I.P.Code. 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. 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 (a) with the intention of causing death; or (1) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (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. 46. From the upshot of the aforesaid discussion, it appears that the death was caused by the accused in unison and it was a homicidal death whether the same was not premeditated or premeditated, will have to be seen. From the evidence of P.W.1 it is crystal clear that the convict had no pre-meditation to do away with his mother. The quarrel took place between the two on account of sale of some land. He had not come on spot with the axe but during the course of quarrel he rushed angrily and brought the axe and made assault over his own mother. Thus the offence was committed at the spur of the moment and it cannot said that it was a premeditated cold blooded murder. Under these circumstance, it can be concluded that though the injuries over the body of the deceased were sufficient in the ordinary course of nature to have caused death, the accused had no intention to do away with the deceased, hence the instant case falls under the Exceptions 1 and 4 to Section 300 of IPC. While considering Section 299 IPC 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. While considering Section 299 IPC 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 into mind. 47. 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. Theory of Sentencing 48. During course of argument, learned counsel for the appellant has made an alternative prayer for reduction of the sentence and has submitted that the sentence of life imprisonment awarded to the appellant by the trial Court is very harsh. He has also submitted that the appellant is languishing in jail for the past more than 15 years. Hence a prayer has been made to reduce the sentence of the convict to 10 years. 49. 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 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. 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." 50. '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. 51. In Ravada Sasikala vs. State of A.P. AIR 2017 SC 1166 , the Hon’ble 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. 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 Hon’ble 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. 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. 52. Considering the facts and circumstances of the case and also keeping in view the 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. 53. 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 in the light of 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. 54. Recently In Mohd. Firoz v. State of M.P., (2022) 7 SCC 443 , the Hon'ble Supreme Court has held like this: 61....................One of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. 55. The maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender. 55. In latest decision in Khokan Alias Khokhan Vishwas vs. State of Chhattisgarh, (2021) 2 Supreme Court Cases 365 where the facts were similar to this case, the Apex Court has allowed the appeal of the accused appellant. 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 murder 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. 56. In view of the aforesaid discussions, we are of the view that appeal is liable to be partly allowed and the conviction of the appellant under Section 302 IPC is liable to be converted into conviction under Section 304 (Part-I) IPC. 57. In the facts and circumstances of the present case, while balancing the scale of retributive justice and restorative justice, we deem it appropriate to impose upon the appellant-convict the sentence of imprisonment for a period of 14 years under Section 304 Part-I instead of imprisonment for the remainder of his natural life for the offence under Section 302 I.P.C. 58. It is pertinent to mention here that the convict/accused is in jail since 16 years. We are astonished at the way that the State machinery functions as they have not even considered the case of the accused after the 14th year is over and thereby the purpose of Section 433 Cr.P.C., is frustrated which reads as follows: "433. Power to commute sentence. We are astonished at the way that the State machinery functions as they have not even considered the case of the accused after the 14th year is over and thereby the purpose of Section 433 Cr.P.C., is frustrated which reads as follows: "433. Power to commute sentence. The appropriate Government may, without the consent of the person sentenced, commute- (a) a sentence of death, for any other punishment provided by the Indian Penal Code; (b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine; (c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine; (d) a sentence of simple imprisonment, for fine". 59. It was brought to the notice of this Court that the convict has also a wife and three children, he is the sole earning member of the family, hence we deem it fit to substitute his punishment of life imprisonment to 14 years as it appears that he has not been even able to engage any advocate for him. This is the jail appeal pending since 2007 and very strangely after 10 years of its filing the matter has been numbered. 60. Accordingly, the appeal is partly allowed and the appellant is convicted for the offence under Section 304 Part-I I.P.C. and is sentenced to undergo 14 years of incarceration with remission. We maintain the fine amount and default sentence. The default sentence will start after 14 years, which would also now over. 61. The appellant shall be released immediately, if not, wanted any other offence. 62. We are thankful to Shri Ram Lal Mishra, counsel for the informant, Mr. Mohd. Furkan Khan, Law Clerk (Trainee), for ably assisting the Court.