JUDGMENT : AJAI TYAGI, J. 1. By way of this appeal the appellant Dharmendra Singh has challenged the judgment and order dated 17.03.2016 and order dated 18.03.2016 passed by learned Additional Sessions Judge/FTC (Women Criminal Case) Court No. 13, Shahjahanpur in Session Trial No. 330 of 2012 (State vs. Dharendra Singh and Others) arising out of Case Crime No. 175 of 2012, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act, Police Station- Tilhar, District- Shahjahanpur, whereby accused/appellant was convicted and sentenced under Section 302 IPC for a rigorous life imprisonment with the fine of Rs. 20,000/- and in default of payment of fine, the appellant shall further undergone for five months simple imprisonment. 2. The brief facts of the case as culled out from the record are that a first information report was filed by informant Dhakan Lal at Police Station-Tilhar, District-Shahjahanpur with the averments that the marriage of his daughter, aged 25 years, was solemnized with Dharmendra before two years, in which he has given dowry as per his financial condition, but after marriage Dharmendra and his parents started demanding a motorcycle as additional dowry. Due to non-fulfilment of the aforesaid demand, they started torturing his daughter. Today morning, he had information that Dharmendra and his parents have killed his daughter for want of additional dowry. On this information, the informant went to the matrimonial home of his daughter and found that his daughter’s dead body was lying on the cot. A Case Crime No. 175 of 2012 was registered at Police Station-Tilhar, District- Shahjahanpur u/s 304B, 498A IPC and u/s 3/4 Dowry Prohibition Act. 3. The law set into motion and investigation started. The dead body of the deceased was sent to post mortem after conducting the inquest proceedings. Doctor conducted the post mortem and prepared post mortem report. During the course of investigation, I.O. recorded the statements of witnesses u/s 161 of Cr.P.C. After completion of investigation, a charge sheet was submitted against the accused Dharmendra Singh, Mahesh Pal and Smt. Premwati u/s 304B, 498A IPC and 3/4 Dowry Prohibition Act and in alternative u/s 302 IPC and further u/s 4 Dowry Prohibition Act. Accused persons denied the charges and claimed to be tried. 4. The prosecution examined the following witnesses: 1. Dhakan Lal PW-1 2. Kalawati PW-2 3. Dr. Manoj Kumar PW-3 4. Komil Prasad PW-4 5. Usha Devi PW-5 6. Accused persons denied the charges and claimed to be tried. 4. The prosecution examined the following witnesses: 1. Dhakan Lal PW-1 2. Kalawati PW-2 3. Dr. Manoj Kumar PW-3 4. Komil Prasad PW-4 5. Usha Devi PW-5 6. Jhandu Ram PW-6 7. Bhagwandas Kathoriya PW-7 5. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading oral evidence: 1. FIR Ext. Ka-8 2. Written report Ext. Ka-1 3. P.M. Report Ext. Ka-2 4. Panchayatnama Ext. Ka-3 5. Charge-sheet Ext. Ka-5 6. Site plan Ext. Ka-7 6. After completion of prosecution evidence, the statements of accused persons, namely, Dharmendra and Smt. Premwati were recorded under Section 313 Cr.P.C. Accused Mahesh Pal Singh passed away during the course of trial. No defense witness was produced by accused persons. 7. Learned trial court after hearing the both the parties acquitted accused Smt. Premwati from all the charges levelled against her and convicted the appellant-accused Dharmendra Singh for alternative charge u/s 302 IPC and sentenced for life imprisonment and fine of Rs.20,000/-. Hence, this appeal by appellant-Dharmendra Singh. 8. Heard Shri Rajesh Kumar Mishra learned counsel for the appellant, Shri Patanjali Mishra, learned AGA for the State and perused the record. 9. Learned counsel for the appellant first of all submitted that this is a case of no evidence and appellant has been convicted without evidence on record. It is further submitted that witnesses of fact were examined by prosecution, namely, PW-1 Dhakan, who is father of the deceased and PW-2 Smt. Kalawati, who is mother of the deceased. Both these witnesses have not supported the prosecution case and they have turned hostile. Apart from these witnesses, PW-4 Komil Prasad and PW-5 Usha Devi are also examined by the prosecution as witnesses of fact, but they both have turned hostile and have not supported the prosecution case. Hence, there is no evidence on record that any additional dowry was demanded by appellant from the deceased or his parents and also there is no evidence on record that the deceased was subjected to cruelty in connection with demand of additional dowry. Hence, there is no evidence on record that any additional dowry was demanded by appellant from the deceased or his parents and also there is no evidence on record that the deceased was subjected to cruelty in connection with demand of additional dowry. But learned trial court has convicted the appellant u/s 302 IPC with the aid of Section 106 of Indian Evidence Act, which has no applicability in this case because prosecution has failed to prove that at the time of alleged occurrence appellant was inside the house. It is also contended that learned trial court has also reached to the conclusion that no offence u/s 498A and 304B IPC is made out against the appellant. 10. Learned AGA opposed the submissions made by learned counsel for the appellant and submitted that there is ample evidence on record that the deceased was done away by the appellant only. The appellant is husband of the deceased and the dead body of the deceased was found in the house of the appellant. Hence, it was burden on the shoulders of the appellant to prove that he has not committed the offence but he has offered no explanation in this regard. It is further submitted by learned AGA that medical evidence corroborates the prosecution story and the prosecution witnesses, relating to the fact, have not supported the case because they were won over by the appellant. Even then PW-1, father of the deceased, has supported the prosecution version in his examination-in-chief. It was a case of death due to asphyxia and the learned trial court has rightly taken the recourse of Section 106 of Indian Evidence Act. It is proved beyond reasonable doubt that the death of the deceased was caused by the appellant and by non-else. Hence, there is no illegality or infirmity in the impugned judgment which calls for any interference by this Court. 11. It is admitted position on record that learned trial court has held in impugned judgment that prosecution could not prove the case for the offences u/s 498A, 304B IPC and u/s 4 Dowry Prohibition Act. Accused-appellant is convicted for the offence u/s 302 IPC on the basis of alternative charge with the aid of Section 106 of Indian Evidence Act. 12. Although, all the witnesses of fact, namely, PW-1, PW-2, PW-4 and PW-5 have turned hostile and have not supported the prosecution version. Accused-appellant is convicted for the offence u/s 302 IPC on the basis of alternative charge with the aid of Section 106 of Indian Evidence Act. 12. Although, all the witnesses of fact, namely, PW-1, PW-2, PW-4 and PW-5 have turned hostile and have not supported the prosecution version. In fact PW-1, father of the deceased, has supported the prosecution version in his examination-in-chief but during the course of cross-examination he has resiled from his previous statement and has not supported the prosecution case. The law regarding the hostility of the witness is clear that the testimony of any witness cannot be discarded as a whole on the basis of hostility. “Falsus in uno, falsus in omnibus” is not applicable in India. It is the duty of the Court to separate the grain from chaff. Hence, on the basis of evidence on record, we are of the definite opinion that death of the deceased was homicidal and we are not convinced that appellant is innocent. But on the basis of evidence available on record, since the demand of additional dowry is not proved, we have considered the case from the angle where the death of the deceased was murder or culpable homicide not amounting to murder. 13. 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.” 14. 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. 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 if 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. 15. 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 Others vs. State of Maharashtra, (2011) 4 SCC 250 and B.N. Kavatakar and Another vs. State of Karnataka, 1994 Supp. (1) SCC 304, we are of the considered opinion that it was a case of homicidal death not amounting to murder. 16. The prosecution witnesses as well as medical evidences proved that it was a homicidal death which had occurred due to asphyxia. 17. From the upshot of the aforesaid discussions, it appears that the accused though had knowledge and intention that his act would cause bodily harm to the deceased but did not want 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 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. (2011) 5 SCR 300 which have to be also kept in mind. 18. 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. (2011) 5 SCR 300 which have to be also kept in mind. 18. This takes us to the alternative submission of learned counsel for the appellants that the quantum of sentence is too harsh and requires to be modified. In this regard, we have to analyse the theory of punishment prevailing in India. 19. In Mohd. Giasuddin vs. State of A.P. AIR 1977 SC 1926 , explaining rehabilitary and 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. If you are to reform him, you must improve him and, men are not improved by injuries.” 20. ‘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. 21. 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. 21. 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. 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. 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. 22. 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. 23. 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. 24. Hence, we modify the conviction of the appellant and conviction of appellant is converted from Section 302 IPC into 304 (Part I) IPC and the appellant is awarded rigorous imprisonment for 10 years and fine of Rs. 5,000/-. The appellant shall undergo simple imprisonment of six months in case of default of fine. The fine shall be paid by the appellant within four weeks after releasing from jail and jail authority shall ensure that appellant shall be put into re-incarceration in case fine is not paid within the aforesaid period. 25. Accordingly, the appeal is partly allowed with the modification of sentence, as above. 26. Record and proceedings be sent back to the lower court.