JUDGMENT : 1. Heard learned counsel for the appellant and learned A.G.A. for the state. 2. This appeal challenges the judgment and order dated 01.01.2013 passed by Addl. Sessions Judge Court No. 13, Varanasi in Session Trial No. 500 of 2010 (State of U.P. Vs. Shyam Deo and others) convicting the appellants under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred to as 'IPC) with life imprisonment and a fine of 5000/- has also been imposed, in default of which the appellants shall have to under go for further three months imprisonment and appellant no.2 has been convicted under Section 498A I.P.C. with three year rigorous imprisonment and a fine of Rs. 2000/-has also been imposed, in default of which the appellant no.2 shall have to go for a term of further two month imprisonment. 3. Brief facts as culled out from the record are that the marriage of the deceased was solemnized with Shyam Deo. The F.I.R. discloses that in the wedding the accused-appellants were given enough dowry but despite that they started harassing deceased and demanded a sum of Rs. 50,000/-and a motorcycle. When the said demand could not be fulfilled, the deceased was harassed by all the accused. Some person had conveyed to the informant that the accused persons had poured kerosene oil on the deceased and had tried to set her ablaze. On the basis of the complaint of the brother of the deceased, the First Information Report was registered on 20.04.2010. The investigation started for commission for offence under Section 498A and 304B Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act. Investigation culminated into charge-sheet being laid against Shyam Deo (husband of the deceased), Vindhyanchali (Sister-in-law/ Jethani) under Sections 498A and 304B of IPC and Section 3/4 of D.P. Act. On these brief facts the prosecution was put into motion. 4. The accused were summoned and charges were framed by learned Additional Sessions Judge under Sections 498A and 304B of IPC and Section 4 of D.P. Act with alternative charges under Section 302 read with Section 34 of IPC. The accused-persons pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused-appellants was committed to the Court of Sessions. 5. The accused-persons pleaded not guilty and wanted to be tried. The offence for which accused was charged was triable by the Court of Sessions, hence, the accused-appellants was committed to the Court of Sessions. 5. The Trial started and the prosecution examined 8 witnesses who are as follows: 1 Vinod Sahani PW1 2 Gudiya PW2 3 Kuttar Devi PW3 4 Mratyunjay Singh PW4 5 Dr. D.K. Singh PW5 6 Dr. Alok Singh PW6 7 Dr. D.K. Kashyap PW7 8 Ramanad Kushwaha PW8 6. In support of ocular version following documents were filed: 1 Written Report Ex.Ka.1 2 Dying Declaration Ex.Ka.2 3 Postmortem Report Ex.Ka.6 4 Death Certificate Ex.Ka.4 5 Information after death Ex. Ka.5 6 Panchayatnama Ex.Ka.8 7 Site Plan with Index Ex. Ka.7 8 Charge Sheet Ex. Ka.9 7. The learned Additional Sessions Judge has convicted the accused-appellants as above. 8. Learned counsel for the appellant has relied on the decisions of Apex Court passed in Criminal Appeal No. 1418 of 2004 (Bengai Mandal alias Begai Mandal vs. State of Biha) decided on 11th January, 2010, in Criminal Appeal No.514 of 2010 (Chirra Shivraj vs. State of Andhra Pradesh) decided on 26 November, 2010, and decisions of this Court in Criminal Appeal No.1438 of 2010 (Smt. Rama Devi alias Ramakanti vs. State of U.P.) decided on 7.10.2014 and Criminal Appeal No. 2558 of 2011 (Smt. Kanti and Another vs. State of U.P.) decided on 1.2.2021 and has contended that there is faulty charge and the charge could not have been re-framed after the examination of witnesses of prosecution side, who did not support the prosecution. This is the contention of the learned counsel for the appellant, and in the alternative, it is submitted that this is a case which does not go beyond Section 304 Part I or Part II of IPC. There was no intention of the accused to do away with the deceased and the death was due to septicemia after 11 days of incident as per the testimony of P.W.1 also that she died after 11 days of incident. 9. As against this, learned A.G.A. for the State has contended that the dying declaration is believable and, therefore, the learned Judge has not committed any error or there is no error which calls for interference by this Court in this appeal. 9. As against this, learned A.G.A. for the State has contended that the dying declaration is believable and, therefore, the learned Judge has not committed any error or there is no error which calls for interference by this Court in this appeal. Moreover, looking to the gruesomeness of the offence and the evidence of prosecution witnesses, this Court should not show any leniency in the matter. It is further submitted by learned A.G.A. that ingredients of Section 300 of IPC are rightly held to be made out by the learned Sessions Judge who has applied the law to the facts in case. 10. We have considered the evidence of witnesses and the Postmortem report which states that the injuries on the body of the deceased would be the cause of death and that it was homicidal death, we concur with the finding of the Court below. 11. Learned counsel for the appellant has submitted that the deceased died due to burn injuries which she sustained accidentally while cooking food. While going through the dying declaration and the postmortem report, we cannot accept the submission of counsel for the accused-appellants that it was an accidental death. 12. Therefore, we are of the considered opinion that the learned Judge has not committed any mistake in relying on the dying declaration. In the light of the decision in Govindappa and others Vs. State of Karnataka, (2010) 6 SCC 533, there is no reason for us not to accept the dying declaration and its evidentiary value under Section 32 of Evidence Act, 1872. We are convinced that P.W.3 was also conveyed by the deceased about the incident and, therefore, the contention of the counsel that it was an accidental death arising out of accidental burning during cooking in the house cannot be accepted. We are of the view that it was a homicidal death and not accidental death. 13. This takes us to the next question whether it was a perpetrated murder or would it fall within any of the exceptions to Section 300 of IPC? 14. It would be relevant to refer to Section 299 of the Indian Penal Code, which reads as under: “299. 13. This takes us to the next question whether it was a perpetrated murder or would it fall within any of the exceptions to Section 300 of IPC? 14. It would be relevant to refer to 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." 15. The academic distinction between ‘murder’ and ‘culpable homicide not amounting to murder’ has always vexed the Courts. The confusion is caused, if Courts loose sight of the true scope and meaning of the terms used by the legislature in these sections, and allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be is 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 if 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. 16. It is an admitted position of fact that the death was due to septicemia and had occurred after 11 days of incident. The accused-appellants are husband and sister-in-law (jethani) of the deceased. 16. It is an admitted position of fact that the death was due to septicemia and had occurred after 11 days of incident. The accused-appellants are husband and sister-in-law (jethani) of the deceased. The accused-appellants are in jail for more than 10 years and they are not arguing for clean acquittal and requesting for lesser sentence. Hence, 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 & Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 , we come to the definite conclusion that the death was not premeditated. The precedents discussed by us would permit us to uphold our finding which we conclusively hold that the offence is not punishable under Section 302 of I.P.C. but is culpable homicide not amounting to murder, punishable U/s 304 (Part II) of I.P.C. We are also fortified in our view by the decisions relied upon by learned Counsel for the appellants in Bengai Mandal alias Begai Mandal vs. State of Biha, Chirra Shivraj vs. State of Andhra Pradesh, Smt. Rama Devi alias Ramakanti vs. State of U.P. &b Smt. Kanti and Another vs. State of U.P. (Supra). 17. It is now to be seen as to what would be the quantum of sentence. In this regard, we have to analyse the theory of punishment prevailing in India. 18. 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." 19. '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. 20. 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. 21. Keeping in view the facts and circumstances of the case and also keeping in view criminal jurisprudence in our country which is reformative and corrective and not retributive, this Court considers that no accused person is incapable of being reformed and therefore, all measures should be applied to give them an opportunity of reformation in order to bring them in the social stream. 22. 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. 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. 23. The accused-appellants are reported to have undergone 12 years of sentence and therefore, we hold that the period undergone will be sufficient punishment. Fine and default sentence are maintained. The accused-appellants be set free forthwith, if not wanted in any other case. He will deposit the fine within four weeks from the date of release and in case fine is not deposited he will be procured to undergo the sentence of default. 24. In view of the above, the appeal is partly allowed. Judgment and order passed by the learned Sessions Judge shall stand modified to the aforesaid extent. Record be sent back to the Trial Court forthwith. 25. Therefore, we convert the sentence of accused appellants from 'life imprisonment' to 10 years' rigorous imprisonment. Fine and default sentence are maintained. If 10 years of incarceration is over. The accused-appellants be set free, if period of sentence and default sentence are over, if not wanted in any other case.