JUDGMENT : [K.J. Thaker, J.] 1. Heard Sri Rajiv Lochan Shukla, learned counsel assisted by Sri Neeraj Kumar Sharma, Sri Shanda Prasad Mishra, learned counsels for appellant, learned A.G.A. for the State. 2. The record is before this Court hence instead of deciding application for release on bail we venture to decide the main appeal as appellant is in fact since 15.07.2017 and is an aged lady. 3. This appeal challenges the judgment and order dated 12.09.2018 passed by Additional Sessions Judge, Court No.5, Ghaziabad in Sessions Trial No.07 of 2018 convicting accused-appellant under Sections 498A & 304B of Indian Penal Code, 1860 (hereinafter referred to as 'IPC') and Section 3/4 of the Dowry Prohibition Act, Police Station Masoori, District Ghaziabad alternate charge under Section 302 IPC read with Section 34 IPC and sentenced the accused to undergo imprisonment for life with fine of Rs.20,000/-under Section 302 of I.P.C. and half of the amount of the total fine has to be paid to Munni, the mother of the deceased. 4. Factual scenario as culled out from the record and the judgment of the Court below is that the complainant lodged a complaint that his daughter was married with Sumit alias Bholu. After she went to matrimonial home, she was being harassed for dowry. The family members of the accused and accused demanded motorcycle and Rs.50,000/-. Incident occurred on 29.04.2017, she was set ablaze by pouring kerosene on her in which, she suffered grievous injuries and she was sent to Safdarganj Hospital, Delhi for further treatment where she died on 06.05.2017. The complainant lodged the complaint on 30.04.2017. 5. Investigation was moved into motion. After recording statements of various persons, the investigating officer submitted the charge-sheet against accused under 498A & 304 B of I.P.C. and Section 3/4 of Dowry Prohibition Act, 1961 (in short 'D.P. Act'). The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 498A, 304B, 302/34 of I.P.C. & Section 4 of D.P. Act. 6. The learned Chief Judicial Magistrate before whom charge sheet was laid put the same before the learned Sessions Judge. The learned Sessions Judge, on hearing the learned Government Advocate and learned counsel for the accused, framed charges under Section 498A, 304B, 302/34 of I.P.C. & Section 4 of D.P. Act. 6. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 9 witnesses who are as follows: 1 Rama PW1 2 Keshpal PW2 3 Munni PW3 4 Kuldeep PW4 5 Esha PW5 6 Dr. Vedant Kulshrestha PW6 7 Ravindra Kumar Singh PW7 8 Atar Singh PW8 9 Pawan Kumar PW9 10 Jogendra PW10 11 Ishwar Singh PW11 12 Aatish Kumar Singh PW12 13 Danish Alam PW13 14 Rajkumar Pandey PW 14 15 Ravindra Yadav PW15 7. In support of ocular version following documents were filed: 1 F.I.R. Ex.Ka.7 2 Written Report Ex.Ka.1 3 Statement of Gunjan Ex. Ka.3 4 Medico-Legal Report Ex.Kha.1 5 Postmortem report & Death Report Ex.Ka.2 6 Death summary Ex.Kha.2 7 Final Form/Report Ex.Ka.8 8. At the end of the trial and after recording the statement of the accused under section 313 of Cr.P.C., and hearing arguments on behalf of prosecution and the defence, the learned Sessions Judge convicted the appellants as mentioned aforesaid. 9. It is submitted by learned counsel for accused-appellant that the accused is in jail since 15.07.2017. 10. Learned counsel for the appellant has vehemently submitted that dying declaration is not worth believing. It is submitted that it is an admitted position of fact that deceased died out of septicemia after seven days of incident. 11. It is further submitted by learned counsel for the appellant that most of the witnesses have turned hostile (thereby have not supported the prosecution) despite that, learned Sessions Judge has convicted accused/appellant for commission of offence under Section 302 of I.P.C. 12. In support of the his submission, learned counsel for the appellant has relied on (i) Sohan Lal alias Sohan Singh and others v. State of Punjab, AIR 2003 SC 4466 ; (ii) Panchdeo Singh v. State of Bihar, AIR 2002 SC 526 ; (iii) Kanti Lal v. State of Rajasthan, (2009) 12 SCC 498 ; (iv) Krishna Chandra v. The State of U.P., 1996 Crl. LJ 1507; (v) AIR 2008 SC 426, Sher Singh v. State of Punjab, so as to contend that the dying declaration has being wrongly relied by court below so as to convict the accused who is innocent. 13. In alternative, it is submitted that if this court concerns with the trial court that it was accused who was author of the offence at the most punishment can be under Section 304 II or Section 304 I of I.P.C as the deceased died after few days. If the Court feels, as the accused has been in jail for more than 5 years without remission, she may be granted fixed term punishment of incarceration. It is submitted that accused had no intention to do away with the deceased. 14. Learned A.G.A. for the state has vehemently submitted that facts of this case will not permit the Court to convert the sentence to that under Section 304 Part I of I.P.C. as none of the judgments relied by the accused-appellant will apply to the facts of this case as the accused is proved to have committed the offence. 15. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind that it was homicidal death. The question whether it was accused who was perpetrator. The dying declaration of deceased corroborates with medical evidence Section 32 of Evidence Act for believing dying declaration that it was accused who was guilty of committing the offence. 16. 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. of the Indian Penal Code 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." 17. 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 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. 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. 18. 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. 19. 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. 19. 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. 20. In latest decision in Khokan@ Khokhan (Supra) 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 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. 21. All others judgments which were pressed into service by the learned counsel for the appellant are not discussed as that would be repetition of what we have decided. 22. 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. 22. 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. If you are to reform him, you must improve him and, men are not improved by injuries." 23. '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. 24. 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. 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. 25. 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. 26. 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. 27. We come to the definite conclusion that the death was due to septicemia. The judgments cited by the learned counsel for the appellant would permit us to uphold our finding which we conclusively hold that the offence is not under Section 302 of I.P.C. but is culpable homicide and, therefore, we convict accused under Section 304(II) IPC and sentence of the accused appellant is reduced to the period already undergone till date. 28. Appeal is partly allowed. Record and proceedings be sent back to the Court below forthwith. 29. This Court is thankful to learned Advocates for ably assisting the Court.