Uttarakhand High Court
4 August vs State Of Uttarakhand on 14 August, 2025
Author: Ravindra Maithani
Bench: Ravindra Maithani
2025:UHC:7246-DB
Reserved on: 01.08.2025
Delivered on: 14.08.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Appeal No. 140 of 2017
14 August, 2025
Lalita Prasad Karnatak
--Appellant
Versus
State Of Uttarakhand
--Respondent
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Presence:-
Ms. Pushpa Joshi, Senior Advocate assisted by Ms. Chetna Latwal, Advocate for
the appellant.
Mr. J.S. Virk, D.A.G. with Mr. R.K. Joshi, Brief Holder for the State.
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Corum: Hon'ble Mr Justice G. Narendar, C. J.
Hon'ble Ravindra Maithani, J.
JUDGMENT
Per: Hon’ble Ravindra Maithani, J.
The challenge in this appeal is made to the
judgment and order dated 11.05.2017, passed in Special Sessions
Trial No. 14 of 2016, State Vs. Lalita Prasad Karnatak and Others,
by the court of Special Sessions Judge, Bageshwar. By the
impugned judgment and order, the appellant has been convicted
under Section 302 IPC and sentenced to life imprisonment and Rs.
20,000/- fine with further stipulations that in case of default in
payment of fine, the appellant shall undergo rigorous
imprisonment for a further period of one year.
2. The prosecution case, briefly stated, is as follows:
On 05.10.2016, the deceased Sohan Ram had visited the flour mill
(“the mill”) of PW4, Kundan Singh Bhandari, for grinding wheat.
Suddenly, at 6:00 PM, the appellant appeared there, holding a
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sickle in his hand. The appellant abused the deceased with castecoloured remarks saying that as to how dare he visit the mill for
grinding wheat, as due to his visit, the mill has become impure.
The deceased Sohan asked the appellant not to speak in that
manner, but the appellant hit the deceased on his neck by the
sickle. Due to excessive bleeding, the deceased died at the spot.
Upon having raised alarm, many villagers reached there. Anand
Ballabh Karnatak and Ghanshyam Karnatak, who are the brother
and the father of the appellant, respectively, also reached at the
spot. They extended threats in caste coloured remarks.
3. According to the prosecution case, PW1, Ramesh
Ram, the uncle of the deceased Sohan Ram was in the fields at the
relevant time. When he got the news, he came at the spot. He was
told by PW4, Kundan Singh, as to what had happened to the
deceased. Thereafter, he lodged the First Information Report, based
on which chik FIR was lodged and Case Crime No.09/2016, under
Section 302, 506 IPC and Section 3(1)(x)/3(2)(v) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(“the Act”), was lodged. The investigation was carried out. It was
dark on the date of incident, therefore, the inquest was prepared
on 06.10.2016, and post-mortem of the deceased was done on
07.10.2016. Only one injury was noted on the body of the
deceased. According to the Doctor, the time of death was about 12-
24 hours.
4. On 06.10.2016, after the inquest, the Investigating
Officer (“IO”) visited the place of incident. He took into possession
the blood stained soil and plain soil and prepared its recovery
memo. He also arrested the appellant and at the instance of the
appellant, the sickle, which was used in the offence, was also
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recovered from his kitchen. The IO also prepared the site plan of
the place of incident as well as the place from where the sickle was
recovered. He forwarded all those articles for forensic examination.
The forensic examination confirmed that the blood that was
detected on the sickle belongs to the deceased. After investigation,
the IO submitted chargesheet under Section 302 IPC and Sections
3(1)(r)(s) and 3(2)(v) of the Act against the appellant. Chargesheet
was also submitted against the named accused, Ghanshyam
Karnataka and Anand Karnataka under Section 506 IPC and
Section 3(1)(r)(s) of the Act. On 02.01.2017, charges were framed
on the appellant for the offences punishable under Sections 302
IPC and Section 3(1)(r)(s) and Section 3(2)(v) of the Act. The
appellant did not plead guilty and claimed trial. Charges were also
framed on Ghanshyam Karnataka and Anand Karnataka. They
both have been acquitted of the charge. Therefore, the Court
refrains from making any discussion about them.
5. The prosecution has examined as many as 13
witnesses, namely, PW1, Ramesh Ram, PW2, Harish Ram, PW3,
Sohan Singh Bhandari, PW4, Kundan Singh, PW5, Dr. Ajay Bisht,
PW6, Keshav Ram, PW7, Rajan Ram, PW8, Pradeep Kumar, PW9,
K.S. Rawat, PW10, Shashi Prabha Tomar, PW11, Kailash Singh
Dev, PW12, Fakir Ram, and PW13, Rayman Singh Nabiyal.
6. After prosecution evidence, the appellant was
examined under Section 313 of the Code of Criminal Procedure,
1973 (“the Code”). According to him, he has been falsely
implicated.
7. In defence, the appellant had produced four
witnesses, namely, DW1, Trivendra Kumar, DW2, Prakash
Chandra, DW3, Jagdish Chandra Pandey, and DW4, Pramod Singh
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Dhapola.
8. After hearing the parties, by the impugned
judgment and order, while the applicant has been acquitted of the
charge under Sections 3(1)(r)(s) and 3(2)(v) of the Act, he has been
convicted and sentenced under Section 302 IPC, as stated
hereinbefore. Aggrieved by it, the appellant is in appeal.
9. Heard learned counsel for the parties and perused
the record.
10. Learned Senior Counsel appearing for the appellant
submits that the time of death is not certain; as per PW1, Ramesh
Ram, he received information at about 4:00-4:30 PM that the
deceased has sustained injuries, whereas, it is argued that as per
the FIR, the incident allegedly took place at about 6:00 PM; post-
mortem of the deceased was conducted on 07.10.2016 at 10:00 AM
and it records the time of death is about 12-24 hours, which
means that the prosecution case is not reliable. She also raised the
following points in her submission:-
(a) Had the blood stained soil been taken from
the place of incident, it would have been
shown in the site plan, Annexure A-29, but
it is not so shown in it. Therefore, it makes
the case doubtful.
(b) PW7, Rajan Ram, is not named in the FIR.
He has been introduced after consultation.
His evidence is not reliable.
(c) PW12, Fakir Ram, the father of the
deceased, has admitted that they had no
enmity with the appellant.
(d) It is a case of single blow, which caused the
injury. Therefore, it is not a case under
Section 302 IPC, instead, it may fall under
Section 304 Part II IPC.
11. In support of her contention, learned Senior
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Counsel has placed reliance upon the principles of law, as laiddown by the Hon’ble Supreme Court in the case of Kesar Singh
and Another Vs. State of Haryana, (2008) 15 SCC 753. In the case
of Kesar Singh (supra), the Hon’ble Supreme Court discussed the
distinction between the first part and second part of Section 304
IPC. Having regard to the provisions of Sections 299 and 300 IPC,
the Hon’ble Supreme Court observed as follows:-
“9. The distinction between the first part and the second part of
Section 304 of the Penal Code, therefore, must be considered
having regard to the provisions contained in Sections 299 and 300
of the Penal Code. Clause (a) of Section 299 corresponds to clause
(1) of Section 300, clause (b) of Section 299 corresponds with
clauses (2) and (3) of Section 300 and clause (c) of Section 299
corresponds with clause (4) of Section 300 of the Code. This can
best be understood if Sections 299 and 300 of the Code are noticed
side by side:
Section 299 Section 300
A person commits culpable homicide, if Subject to certain exceptions culpable
the act by which the death is caused is homicide is murder, if the act by which the
done death is caused is done
(a) With the intention of causing (1) With the intention of causing
death; or death; or
(b) With the intention of causing (2) With the intention of causing such
such bodily injury as is likely bodily injury as the offender knows
to cause death; or to be likely to cause the death of
the person to whom the harm is
caused; or
(c) With the knowledge that ...the (3) With the intention of causing
act is likely to cause death bodily injury to any person and the
bodily injury intended to be
inflicted is sufficient in the
ordinary course of nature to cause
death; or
(4) With the knowledge that act is so
imminently dangerous that it must
in all probability cause death or
such bodily injury as is likely to
cause death, and there is no
excuse for incurring the risk.
10. The distinguishing feature is the mens rea. What is prerequisite
in terms of clause (2) of Section 300 is the knowledge possessed by
the offender in regard to the particular victim being in such a
peculiar condition or state of health that the intentional harm
caused to him is likely to be fatal. Intention to cause death is not
an essential ingredient of clause (2). When there is an intention of
causing a bodily injury coupled with knowledge of the offender as
regards likelihood of such injury being sufficient to cause the death
of a particular victim would be sufficient to bring the offence within
the ambit of this clause. For determination of the said question, it
would be convenient if the exceptions contained in Section 300 are
taken into consideration as (sic and) if the case falls under the said5
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exceptions there would not be any question of applicability of the
main provision of Section 300 of the Penal Code.
11. The distinction between culpable homicide amounting to
murder and not amounting to murder is well known. Culpable
homicide is genus, murder is its specie. The culpable homicide,
excluding the special characteristics of murder, would amount to
culpable homicide not amounting to murder. The Code recognises
three degrees of culpable homicide. When a culpable homicide is of
the first degree, it comes within the purview of the definition of
Section 300 and it will amount to murder. The second degree which
becomes punishable in the first part of Section 304 is culpable
homicide of the second degree. Then there is culpable homicide of
third degree which is the least side of culpable homicide and the
punishment provided for is also the lowest among the punishments
for the three grades. It is punishable under the second part of
Section 304.”
12. On the other hand, learned State Counsel submits
that the incident took place when the deceased had visited the mill
of PW4, Kundan Singh. PW4, Kundan Singh, is a natural and
reliable witness. Soon after the incident, PW1, Ramesh Ram, had
also reached at the place of incident. He lodged the FIR, based on
the information given to him by PW4, Kundan Singh. It is argued
that, in fact, PW7, Rajan Ram, has also supported the prosecution
case. He admits that it is a case of single blow injury, and there is
no admitted enmity between the deceased and the appellant.
13. Before proceeding further, it would be apt to
examine the evidence, which has been adduced by the prosecution
in the trial.
14. PW4, Kundan Singh, is an important witness, who
is the owner of the mill. According to him, on 05.10.2016, the
deceased had visited his mill for grinding wheat. It was about 6:00
in the evening. The deceased was sitting on a bench. The grinding
was underway. In the meanwhile, the appellant also came there.
He had a sickle in his hand. He also sat with the deceased on the
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bench. They were talking to each other. Once the grinding was
over, this witness closed the mill. The deceased and the appellant
both came out from his mill. He was locking the doors of his mill.
He had locked one door. He was still inside when he suddenly
heard the deceased calling that the appellant has cut him.
Immediately, this witness came out of the mill and saw that the
appellant was running away from the place while still holding
sickle in his hand. At that time, the deceased was crying that,
“save me. The appellant has cut me.” He was down on the ground.
He was bleeding from his neck. This witness raised alarm and
called some other persons at the place of incident. The deceased
died. Police also reached at the place of incident at about 8:00-8:30
PM. PW4, Kundan Singh, has stated that the next day, the
proceeding of the inquest was done. Police also arrested the
appellant and at his instance, a sickle was recovered. He has
proved the recovery memo. According to him, police has also
collected blood-stained and plain soil from the place of incident
and prepared recovery memo thereof. This witness has also proved
his statement recorded under Section 164 of the Code.
15. PW1, Ramesh Ram, has proved the FIR. The
contents of it have already been narrated hereinbefore. He has also
proved the recovery memo of the sickle saying that it was recovered
at the instance of the appellant from his kitchen. He proved those
articles, including the sickle.
16. PW7, Rajan Ram, has given eye witness account of
the incident. According to him, he was at a distance from the place
of incident, when he saw the appellant attacking the deceased
outside the mill. Out of fear he ran away and after a few days, he
informed it to the police that he was witness of the incident.
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17. PW2, Harish Ram, has not supported the
prosecution case.
18. PW3, Sohan Singh Bhandari, is a witness of
inquest.
19. PW-9, K.S. Rawat, is the person, who reached at
the spot at about 8:30 PM. He was also accompanied by PW-11,
S.I. Kailash Dev. PW11, SI Kailash Singh Dev, has stated that he
recorded Panchnama on the direction and dictation of PW9, K.S.
Rawat. PW9, K.S. Rawat, has also stated about the inquest and
other documents, which were prepared for sending the dead body
for post-mortem.
20. PW5, Ajay Bisht, conducted the post-mortem of the
dead body on 07.10.2016 at 10:00 AM. He has proved the post
mortem report. According to him, there was one incised wound
present over the back of the neck, on middle point, with bleeding
present over the whole of the neck. The size of the incised wound
was 6 cm in length, 3 cm in breadth and 3 cm deep. According to
this witness, the cause of the death was excessive bleeding, and
spinal shock due to ante mortem injury over the back of neck. He
has also explained that in the external examination, the rigor
mortis was only on the legs, which remains till 36 hours of the
death. According to this witness, the deceased could have died on
05.10.2016, at 6:30 PM.
21. PW6, Keshav Ram, is a formal witness. He has
recorded chik FIR and entered it into his general diary entry of the
police station. He has also stated about other general diary entries
relating to the investigation of the case.
22. PW10, Shashi Prabha Tomar, is a Scientific Officer
in the Forensic Science Laboratory, Dehradun. She has stated
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about the forensic report. The report concludes as follows:-
“On the basis of above observations, it is concluded that:
1. Blood detected in the exhibit-1 to exhibit-7.
2. Blood stains obtained from the Daranti: exhibit-1
(said to be collected from the kitchen of the accused
house) and Shirt: exhibit-3, Pant: exhibit-4, Belt:
exhibit-5, Piece of Sari: exhibit-6 and Pair of
sleepers: exhibit-7 (said to be of the deceased) are
from the same human male course.
3. Blood was disintegrated in the exhibit-2 therefore
origin of species could not be determined.”
23. PW12, Fakir Ram, is the father of the deceased. He
was not the eye witness. He had given the caste certificate, family
register, Ration card and other documents to the IO. He has stated
about it. He has stated that he has no enmity with the appellant.
24. PW13, Rayman Singh Nabiyal, is the IO. He has
proved the site plan, chargesheet, etc.
25. In defence, the appellant has also adduced
evidence. DW1, Trivendra Kumar, has stated that the applicant is
a teacher, and on 05.10.2016, he was in his school. According to
him, on that date, he had seen the appellant returning to his home
at about 8:00-8:30 PM. It does not help the defence because
allegedly the incident took place at around 6:00 PM on that date. If
thereafter the appellant returned to his home, it, in no manner,
establishes that he has not committed the offence.
26. DW2, Prakash Chandra, has similarly stated that
on 05.10.2016, at about 7:00 PM, the appellant was returning to
his home.
27. DW3, Jagdish Chandra Pandey, has stated that on
05.10.2016, the appellant was in his school.
28. DW4, Pramod Singh Dhapola, has also stated
about the presence of the appellant in the school on 05.10.2016.
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29. The incident did not take place during school
hours. It took place at about 6:00 PM. Therefore, the defence
evidence, in no manner, discards the prosecution case.
30. Insofar as the time of death is concerned, it is true
that PW1, Ramesh Ram, has stated that he received information at
4:00-4:30 PM that the deceased has sustained injury, but merely
on this statement of this witness, it cannot be said that the time of
death, as recorded in the FIR, is doubtful. The witnesses are
villagers. It is not expected of them to reveal the time of incident
with precision. Moreover, the statement of PW1, Ramesh Ram, in
the first paragraph, itself, makes it clear that he had no watch on
the date of incident. He is not literate. His estimation of time
cannot be said to be precise. In fact, it is PW4, Kundan Singh, who
is an important witness. According to him, the incident took place
at about 6:00 PM.
31. It is true that the post-mortem of the dead body
was done on 07.10.2016 at about 10:00 AM, and, according to the
post-mortem report, the duration of death was about 12-24 hours.
Based on it also, it cannot be said that the death could not have
taken place on 05.10.2016, at about 6:00 PM because PW5, Dr.
Ajay Bisht, has further explained it. According to him, in the post-
mortem report, he has recorded time of death 12-24 hours. He has
further explained that in the external examination rigour mortis
was on the legs only, which remains uptil 36 hours of the death.
According to this witness, the death is possible on 05.10.2016, at
6:30 PM.
32. In the instant matter, the statement of PW4,
Kundan Singh, is inspiring confidence. He has no reason to speak
otherwise. He has been cross-examined extensively, but nothing
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has been extracted in his cross-examination, which may, in any
manner, doubt his testimony.
33. It may be noted at this stage that the version of the
incident, as given in the FIR, is slightly different than what has
been stated by PW4, Kundan Singh. According to the FIR, the
incident took place inside the mill after a short altercation between
the deceased and the appellant, whereas, it is not the case at
hand. The genesis and execution of the offence, as stated in the
FIR, has, as such, been not proved. As stated, PW4, Kundan
Singh, is the sole person, who was in the mill, when the incident
took place. His testimony is natural and is transpiring confidence.
34. The statement of PW4, Kundan Singh, reveals that
when the wheat was being grinded in the mill of this witness, the
deceased was sitting on a bench. The appellant also joined him
and they started talking to each other. When both of them left and
this witness was in the process of locking the door, he heard the
deceased shouting that he has been cut by the appellant. And
when he came out, he saw the appellant running with the sickle
and the deceased bleeding from his neck, who subsequently died.
This part of statement of PW4, Kundan Singh, is totally reliable. It
rules out presence of any other person at the place of incident.
35. According to PW4, Kundan Singh, soon after the
incident, the deceased told him that he has been cut by the
appellant. This statement of the deceased given to PW4, Kundan
Singh, is relevant and most important. It can be read into
evidence. It establishes beyond doubt that the deceased died due
to attack made on his neck with a sickle by the appellant.
36. There is another factor. Witnesses have stated that
the sickle was recovered at the instance of the appellant from his
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kitchen, on 06.10.2016. The recovery memo has been proved. The
sickle had blood on it, and the Forensic Science Laboratory
confirms that it had blood of the deceased.
37. The presence of PW7, Rajan Ram, is not recorded
in the FIR, but, merely because of it, his evidence does not become
unreliable. But, fact remains that according to this witness, he
revealed the incident to the police long after the incident.
According to him, he was scared, therefore, he did not reveal it to
the police, immediately about the incident. Though, he was there
present after the incident also. It somehow doubts the credibility of
this witness and undoubtedly, the statement of PW7, Rajan Ram,
is not as such, which can be sole basis of conviction. But, in the
instant case, leaving the statement of PW7, Rajan Ram, there is
most reliable evidence in terms of statement of PW4, Kundan
Singh, which is totally reliable.
38. Having considered the evidence on record, this
Court is of the view that the prosecution has been able to prove
beyond reasonable doubt that on 05.10.2016, at about 6:00 PM,
the appellant hit the deceased on his neck by a sickle, due to
which he died. Now the question is as to what offence is made out?
Is it an offence under Section 302 IPC or does it fall under Section
304Part II IPC?
39. In the case of Kesar Singh (supra), the Hon’ble
Supreme Court has laid down the distinction between the offence
under Sections 299 and 300 IPC.
40. In the case of Pappu vs. State of M.P., (2006) 7 SCC
391, the Hon’ble Supreme Court interpreted fourth exception of
Section 300 IPC, and observed as follows:-
“13. The fourth exception of Section 300 IPC covers acts done in a
sudden fight. The said exception deals with a case of prosecution12
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not covered by the first exception, after which its place would have
been more appropriate. The exception is founded upon the same
principle, for in both there is absence of premeditation. But, while
in the case of Exception 1 there is total deprivation of self-control,
in case of Exception 4, there is only that heat of passion which
clouds men’s sober reason and urges them to deeds which they
would not otherwise do. There is provocation in Exception 4 as in
Exception 1; but the injury done is not the direct consequence of
that provocation. In fact Exception 4 deals with cases in which
notwithstanding that a blow may have been struck, or some
provocation given in the origin of the dispute or in whatever way
the quarrel may have originated, yet the subsequent conduct of
both parties puts them in respect of guilt upon equal footing. A
“sudden fight” implies mutual provocation and blows on each side.
The homicide committed is then clearly not traceable to unilateral
provocation, nor in such cases could the whole blame be placed on
one side. For if it were so, the exception more appropriately
applicable would be Exception 1. There is no previous deliberation
or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of
them starts it, but if the other had not aggravated it by his own
conduct it would not have taken the serious turn it did. There is
then mutual provocation and aggravation, and it is difficult to
apportion the share of blame which attaches to each fighter. The
help of Exception 4 can be invoked if death is caused (a) without
premeditation; (b) in a sudden fight; (c) without the offender’s
having taken undue advantage or acted in a cruel or unusual
manner; and (d) the fight must have been with the person killed. To
bring a case within Exception 4 all the ingredients mentioned in it
must be found. It is to be noted that the “fight” occurring in
Exception 4 to Section 300 IPC is not defined in IPC. It takes two to
make a fight. Heat of passion requires that there must be no time
for the passions to cool down and in this case, the parties have
worked themselves into a fury on account of the verbal altercation
in the beginning. A fight is a combat between two and more
persons whether with or without weapons. It is not possible to
enunciate any general rule as to what shall be deemed to be a
sudden quarrel. It is a question of fact and whether a quarrel is
sudden or not must necessarily depend upon the proved facts of
each case. For the application of Exception 4, it is not sufficient to
show that there was a sudden quarrel and there was no
premeditation. It must further be shown that the offender has not
taken undue advantage or acted in cruel or unusual manner. The
expression “undue advantage” as used in the provision means
“unfair advantage”.”
41. In the case of Gurmukh Singh Vs. State of
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Haryana, (2009) 15 SCC 635, there was a dispute with regard to a
pathway and the appellant gave a lathi blow on the head of the
deceased, due to which he died. In Para 11 of the judgment, the
Hon’ble Supreme Court posed a question and in Para 12 of it,
noted the significant feature of the cases as follows:-
“11. The short question which falls for consideration of this Court
is whether, on consideration of the peculiar facts and
circumstances of the case, the conviction of the appellant under
Section 302 IPC should be upheld or the conviction be converted to
one under Section 304 Part II IPC? Appropriate sentencing is a very
vital function and obligation of the court.”
“12. There are significant features of the case which are required to
be taken into consideration in awarding the appropriate sentence to
the accused:
(1) Admittedly, the incident happened on the spur of the moment;
(2) It is clear from the evidence on record that the appellant was not
using that path everyday;
(3) The appellant gave a single lathi-blow on the head of the
deceased which proved fatal;
(4) The other accused did not indulge in overt act therefore, except
the appellant, the other co-accused, namely, Niranjan Singh,
Harbhajan Singh and Manjit Singh have been acquitted by the trial
court;
(5) The incident took place on 8-1-1997 and the deceased remained
hospitalised and ultimately died on 14-1-1997;
(6) The trial court observed that there was no previous enmity
between the parties.
Therefore, it is abundantly clear that there was no prearranged
plan or that the incident had taken place in furtherance of the
common intention of the accused persons. When all these facts and
circumstances are taken into consideration in proper perspective,
then it becomes difficult to maintain the conviction of the appellant
under Section 302 IPC.”
42. Having considered the law on the point, the Hon’ble
Supreme Court observed that the appellant in that case ought to
have been convicted under Section 304 Part II IPC instead of
Section 302 IPC.
43. In the instant case, the following factors are to be
taken into consideration for ascertaining as to which offence is
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made out:-
(i) The deceased was sitting on the bench in
the mill of PW4, Kundan Singh.
(ii) In the meanwhile, the appellant came and
he also sat on the bench with the deceased
in the mill.
(iii) The deceased and the appellant, while
sitting on the bench, were talking to each
other. It was normal.
(iv) When the grinding was complete, PW4,
Kundan Singh, closed the mill and both the
appellant and the deceased moved out from
the mill. Uptil then also, they both were
normal.
(v) When PW4, Kundan Singh, was closing the
mill from inside the room, he heard the
deceased crying, “save me; the appellant
has cut me.” Hearing the cry of the
deceased, the PW4, Kundan Singh, came
out of the mill and noticed the appellant
running from the place of incident with a
sickle in his hand. The deceased was
bleeding from his neck and he told it to
PW4, Kundan Singh, that he has been cut
by the appellant.
(vi) PW12, Fakir Ram, the father of the
deceased, admits that there was no enmity
between them.
44. The above sequel of events makes it abundantly
clear that the appellant did not have any intention to kill the
deceased. He had not come with the intention to attack the
deceased. He and the deceased both were talking to each other
while sitting on the bench, in the mill. When they walked out of the
mill, something happened suddenly. In the spur of moment, the
appellant attacked the deceased by a sickle. It is a single blow.
Therefore, this Court is of the view that the conviction and
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sentence of the appellant cannot be sustained under Section 302
IPC. But the appropriate Section under which the appellant ought
to have been convicted is Section 304 Part II IPC. The appellant
has been in custody for more than 8 years without remission.
45. Learned Senior Counsel appearing for the appellant
submits that the appellant is a poor men, who is in custody for
more than 8 years now. He cannot pay the fine, and if he is unable
to pay the fine, he has to undergo rigorous imprisonment for a
further period of one year. Therefore, the fine may be reduced and
in case of default, the sentence may also be reduced.
46. Having considered, this Court is of the view that
while setting aside the conviction of the appellant under Section
302 IPC, the appellant may be convicted under Section 304 Part II
IPC, Accordingly, the appeal deserves to be partly allowed.
47. The conviction and sentence of the appellant under
Section 302 IPC is set aside.
48. The appellant is convicted under Section 304 Part
II IPC. He is sentenced to the period of custody, which he has
already undergone with a fine of Rs. 10,000/-. In default of
payment of fine, the appellant shall undergo simple imprisonment
for a further period of one month.
49. The appellant is in jail. Let he be set free forthwith,
if not wanted in any other case.
50. Let a copy of this order be sent to the court
concerned for intimation and compliance.
(Ravindra Maithani, J.) (G. Narendar, C.J.)
14.08.2025
Ravi Bisht
16
2025:UHC:7246-DB
17