Himanchal And Another vs State Of U.P.
2015 Latest Caselaw 1843 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 42	
 

 
Case :- CRIMINAL APPEAL No. - 7049 of 2006
 

 
Appellant :- 	Himanchal & Another
 
Respondent :- 	State of U.P.
 

 
Counsel for Appellant :- 	Radhey Shyam Shukla 
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Hon'ble P.K. Srivastava, J.)

1.This appeal has been preferred against the judgment of conviction and punishment dated 07.11.2006 passed by Additional Sessions Judge/ F.T.C., Court No. 3, Shahjahanpur in S.T. No. 699 of 1999 (State v. Himanchal & Others) under Section 307, 302 IPC in case crime no. 431/1998, p.s. Sadar Bazar, Shahjahanpur. By this judgment each of the two accused-appellants have been convicted for charges under sections 302/34 IPC and sentenced to imprisonment for life and fine of Rs. 4000/- (in default of payment additional imprisonment for four years).

2.The prosecution case in brief is that on 29.08.1998 at about 4.00 p.m., Ganga Ram and Babbal caught hold of Rakesh Kumar Rathaur (husband of informant Smt. Somwati) and the accused Himanchal (brother of Rakesh Kumar) fired on the thigh of Rakesh due to which he was seriously injured. Then Rakesh Kumar was admitted in the hospital. During his treatment Rakesh Kumar died due to shock of fire arm injury and septicemia.

3.Victim's wife Somwati (PW-1) lodged the FIR on the basis of which case crime number 431/1998 was registered. After completion of investigation a charge-sheet was submitted against the said three accused named in the FIR, on the basis whereof Sessions Trial No. 699/1999 was held against the said three accused. During trial one accused Ganga Ram died. The remaining two accused appellants were charged for offences u/s 302/ 34 IPC. After conclusion of the trial these two accused (appellants Himanchal and Babbal) were convicted and punished as above for offences u/s 302 read with 34 IPC. The judgment of the court below is under challenge in present appeal.

4.Learned counsel appearing for the appellant fairly admitted the contents of facts relating to charge, namely victim Rakesh Kumar being injured due to the fire caused by his brother Himanchal, his help by the co-accused in the incident, and death as a result of anti-mortem injury of fire and septicemia due to the said injury. He argued that he is not challenging the findings of fact of the impugned judgment, but is questioning the nature of the offence and the sections on which the accused-appellants were charged and convicted and the quantum of sentences awarded. According to him, taking note of various factors including the age of the young appellants-accused being about 25 years at the time of the incident, their first guilt, the charged incident was committed without premeditation in a sudden quarrel in the heat of passion, the injury being on non-vital part of the body and the death was because of septicemia due to negligence of deceased in his treatment (as he left the hospital without formal discharge), the award of life imprisonment and fine of Rs. 4000/- in default, to further undergo RI for three years is excessive. He pointed out that these points were mentioned during the arguments and at the time of hearing on the point of quantum of sentence, but were not considered in the judgment of conviction and at the time of awarding punishment. Learned counsel for the appellants contended that in this case conviction should be for the offence under section 304 IPC, and for the aforesaid reasons punishment should not be the maximum possible, and said sentence of punishment should be mitigated.

5.Learned A.G.A. appearing for the respondent State submitted that the Court had not erred in conviction or award of punishment. He also contended that the Court has always the liberty to impose an appropriate sentence as that is permissible in law.

6.We have given our anxious consideration to the rival submissions and perused the material available on the records of the court below. The appeal is being disposed off with the consent of the learned counsel for both sides dispensing with the formality of availability of paper books.

7.After the perusal of original record and the evidence available we are of the opinion that this finding of fact is not erroneous that the two accused Ganga Ram and Babbal had caught hold of the deceased Rakesh Kumar and Himanchal had fired on his thigh due to which Rakesh Kumar was seriously injured. Then Rakesh Kumar was admitted in the hospital. Available evidence proves that during his treatment Rakesh Kumar had left the hospital at his own, without permission of the doctors. Later on he had died due to shock of the fire arm injury and septicemia.

8.In view of the limited submissions, it has to be seen as to whether the offence in question comes within the purview of section 304 IPC or not; and and if the answer is in the affirmative then we have to see as to whether the sentence of life imprisonment and a fine of Rs 4,000/- is reasonable or excessive?

9.Sections 299, 300, 302 and 304 IPC speak about the culpable homicide not amounting to murder, and murder. These provisions are 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.

Illustrations

(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death.

Explanation I -- A person who causes bodily injury to another who is laboring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.

Explanation 2 -- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3 -- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.

300. Murder --

Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--

Secondly -- If it is done 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, or--

Thirdly -- If it is done with the intention of causing 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--

Fourthly -- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Illustrations

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.

(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A, although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.

(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.

Exception 1 --When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos: --

First -- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly -- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly -- That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation -- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills. Y, Z's child. This is murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2 -- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3 -- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4 -- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

Explanation -- It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5 -- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration

A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

302. Punishment for murder --

Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.

304. Punishment for culpable homicide not amounting to murder --

Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death."

10.Culpable homicide is murder if the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury and injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. Culpable homicide is genus and murder is species. All murder is culpable homicide but not vice versa. There are three degrees of culpable homicide, First, gravest form, which is defined in Section 300 IPC as murder, second degree is punishable under the first part of Section 304 IPC, and third is punishable under Section 304 second part. The distinction between culpable homicide and murder lies between a bodily injury likely to cause death and bodily injury sufficient in the ordinary course of nature to cause death. The difference between clause (b) of Section 299 and clause (3) of Section 300 IPC is one of degree of probability of death resulting from the intended bodily injury. This is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.

11.In "Kesar Singh v. State of Haryana, (2008) 15 SCC 753" Hon'ble Apex had held :

"To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 "Thirdly":

First, it must establish, quite objectively, that a bodily injury is present;

Secondly, the nature of the injury must be proved; these are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, indisputably, the burden is on the prosecution throughout) the offence is murder under Section 300 "Thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury is actually found to be proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional."

12.In the matter in hand it is proved from the evidence on record that there was some dispute between the appellant Himanchal and his brother Rakesh Kumar (the Deceased). Due to this dispute at the time of the charged incident an altercation took place whereupon accused Ganga Ram (....deceased)and Babbal had caught hold of the deceased Rakesh Kumar and then accused Himanchal fired on the thigh of Rakesh Kumar from a close range. At the time of incident the deceased was immobilized by the other two accused and Himanchal had opportunity to fire at him at any place of his body; but he chose to fire on the thigh. Though the fire arm injury on the thigh region was a grievous one but it was not a fatal injury in the ordinary course, but was of such a nature that in case of excessive bleeding there was a possibility of death. If a person is fired at the thigh and is given proper treatment within a reasonable time then there is a possibility of his survival. Apparently knowing these facts fully well the appellant Himanchal had fired at him and after that he, alongwith other co-accused, left the spot though he had sufficient time to repeat injuries.

13.In the present case the appellant Himanchal had not tried to repeat firing at Rakesh Kumar or inflicted any other blow and left the spot after firing at the thigh. After this incident Rakesh Kumar was admitted to hospital and given proper treatment, so he survived for some time. But it is pertinent to notice that before completion of his treatment Rakesh Kumar had left the hospital without permission of the doctor and for this he alone is responsible. No one had persuaded or forced him to leave his treatment incomplete or to abscond from the hospital without permission of the doctor. The case of death of the deceased Rakesh Kumar according to the statement of doctor performing postmortem was shock due to ante morten injuries of firing and septicemia. These circumstances show that initially injured Rakesh Kumar had survived the injury of fire arm inflicted at his thigh by the appellant Himanchal, but when he acted negligently, probably in overconfidence of his recovery, and left the hospital without completion of the treatment; then his unhealed wound had become infected resulting in septicemia. Therefore the doctor had opined the cause of death of injured Rakesh Kumar was ante-mortem gun shot injury inflicted at his thigh as well as septicemia. These facts are proof of the facts causing the death of injured Rakesh Kumar and two facors are responsible, first is the gun shot injury at his non-vital part of body (thigh), and second was his own negligence by leaving the hospital without permission of the doctor and giving up his treatment incomplete voluntarily the result of which was septicemia. In these circumstances although the injury inflicted by the appellants was with an intention to inflict a serious wound without actually going all out to cause his death, but the injury resulted in death of the injured. This is a matter of culpable homicide committed without premeditation and during quarrel for which the offender had not taken undue advantage of the situation when he left the victim, knowing fully well that he may survive. This appears to be a culpable homicide not amounting to murder because the person whose death was caused, being above the age of 18-years suffered death as he also took the risk of leaving willfully due to his own negligence. This matter comes within exception 4 and exception-5 of Section 300 IPC. Therefore the appellants are found guilty of the act of culpable homicide not amounting to murder which is punishable under section 304 IPC.

14.It is settled law that the courts are obliged to respect the legislative mandate in the matter of awarding of sentences in all such cases. In "Hazara Singh v. Raj Kumar, (2013) 9 SCC 516" Hon'b'e Apex C0urt had held that :

"it is clear that the maximum punishment provided therein is imprisonment for life or a term which may extend to 10 years. Although Section 307 does not expressly state the minimum sentence to be imposed, it is the duty of the courts to consider all the relevant factors to impose an appropriate sentence. The legislature has bestowed upon the judiciary this enormous discretion in the sentencing policy, which must be exercised with utmost care and caution. The punishment awarded should be directly proportionate to the nature and the magnitude of the offence. The benchmark of proportionate sentencing can assist the Judges in arriving at a fair and impartial verdict."

"17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."

15.There is no justification for the trial court while convicting the accused-appellant for the offence under Section 304 IPC and sentence him to the maximum possible life imprisonment. Only because Section 304 IPC provides for life imprisonment as the maximum sentence, does not mean that the Court should mechanically proceed to impose the maximum sentence, more particularly when the incident had occurred suddenly, during the heat and passion of a quarrel.

16.In Hem Chand v. State of Haryana, (1994) 6 SCC 727 Hon'ble Apex Court had held that :

"As mentioned above, Section 304-B IPC only raises presumption and lays down that minimum sentence should be seven years but it may extend to imprisonment for life. Therefore awarding extreme punishment of imprisonment for life should be in rare cases and not in every case."

17. In Devidas Ramachandra Tuljapurkar v. State of Maharashtra, (2015) 6 SCC 1 Hon'ble Apex Court had held :

"While we see no reason to differ with the concurrent findings recorded by the trial court and the High Court, we do see some substance in the argument raised on behalf of the appellants that keeping in view the prosecution evidence, the attendant circumstances, the age of the accused and the fact that they have already been in jail for a considerable period, the Court may take lenient view as far as the quantum of sentence is concerned. The offences having been proved against the accused and keeping in view the attendant circumstances, we are of the considered view that ends of justice would be met, if the punishment awarded to the appellants is reduced."

18. In 'Ramashraya Chakravarti v. State of M.P., (1976) 1 SCC 281' Hon'ble Apex Court had observed :

"To adjust the duration of imprisonment to the gravity of a particular offence is not always an easy task. Sentencing involves an element of guessing but often settles down to practice obtaining in a particular court with inevitable differences arising in the context of the times and events in the light of social imperatives. It is always a matter of judicial discretion subject to any mandatory minimum prescribed by law."

"In judging the adequacy of a sentence the nature of the offence, the circumstances of its commission, the age and character of the offender, injury to individuals or to society, effect of the punishment on the offender, eye to correction and reformation of the offender, are some amongst many other factors which would be ordinarily taken into consideration by courts trial courts in this country already overburdened with work have hardly any time to set apart for sentencing reflection. This aspect is missed or deliberately ignored by the accused lest a possible plea for reduction of sentence may be considered as weakening his defence. In a good system of administration of criminal justice pre-sentence investigation may be of great sociological value."

19.One of the prime objectives of criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done. There is no straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles; the twin objective of the sentencing policy is deterrence and correction. It lies within the discretion of the trial court to choose a particular sentence within the available range from minimum to maximum. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances.

20.In considering the adequacy of the sentence which neither be too severe nor too lenient the court has, therefore, to keep in mind the motive and magnitude of the offence, the circumstances in which it was committed and the age and character (including his antecedents) and situation in life of the offender. In awarding the sentence the judge, when he is free, is still not wholly free. He is to draw his inspiration from consecrated principles. There is now no guidance to the Judge in regard to selecting the most appropriate sentence given the circumstances of the case. There is need to adopt such guidelines in order to minimize uncertainty in awarding sentences. The higher courts, recognizing the absence of such guidelines, have provided judicial guidance in the form of principles and factors that courts must take into account while exercising discretion in sentencing.

21.In Gurmukh Singh v. State of Haryana, (2009) 15 SCC 635 Hon'ble Apex Court had discussed points to be taken into account before passing appropriate sentence as under :

"23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

(a) Motive or previous enmity;

(b) Whether the incident had taken place on the spur of the moment;

(c) The intention/knowledge of the accused while inflicting the blow or injury;

(d) Whether the death ensued instantaneously or the victim died after several days;

(e) The gravity, dimension and nature of injury;

(f) The age and general health condition of the accused;

(g) Whether the injury was caused without premeditation in a sudden fight;

(h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

(i) The criminal background and adverse history of the accused;

(j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

(k) Number of other criminal cases pending against the accused;

(l) Incident occurred within the family members or close relations;

(m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

24.The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused."

22.In the present matter appellant Himanchal and victim Rakesh were brothers. Some money was given by their father to Rakesh. Knowing this fact, on 30-08-1998, the Himanchal had come to the place of Rakesh with his father in-law Ganga Ram (co-accused) and brother-in-law (co-accused/ appellant) and also claimed money from Rakesh. This led to a serious altercation and manhandling. When Rakesh tried to defend him then Ganga Ram and Babbal had caught hold of Rakesh and suddenly appellant Himanchal fired at him due to which he was seriously injured and later on died on 04-09-1998 in the circumstances mentioned above.

23. Now the matter is limited to the sentence for the offence u/s 304 IPC, and we have to consider about the appropriate sentence for the appellant in this case. For it aggravating circumstances relating to the crime while mitigating circumstances relating to the criminal has to be considered. From facts and circumstances of the case it is clear that the appellants and victim are close relatives and the appellants had initially had no intention or premeditation for murder/ homicide as they had gone to the victim's place with their other family members including three ladies of the family, and started talks for their share of money. During talks they provoked and manhandling started followed by the incident of firing. At the time of incident age of both Himanchal and Babbal was about 25 years (33 years in year 2006 at time of statement u/s 313 CrPC), and they were apparently young and not much matured persons. Appellants had no criminal history and are in jail for about 11 years. Apart from these mitigating circumstances, it is noteworthy that appellant Himanchal is the brother of victim Rakesh. There was no enmity or cause of action for appellants to approach the deceased when Rakesh unilaterally received money from father. If the father had given any money to one brother then it was not his fault, and the other brother could have approached his father if he felt neglect. Charged incident was due to jealousy prevalent in the family and unnecessary involvement of relatives. It is also noteworthy that though there was no meeting of minds between the accused for causing fatal injuries but they were in possession of a dangerous weapon like country-made pistol. The reason might have been that they had intention in their mind to use that weapon in any eventuality, and at the time of altercation and manhandling they had used it. Appellants had committed the charged act without any sufficient reason and due to provocation caused by their own act. Firing at a real elder bother by Himanchal due to some jealousy and being helped by Babbal are proof of their mean mentality.

24. When we apply the settled principles of law which has been enumerated in the aforementioned cases, the sentence of life imprisonment of the appellants under Section 304 IPC appears to be excessive and therefore inappropriate. In the present case after considering the circumstances presented before the Sessions Judge and before us during hearing of this appeal, it appears appropriate that, in the present case the sentence should not exceed more than 14 years' imprisonment and fine.

25. In view of the above facts and discussions, the order of conviction u/s 302 IPC imposed on the each appellant is hereby modified u/s to 304 IPC, and the sentence of imprisonment for life is modified to rigorous imprisonment of fourteen years' with a fine of Rs. 4000/-, in default to further undergo rigorous imprisonment for three months. With this modification of conviction, punishment and sentence, the appeal stands disposed off.

26. Let the copy of this judgment be sent to Sessions Judge, Shahjahanpur of ensuring compliance.

Dated: 18.08.2015

SKS