The main legal point established in the judgment is the application of the distinction between 'murder' and 'culpable homicide not amounting to murder' under Section 299 and Section 300 of IPC, and the consideration of the reformative theory of punishment in determining the quantum of sentence.

JUDGMENT :

1. This appeal challenges the judgment and order dated 21.6.2016 passed by Shri Mohammad Faiz Alam Khan, Sessions Judge, Shahjahanpur, in Sessions Trial No. 163 of 2015 convicting accused-appellant under Section 302 of Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and sentenced him to undergo rigorous life imprisonment with fine of Rs. 25,000/- and in case of default of payment of fine, further to undergo one year imprisonment.

2. Investigation was moved into motion, after recording statements of various persons, the investigating officer submitted the charge-sheet against accused under Sections 147/307/302 of I.P.C. 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 302 of I.P.C. read with Section 34 of IPC.

3. On being summoned, the accused pleaded not guilty and wanted to be tried, hence, the trial started and the prosecution examined 4 witnesses who are as follows:

4. In support of ocular version following documents were filed:

5. 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.

6. Heard Sri Deepak Srivatava for the appellant and Sri N.K. Srivastava for the State and perused the record.

7. It is submitted by learned counsel for accused-appellant that the accused is in jail since 1.12.2014.

8. The allegations against the appellant are writ large and, therefore, the dying declaration is fruitful piece of evidence under Section 32 of the Evidence Act is the submission of Counsel for the State. We are agreeable of the same that it is fruitful piece of evidence.

9. In alternative, it is submitted that at the most punishment can be under Section 304 II or Section 304 I of I.P.C. If the Court feels, as the accused have been in jail for more than 8 years without remission, they may be granted fixed term punishment of incarceration.

10. 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.

11. The learned Judge, while discussing all the issues, has relied on several authoritative pronouncement hence the submission of the Counsel that the dying declaration is doubtful cannot be accepted. The second issue is whether it is 302 or 304 Part-I or II have considered the fact that 2 other co-accused has been acquitted in the same set of circumstances what would be the fate of this appeal. The appellant is sister-in-law of the deceased and the fact that the deceased was alive for 6 days after injury and it was septicaemial death.

12. Considering the evidence of the witnesses and also considering the medical evidence including post mortem report, there is no doubt left in our mind about the guilt of the present appellant.

13. 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 I