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Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1091/2010

ATTAR SINGH  ..Appellant

Versus

STATE OF MAHARASHTRA          ..Respondent

J U D G M E N  T  

GYAN SUDHA MISRA, J.

This appeal has been preferred against the  

judgment  and order dated  26.6.2008 passed by  the  

High  Court  of  Judicature  at    Bombay,  Bench  at  

Aurangabad in  Criminal  Appeal  No.  7/2007 whereby  

the  High  Court   upheld  the   judgment  and  order  

passed by the Sessions Judge, Dhule in Sessions Case  

No.  90/2005  by  which   the  appellant   had  been  

convicted for  an offence  under Section 302,  Indian  

Penal Code (I.P.C. for  short)  and was  sentenced to  

undergo  life  imprisonment  along  with  a  fine  of  

Rs.1,000/-.   In  default  of  payment  of  fine,  he  was

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ordered  to  undergo  simple  imprisonment  for  three  

months.   

2. The  appellant  was  initially   charged  and  

tried for an offence under Section 302 and 498-A of  

the I.P.C. for killing  his wife by hitting her on her head  

with a woodenlog as he was  suspecting her loyalty  

and character.

3. The specific case of the prosecution which  

was registered  under  Section  302 and 498-A  of  the  

I.P.C.  is that the appellant-Attarsingh  Barakya Pawara  

was  residing  along  with  his  wife  and  9  children  at  

village  Majanipada  in    Shirpur Taluk.  On 22.6.2005,  

the complainant-Khandu Kalu Ahire   who is also the  

village  Kotwal  received  an  information  from  one  

Ramesh Pawara, resident of   Majanipada  and Appa  

Shahada Pawara, resident  of  Fattepur village  that  

the  appellant  Attarsing has committed   murder of his  

wife  by hitting her with a woodenlog on her head.  On  

receipt  of  this  information,  the  village  Kotwal  along  

with  the  Sarpanch   Bhatu  Ditya   and  one  Rattan  

Lalsing  went to the appellant’s house  and found the  

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dead body of Nagibai (deceased wife of the appellant)  

lying on the floor of the house which indicated that the  

deceased had sustained head injury  and had bleeded  

profusely.    The  woodenlog   was found near  her  

dead body and the appellant was also found sitting in  

the  house.   The  village  Kotwal  enquired  about  the  

incident and questioned the appellant as to how his  

wife had died.  The appellant replied that  his wife was  

of a loose character and, therefore,  he had  killed her  

by  hitting  woodenlog  on  her  head.  He narrated  the  

incident  to  other  persons  accompanying  the  village  

Kotwal.    

4. The village Kotwal  thereafter came to the  

police station at Shirpur and lodged the report of the  

incident  (Exh.15)  on the  basis  of  which the offence  

was registered vide crime No. 161/2005 under Section  

302 of  the  I.P.C.    The police thereafter completed  

the usual legal formality  by reaching on the spot and  

as  the  body  was  found  there,  inquest  was  also  

conducted and spot panchnama was also   prepared  

whereby the clothes of the accused containing blood  

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stains were seized.   Woodenlog (Article No.3)   which  

was  found  lying on the spot was also seized  at the  

time of preparation of spot panchnama.  The body of  

the  deceased  was  then  sent  to  the   Government  

Hospital, Shirpur where post-mortem  was conducted.  

5.   The accused-appellant was subsequently  

arrested and taken  to the police station.  Investigation  

thereafter followed  in course of  which it transpired  

that  it  was   the  appellant   who had killed  his  wife  

Nagibai as he was suspecting her character.  Charges  

were  then  framed    against  the  appellant   under  

Section 498-A and  302 of the I.P.C.   to which  the  

appellant pleaded not guilty and claimed to be tried.  

6. In course of trial, the prosecution examined  

12  witnesses  on  the  question  as  to  whether  the  

appellant  had subjected his wife to cruelty by giving  

her  beating and abuses from time to time  suspecting  

her character.  The trial court  further examined the  

question  as to whether the accused had committed  

the  murder of his wife Nagibai in his  house at village  

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Majanipada  and thirdly as to  what other offence he  

has committed.

7. The defence story set up on behalf of the  

appellant is that  his wife had fallen down on the floor  

of the house due to which she sustained severe head  

injury which resulted  in her death.  

8.  The  trial  court  on  a  scrutiny   of  the  

evidence  and other materials on record rejected the  

defence story on the basis of the post-mortem report  

as   Dr.  Gohil   who  had  conducted   post-mortem  

categorically expressed that the head injury which the  

deceased  Nagibai  has  sustained  were  not  possible  

due to fall on the ground.

9. Insofar as the charge under Section 498-A  

of  Indian Penal Code was concerned, the trial court  

held that  none of the prosecution witnesses deposed  

that  the  accused-appellant  was  subjecting  his  wife  

Nagibai  to cruelty by giving her beating and abuses  

from time to time as alleged by the prosecution.  The  

learned Sessions Judge recorded that the evidence on  

record indicates that  it was only a single incident in  

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which   accused-appellant   had  assaulted  his  wife  

Nagibai  suspecting her  fidelity  and character  as  the  

evidence is missing  that  the accused-appellant  was  

subjecting    his  wife   to  cruelty  by  abusing  and  

assaulting  her  from  time  to  time.   The  learned  

Sessions  Judge  thus  was  pleased  to  hold  that  the  

prosecution  had  failed  to  prove  the  charge  under  

Section  498-A  of  the  I.P.C.   against  the  accused-

appellant and hence acquitted him of this charge.

10. Insofar as the second charge is concerned  

as to whether the accused-appellant is the author of  

the head injury  of  the deceased, the testimony of the  

daughter  of accused-appellant Mangibai  was held to  

be  significant for   even though Mangibai had turned  

hostile, her testimony revealed that  on the day of the  

incident,  her  father  was  running  behind  her  mother  

with a woodenlog for beating her.  On witnessing this  

incident,  she  started  weeping  and  came  out.  

Thereafter,  her  father  closed the  door  and only  her  

father  and  mother  were  inside  the  house.  

Immediately thereafter, her mother Nagibai was found  

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lying injured in a pool of blood inside the house and  

the accused also was there.  It was, therefore,  held  

that this circumstance indicated that it is the accused-

appellant who had assaulted his wife and caused her  

death.   It  was further  held,  that   though the panch  

witness Mangibai  is a  hostile witness, such  portion of  

the  hostile  witness  which  is  worth   believing   and  

which  is  supported  by  other  circumstances  can  be  

used and relied upon by the prosecution in  view of  

well-settled legal position.    The Sessions Court thus  

on a scrutiny and analysis of the evidence accepted  

the  prosecution version  based on the evidence  on  

record that the  accused-appellant had committed the  

murder of his wife by hitting her with a woodenlog in  

his  house and recorded a finding in the affirmative to  

the  effect  that  it  is  the  accused-appellant  who  

committed the murder of his wife-Nagibai in his house  

at village Majanipada. Thus, the appellant succeeded  

in securing  an  order of acquittal in his favour in so far  

as  the  charge    under  Section  498-A  of  the  Indian  

Penal Code is concerned, but suffered conviction and  

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sentence of  imprisonment for life for offence under  

Section 302  of the I.P.C. for the  charge of murder of  

his wife.  

11.  The appellant  feeling aggrieved   with the  

conviction  and sentence preferred  an  appeal  before  

the High Court of Bombay Bench at Aurangabad, but  

the High Court confirmed the view taken by the trial  

court   on  all  aspects  including   the  charge  under  

Section 302 of the  I.P.C.   

12. Assailing the  judgment and order  passed  

by the Sessions Court  as also the High Court which  

concurrently upheld  the conviction  of the appellant  

under Section 302 I.P.C.,  the counsel for the appellant  

first  of  all   attempted  to  demolish  the  case  of  the  

prosecution  in  its  entirety  by  submitting  that  the  

conviction and sentence imposed on the appellant was  

not  fit  to  be  sustained   on  the  testimony  of  the  

daughter  Mangibai   as  she  had  not  supported  the  

prosecution  version totally due to which she    had  

been  declared  hostile.   Hence,  it  was  first  of  all  

contended that  the testimony of the hostile witness  

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could  not  have  been  relied  upon  for  recording  

conviction of the appellant.  

13.   We   have  meticulously  considered  the  

arguments  advanced  on  this  vital  aspect   of   the  

matter    on  which  the  conviction   and  sentence  

imposed on the appellant is  based.  This compels us  

to consider as to whether the conviction  and sentence  

recorded on the basis of the testimony of the witness  

who has been declared hostile could be relied upon for  

recording conviction of the accused-appellant.  But it  

was difficult to overlook the relevance and value of the  

evidence  of  even  a hostile witness while considering  

as to what extent their evidence could be allowed to  

be relied upon and used by the prosecution.  It   could  

not  be  ignored   that  when   a  witness  is  declared  

hostile  and when his testimony  is  not   shaken  on  

material points in the cross-examination, there  is no  

ground  to reject  his testimony in toto as it is well-

settled  by a catena of decisions   that the Court   is  

not precluded from taking into account the statement  

of a hostile witness altogether and it is not  necessary  

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to discard  the same  in toto and can be relied  upon  

partly.  If some portion of the statement of  the hostile  

witness inspires confidence, it can be relied upon.  He  

cannot be thrown out as wholly unreliable.   This was  

the view expressed by this court in the case of  Syed  

Akbar vs. State of Karnataka   reported in AIR 1979  

SC 1848 whereby the learned Judges of the Supreme  

Court  reversed the  judgment  of  the  Karnataka  High  

Court which had discarded the evidence of a hostile  

witness in its entirety.  Similarly, other High Courts in  

the matter of Gulshan Kumar vs.  State (1993) Crl.L.J.  

1525 as also Kunwar vs. State of U.P. (1993) Crl.L.J.  

3421 as also  Haneefa vs.  State (1993) Crl.L.J. 2125  

have  held   that  it  is  not  necessary  to  discard  the  

evidence  of  the  hostile  witness  in  toto  and  can  be  

relied upon partly.    So also, in the matter of State of  

U.P.  vs.  Chet Ram reported in AIR 1989 SC 1543 =  

(1989) Crl.L.J. 1785; it was held  that   if some portion  

of  the  statement  of  the  hostile  witness  inspires  

confidence  it  can  be  relied  upon  and   the  witness  

cannot  be  termed  as   wholly   unreliable.   It   was  

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further categorically  held  in the  case of Shatrughan  

vs.  State  of  M.P.  (1993)  Crl.L.J.  3120  that  hostile  

witness is not necessarily a false witness.   Granting of  

a permission by the Court to cross-examine his own  

witness does not amount to adjudication by the Court  

as  to  the  veracity   of  a  witness.   It  only  means  a  

declaration that the witness is adverse or unfriendly to  

the  party  calling  him  and  not  that  the  witness  is  

untruthful.   This was the view  expressed by this Court  

in the matter of  Sat Paul vs.  Delhi Administration  

AIR 1976 SC 294.   Thus,  merely  because a  witness  

becomes hostile it would not result in throwing out the  

prosecution case, but the Court must see the relative  

effect  of his  testimony.  If the evidence of a hostile  

witness is  corroborated by other evidence, there  is no  

legal bar to  convict the accused.  Thus testimony  of a  

hostile  witness  is   acceptable  to  the  extent   it  is  

corroborated  by  that  of  a  reliable  witness.   It  is,  

therefore, open to the Court  to consider the evidence  

and there is no objection to a part of that evidence  

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being made use of in support of the prosecution or in  

support of the accused.   

14. While examining  the instant matter on the  

anvil of the aforesaid  legal position laid down by this  

Court  in  several  pronouncements,  we have  noticed  

that the support rendered by  the daughter  Mangibai  

approving  the incident should be accepted as reliable  

part of evidence in spite of she being a hostile witness.  

The witness Mangibai’s evidence  pushes the accused  

with his bag to the  wall and the accused is obliged to  

explain because her evidence shows that the accused  

was the only  person in the company of the deceased  

soon before the death.  The defence of the accused  

that  Nagibai’s injury was a result of fall is ruled out by  

medical   evidence  and  the  details  available  of  the  

location  in  the  panchnama  of  offence.   The  courts  

below thus have  rightly  drawn some support from the  

reports of the chemical  analysis  since  all the  articles  

of the victims  and clothes of the accused are found  

having blood stains of human blood group A.  This was  

in view of the fact that the results of the analysis for  

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determination of the blood group of the victim  and  

accused  were conclusive  when blood sent to phial  

was  analysed.  Thus, the evidence  of the daughter of  

the deceased  coupled with  other  material   as  also  

evidence  of  other  witnesses  i.e.  Ramesh,  Khandu,  

Bhatu and Makhan,  provided a complete chain and  

the prosecution successfully proved that the incident  

occurred  in  the  manner  and  the  place  which  was  

alleged.  In fact, the accused in answer to questions  

under Section 313 Cr.P.C.  has admitted his presence  

at the place of occurrence where his  wife Nagibai was  

lying injured and dead on the floor.  However, we do  

not  wish  to  be  understood  that  the  failure  of  the  

defence   could  be  treated  as  success  of  the  

prosecution since the conviction cannot be based only  

on the replies given by the accused, but these  replies  

may  be  considered  as   support   to  the  special  

knowledge of   the accused and this  lends sufficient  

weight  to  the  evidence  of  the  daughter  of  the  

deceased and other  attending  circumstances.    The  

trial Judge,  in our view,  has rightly  placed reliance  

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upon the evidence of Mangibai,  the daughter of the  

victim and the accused when she candidly supported  

the prosecution story when she stated as follows:-

“When  my  mother  had  sustained  head  injury, my father was there only i.e. near  my mother.  He was near the oven.  He  was talking loudly.

It  is  true  that  my father  hit  her  with  a  wooden log and therefore she ran to the  kitchen.   It  is  true  that  my  father  immediately  ran  after  her.   I  started  weeping.   It  is  true  that  thereafter  my  father  closed  the  door  from  inside.”…………………

15. Thus,  we  are  of  the  view   that  the  

evidence  of  Mangibai  who  was  declared  hostile  

supported  the  prosecution  case  in  her  cross-

examination  and,  therefore,   the  courts  below  do  

not  appear    to  have  fallen  into  any   error     in  

accepting     part of the evidence of Mangibai  and the  

retracted confession of  the witness Mangibai cannot  

be  accepted  to  the  extent  that   her  evidence  in  

support of the prosecution version was fit to be ruled  

out.  The retracted statement of Mangibai  stands fully  

supported by the evidence of other witnesses.  Thus,  

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the material on record along with the  evidence of the  

prosecution witnesses  leads  to  only  one inference  

that  the  accused-appellant   was  the  author   of  the  

injury  suffered by the victim and we have rightly been  

convinced  that  the  accused  and  the  accused  alone  

inflicted  fatal  injuries  upon  the   person  of  victim  

Nagibai.  We are, therefore,  clearly of the view  that  

in so far as  the incident  of killing  of the deceased  

Nagibai  is  concerned,  the  courts  below have rightly  

held that she was killed by her husband-appellant in  

the  manner  which  has  been  alleged  by  the  

prosecution.

16. However, learned counsel for the appellant  

next submitted that the offence alleged to have been  

committed  by  the  accused-appellant  ought  to  be  

brought down within the ambit of Section 304 Part II of  

the I.P.C.  as there was  only  a single  blow inflicted by  

the  accused-appellant  which  is  clear     from  the  

narration of  incident by the daughter of the accused  

and deceased-Nagibai  which shows that the accused  

was alone  with the  victim within the house and the  

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accused   did  not  kill  his  wife  with  a  pre-meditated  

mind  but  the incident took place  in a fit of anger due  

to the fact that  he was  suspecting  his wife.  It was,  

therefore, submitted that the accused  in fact had no  

intention to kill  his wife as the  death had occurred  

on account of  a single blow which was not the  result  

of  a   pre-plan or  pre-meditation.   In  support  of  the  

submission, he relied upon  the judgment and   order  

of this Court in the case of  State of Punjab     vs.  

Bakhshish Singh & Ors. (2008) 17 SCC 411 which  

also had relied  on the judgment  in the case of Anil  

Sharma & Ors.  vs.  State of Jharkhand, (2004) 5  

SCC  679,  Harbans  Kaur vs.  State  of  Haryana,  

(2005) 9 SCC 195,  Amitsingh Bhikamsingh Thakur  

vs. State of Maharashtra, (2007) 2 SCC 310 and this  

Court had been pleased to hold  that :  

“In  all  cases,  it  cannot  be  stated  that  when only a single blow is given, Section  302, IPC is made out, yet it would depend  upon the  factual scenario of each case,  more  particularly  the  nature  of  the  offence, the background facts, the part of  the body where injuries were inflicted and  the  circumstances in which the assault is  

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made”  that  the  offence  under  Section  302 IPC is not made out.”   

In view of the aforesaid observation, learned counsel  

submitted  that offence under Section 302 I.P.C. in the  

instant  matter  also  cannot  be   held  to   have  been  

made out  as the deceased  had sustained a single  

blow  alleged to have been inflicted  by the appellant.  

Learned  counsel  for  the  appellant   taking   further  

assistance from the observation of the Supreme Court  

in  the  matter  of  State of  Punjab  vs.  Bakhshish  

Singh (supra)     submitted  further  that  the   past  

history  about the relations between the appellant and  

the deceased  goes to prove that they did not have  

any strained relations.   In  fact,  they had absolutely  

normal  relations  and  had  nine  children  out  of   the  

wedlock  and it was only on the spur  of  the moment  

when  the appellant  abused suspecting   the character  

of  deceased  Nagibai   and  beat  her  with  a  stick  

unintentionally that the incident happened.  In support  

of his argument, he relied on the case of  Pannayar  

vs. State of Tamil Nadu  by Inspector of Police  

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(2009) 9 SCC 152 wherein this Hon’ble Court held  that  

absence of motive  in case of  circumstantial evidence  

is more favourable to defence.

17. The  arguments  advanced   by  learned  

counsel for the appellant-accused  when tested in the  

light   of  the  evidence  led  by  the  prosecution  while  

considering   whether  the  charge under  Section  302  

could be scaled down to Section 304 Part-II,  we  have  

already  examined  the  circumstances in which the  

deceased  had  been  killed  and  hence  it  could  be  

noticed  that  the   deceased  Nagibai   and  accused-

appellant  although  had  been  leading  a  so-called  

normal family life along with their nine children, the  

fact  remains  that  the  appellant-husband   had  been  

suspecting  his wife’s character  and nurturing  deep  

rooted grudge  over a period of time.  However, the  

evidence does further  indicate that on the date  and  

time of incident,  the appellant  had not  indulged    in  

pre-planning  the incident  in  any manner   so  as  to  

eliminate   his  wife  by  killing  her.   The  evidence of  

other  witnesses  also   indicated  that  the  incident  of  

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beating   had  not  happened   in  the  past  and  the  

daughter  of  the   accused   and  deceased-Mangibai  

also  deposed  that  there  were  heated  exchange  of  

words  between the couple  on the date of incident  

and the appellant-accused  heaped  abuses on his wife  

and then picked up a   woodenlog in a fit of anger by  

which  he hit the  deceased as a result of  which she  

sustained head injury and bleeded   profusely which  

lead to her  death.    

18.  Thus the appellant although do not appear  

to  have  killed  his  wife  by  planning  out  the  whole  

incident  in  a  methodical  manner,  yet  the  evidence  

disclosed that he was nurturing a grudge against  the  

wife over a long period of time  and on the date of the  

incident  when  the  husband  started  to  abuse  his  

deceased  wife  alleging  her   of  loose  moral  and  

character,  the  accused-husband   gave  vent   to  his  

deep    seated  grudge  by  hitting  her   with   such  

intensity  that  he  did  not  bother  about  the  

consequence  of  his  action.  But   it  cannot  be  

overlooked or ignored that  the intensity with which  

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he hit his wife after abusing  her is  indicative  of  the  

fact  that he was not oblivious of  the consequence  

which would have resulted from his  violent  act of  

beating his wife with a log of wood.    Thus, it will have  

to  be  inferred   that  he  had  sufficient   knowledge  

about the consequence of his heinous  act at least to  

the  extent   that   it  was  sufficient  in  the  ordinary  

course  of nature  to cause death of his wife.  He was  

thus   fully aware of the consequence  that  this would  

result   in  a  serious consequence and in  fact   it  did  

result  in the said manner since the wife  died as a  

result of the injury inflicted on her.  In fact, when the  

village Kotwal  reached the incident, the deceased did  

not  even expressed any remorse  for  what he had  

done to his wife nor he  appeared to  be repentant   of  

the incident.  This clearly  reflects  his state of mind  

that he committed the crime with full knowledge to kill  

his wife Nagibai on account of his deep seated  grudge  

which  he was carrying  since long.   Therefore,  the  

submission of the counsel   for the appellant that the  

charge under Section 302 I.P.C. should be converted  

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into one under  Section 304 Part-II I.P.C.  is fit to be  

rejected and  accordingly  we do so.

19.        The matter, however, do not set at rest at  

this  stage  as  the  evidence  on  record  and  the  

surrounding  circumstances  compels  us  to  consider  

further,  whether  the  offence   would  be  made  out  

under Section 302 I.P.C. or the same would fall under  

Section 304 Part-I  of   the I.P.C.  since the appellant-

accused and his wife-Nagibai had been married for a  

long time and were having nine children as also the  

manner  of  occurrence  and  the  circumstance  under  

which  the  incident  happened does  indicate  that  the  

incident  of  hot  exchange  of  words  between  the  

accused-appellant  and  his  deceased-wife  got  

precipitated     and  as   the  appellant  was  already  

aggrieved  of his wife  suspecting her character, he  hit  

his wife severely with whatever was available without  

caring for the consequence.  Thus, the intention to kill  

his wife and the knowledge  that she would be killed  

due to the hard hit blow  by the log of wood  surely  

cannot  be ruled out.   We take assistance from the  

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observations of this Court quoted  hereinabove that in  

all  cases it  cannot be  said that when only a single  

blow is given, Section 302 I.P.C.  is made out.  Yet it  

would depend upon  the factual scenario of each case  

more particularly nature of the  offence, background  

facts and the part of the body where injury  is inflicted  

and the circumstances in which the assault is made.  

20. Taking  assistance  from  these  apt   and  

relevant considerations when we examined the case of  

the appellant, we have noticed  that the appellant was  

living with his deceased wife day in and day out, but  

none  of  the   witness   has  deposed  that  she  was  

abused  and beaten earlier.   Thus, there is  lack  of  

evidence   that   on  the  fateful  day   the  appellant-

husband   had the pre-meditated intention to kill the  

deceased  with a log of wood due to  which he inflicted  

the  fatal  blow  on  the  deceased.  The  anger  and  

frustration  no  doubt  was  acute  in  the  mind  of  the  

appellant  on  account  of   his  suspicion  which  

aggravated   due  to  hot  exchange   of  words   and  

abuses resulting into  loss  of  mental   balance  as  a  

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consequence   of   which  he  hit  his  wife  with  such  

intensity that she died on the spot itself.  In view of  

this  the appellant will have to be attributed with the  

knowledge that his act was sufficient in the ordinary  

course of nature to kill the victim-wife.  

21.  Thus, in our view, the accused-appellant  

although  might not be attributed with the intention  

to  kill  his  wife,  sufficient   knowledge   that  his  act  

would result into  killing her  was  definitely there in  

the appellant’s mind and he in fact gave vent to his  

feeling by  finally killing her  when he hit her with a  

woodenlog to take revenge for her alleged  infidelity  

without realising   that suspicion of her  fidelity was  

not proved  and even if it did, that gave no right  to  

him to kill his wife in a  brutal manner by hitting her  

hard  enough with a log of wood with  such intensity  

which was sufficient  in the ordinary course of nature  

to kill the victim.  

22. There are no dearth of incidents referred in  

the case laws where the husband  has gone to the  

extent  of  shooting  his  wife  and  many  a  times  a  

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paramour shoots the husband or the husband shoots  

the  paramour  on  account  of   suspicion  founded  or  

unfounded.   But  if   the  evidence discloses  that  the  

accused killed the victim in a pre-meditated manner  

as for instance    by using a firearm, the same might  

be  a clear case under Section 302 of the I.P.C. But  

the facts and circumstances   of the incident  in which  

the appellant has been convicted,  indicate that the  

accused-appellant was not armed with any weapon or  

a  firearm.   As  already  noticed  the  evidence  do  not  

disclose in any manner that the  appellant  had come  

with a pre-meditated mind to kill  his wife,  but it was  

only in course of  hot exchange   of words  and abuses  

which mindlessly  drove him to take  the extreme step  

of beating  his wife with a log of wood with such force  

and   intensity   that   she    sustained  head  injury,  

profusely bled  and finally   died on the spot.

23. We are, therefore, of the considered view  

that  although   the  conviction  and  sentence  of  the  

appellant might not be sustainable under Section 302  

I.P.C.,  it  cannot also be scaled down to Section 304  

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Part-II I.P.C.   But we are surely of the view  that the  

appellant is fit to be convicted and sentenced under  

Section 304 Part-I of the I.P.C. in view of the evidence  

on  record,  the  surrounding   circumstance  and  the  

factual scenario in which  the incident occurred.  We,  

therefore, set aside the conviction and sentence of the  

appellant  recorded  under  Section  302  I.P.C.   but  

convert  the  same  under  Section  304  Part-I   I.P.C.  

Thus, we deem  it fit and appropriate to substitute  the  

sentence of life imprisonment with a sentence of 10  

years  imprisonment.   The  appeal  thus,  is   partly  

allowed.  We order accordingly.

…………………………….J (Swatanter Kumar)

…………………………….J (Gyan Sudha Misra)   

New Delhi, December 14, 2012

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