High Court · 2025

Session Trial No. 49 of 2002, arising out of Case Crime No. 188 of 2002, Police Station - Kotwali Utraula, District - Balrampur, convicting and sentencing the accused/appellant under Sections 304 Part I for a period of ten years of rigorous imprisonment and a fine of Rs. 1,000/-, with default stipulations.

3. The case of prosecution, which is apparent from record, is to the effect that :- (i) The accused-appellant is daughter-in-law of the deceased. (ii) The husband of the accused-appellant was at Banglore at the time of incident. (iii) On 07.04.2002 at about 07 p.m., the date and time of incident, the accused-appellant to ease herself was present in the agricultural field of her cousin father-in-law ( namely चचचयय सससर) namely Chiddu. (iv) The deceased/father-in-law of the accused-appellant tried to commit rape with the accused-appellant, who in turn, made a blow on the head/scalp of the deceased with 'Danda' resulting head injury and in scuffle/altercation ribs of the deceased were fractured. (v) Thereafter, the accused-appellant again tried to commit rape with the accused-appellant and therefore to save herself, the accused-appellant throttled the deceased. (vi) After the incident, the accused-appellant went to Police Station - Kotwali Utraula, District - Balrampur and narrated the entire incident. (vii) Based upon her statement, FIR (Ex.Ka.3), proved by Dan Bahadur (P.W.5), was registered as Case Crime No. 188 of 2002, under Section 304 IPC, was registered, and thereafter the accused-appellant was sent for medical examination at Community Health Center, Utraula (in short 'CHC') on 07.04.2002 itself and upon her due medical examination the concerned doctor found deep bone head injury (5 cm x 1 cm). (viii) Concerned Police Officer took possession of the weapon i.e. 'Danda' used in the crime brought by the accused-appellant herself at the police station. In this regard, recovery memo (Ex.Ka.5) was also prepared. (ix) The body of the deceased, after preparation of injury report (Ex.Ka.1), proved by Ajay Kumar (P.W.1), was sent for post- mortem which was conducted by Dr. P.K. Srivastava (P.W.3), who proved the post-mortem report (Ex.Ka.2). (x) During investigation the Investigating Officer (in short "I.O.") recorded the statement(s) of the witnesses also prepared recovery memo of broken bangles (Ex.Ka.6), site plan (Ex.Ka.7) and also collected the evidence viz. injury report, post-mortem report (Ex.Ka.2) (xi) The I.O., after completion of investigation, submitted the charge-sheet against the accused-appellant under Section 304 IPC. 4. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Session where it was registered as Session Trial No. 49 of 2002 and the charge was framed under Section 304 IPC against the accused-appellant to which she denied and claimed trial.

5. In order to substantiate its case, prosecution examined as many as 9 witnesses - brother of the deceased Ajay Kumar (P.W.1), Ram Autar alias Chiddhu (P.W.2) was declared hostile, Dr. P.K. Srivastava (P.W.3), Tarawati (P.W.4), Dan Bahadur (P.W.5), Jumman (P.W.6) was declared hostile, Sheshram son of the deceased (P.W.7) was declared hostile, I.O. Shri V.D. Singh (P.W.8) and Janakram/husband of the accused-appellant (C.W.1).

6. That after closing of the evidence, statements of accused/ appellants were recorded by the trial court explaining the entire evidence and other circumstances to which the accused- appellant replied as per her version based upon which FIR was lodged.

7. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as documentary, found the accused/appellant guilty and convicted her, as above.

8. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellant has preferred the present appeal.

9. Learned counsel for the appellant submits that the accused- appellant has not been convicted previously for any offence and she is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of conviction and sentence for the offense under Section 304 Part I IPC for the reason that in fact of the case the accused-appellant ought to have convicted for the offense under Section 304 Part II IPC.

10. The Trial Court has not given any reason in the impugned judgment and order for conviction and sentence for offense under Section 304 Part I IPC.

11. Learned counsel for the accused-appellant submits that to that extent, the impugned judgment and order suffers from serious illegality, therefore, it cannot be sustained.

12. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellant has been rightly convicted.

13. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is the first time offender and was not previously convicted in any other case.

14. Considered the aforesaid and perused the records.

15. Before proceedings, it would be apt to extract paragraph 66 of the judgment passed by Hon'ble Apex Court in the case of Anbazhagan Vs. State Represented by the Inspector of Police, reported in 2023 SCC OnLine SC 857. "66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:— (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

16. That it is noteworthy that the incident took place way back in the year 2002. The accused-appellant has suffered in the matter for the past about 23 years and there is no criminal antecedent against her during these years, as informed.

17. Considering the above stated facts, relevant provisions of law and settled proposition on the issue and also the period lapsed from the date of incident i.e. about 23 years as also it appears incident occurred without premeditation of mind on spur of moment and the accused-appellant caused injuries to the deceased including fatal injury as also that prosecution has failed to establish motive and preparation for committing crime and also that in the incident while saving from the deceased the accused-appellant also sustained injury and also that from the place of crime the broken bangles of the accused-appellant were recovered as also the punishment awarded for the offfense under Section 304 Part I IPC i.e. a period of ten years of rigorous imprisonment, I am of the view that it is case of offense under Section 304 Part II.

18. In view of above, the conviction and sentence of the appellant/Smt.Indrawati for the offence under Section 304 Part I is modified to Section 304 Part II IPC.

19. For the reasons aforesaid, the appeal is allowed in part. The judgment and order of conviction passed by the Sessions Court inSession Trial No. 49 of 2002 (Supra) on sentence of the accused/appellant is hereby modified. The accused/appellant- Smt. Indrawati is sentenced to imprisonment for the period already undergone with fine, as imposed by the trial Court, and in default to pay the fine, if not already paid, to undergo one month simple imprisonment, for the offence.

20. The accused/appellant is in jail. The authorities are directed to release her forthwith if she is not wanted in any other case.

21. Let a copy of this judgment and record be sent forthwith to the trial court and Superintendent of District Jail Balrampur. MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench Order Date :- 13.8.2025/Mohit Singh/-

Session Trial No. 49 of 2002, arising out of Case Crime No. 188 of 2002, Police Station - Kotwali Utraula, District - Balrampur, convicting and sentencing the accused/appellant under Sections 304 Part I for a period of ten years of rigorous imprisonment and a fine of Rs. 1,000/-, with default stipulations.

3. The case of prosecution, which is apparent from record, is to the effect that :- (i) The accused-appellant is daughter-in-law of the deceased. (ii) The husband of the accused-appellant was at Banglore at the time of incident. (iii) On 07.04.2002 at about 07 p.m., the date and time of incident, the accused-appellant to ease herself was present in the agricultural field of her cousin father-in-law ( namely चचचयय सससर) namely Chiddu. (iv) The deceased/father-in-law of the accused-appellant tried to commit rape with the accused-appellant, who in turn, made a blow on the head/scalp of the deceased with 'Danda' resulting head injury and in scuffle/altercation ribs of the deceased were fractured. (v) Thereafter, the accused-appellant again tried to commit rape with the accused-appellant and therefore to save herself, the accused-appellant throttled the deceased. (vi) After the incident, the accused-appellant went to Police Station - Kotwali Utraula, District - Balrampur and narrated the entire incident. (vii) Based upon her statement, FIR (Ex.Ka.3), proved by Dan Bahadur (P.W.5), was registered as Case Crime No. 188 of 2002, under Section 304 IPC, was registered, and thereafter the accused-appellant was sent for medical examination at Community Health Center, Utraula (in short 'CHC') on 07.04.2002 itself and upon her due medical examination the concerned doctor found deep bone head injury (5 cm x 1 cm). (viii) Concerned Police Officer took possession of the weapon i.e. 'Danda' used in the crime brought by the accused-appellant herself at the police station. In this regard, recovery memo (Ex.Ka.5) was also prepared. (ix) The body of the deceased, after preparation of injury report (Ex.Ka.1), proved by Ajay Kumar (P.W.1), was sent for post- mortem which was conducted by Dr. P.K. Srivastava (P.W.3), who proved the post-mortem report (Ex.Ka.2). (x) During investigation the Investigating Officer (in short "I.O.") recorded the statement(s) of the witnesses also prepared recovery memo of broken bangles (Ex.Ka.6), site plan (Ex.Ka.7) and also collected the evidence viz. injury report, post-mortem report (Ex.Ka.2) (xi) The I.O., after completion of investigation, submitted the charge-sheet against the accused-appellant under Section 304 IPC. 4. After submission of charge sheet, learned Magistrate took cognizance and thereafter the said case was committed to the Court of Session where it was registered as Session Trial No. 49 of 2002 and the charge was framed under Section 304 IPC against the accused-appellant to which she denied and claimed trial.

5. In order to substantiate its case, prosecution examined as many as 9 witnesses - brother of the deceased Ajay Kumar (P.W.1), Ram Autar alias Chiddhu (P.W.2) was declared hostile, Dr. P.K. Srivastava (P.W.3), Tarawati (P.W.4), Dan Bahadur (P.W.5), Jumman (P.W.6) was declared hostile, Sheshram son of the deceased (P.W.7) was declared hostile, I.O. Shri V.D. Singh (P.W.8) and Janakram/husband of the accused-appellant (C.W.1).

6. That after closing of the evidence, statements of accused/ appellants were recorded by the trial court explaining the entire evidence and other circumstances to which the accused- appellant replied as per her version based upon which FIR was lodged.

7. Thereafter, the learned trial court after hearing learned counsel for both the parties and appreciating the entire evidence, oral as well as documentary, found the accused/appellant guilty and convicted her, as above.

8. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction, the accused-appellant has preferred the present appeal.

9. Learned counsel for the appellant submits that the accused- appellant has not been convicted previously for any offence and she is the first time offender. The learned counsel at the outset submits that he is not challenging the impugned judgment and order of conviction and is confining his submission in the appeal only with respect to the order of conviction and sentence for the offense under Section 304 Part I IPC for the reason that in fact of the case the accused-appellant ought to have convicted for the offense under Section 304 Part II IPC.

10. The Trial Court has not given any reason in the impugned judgment and order for conviction and sentence for offense under Section 304 Part I IPC.

11. Learned counsel for the accused-appellant submits that to that extent, the impugned judgment and order suffers from serious illegality, therefore, it cannot be sustained.

12. Learned A.G.A., on the other hand, opposed the appeal and has submitted that there is no material irregularity or illegality committed by the court below and keeping in view the evidence on record, accused-appellant has been rightly convicted.

13. Learned A.G.A. appearing for the State does not dispute the fact that accused-appellant is the first time offender and was not previously convicted in any other case.

14. Considered the aforesaid and perused the records.

15. Before proceedings, it would be apt to extract paragraph 66 of the judgment passed by Hon'ble Apex Court in the case of Anbazhagan Vs. State Represented by the Inspector of Police, reported in 2023 SCC OnLine SC 857. "66. Few important principles of law discernible from the aforesaid discussion may be summed up thus:— (1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate:‘A’ is bound hand and foot. ‘B’ comes and placing his revolver against the head of ‘A’, shoots ‘A’ in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of ‘B’ in shooting ‘A’ was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, ‘B’ sneaks into the bed room of his enemy ‘A’ while the latter is asleep on his bed. Taking aim at the left chest of ‘A’, ‘B’ forcibly plunges a sword in the left chest of ‘A’ and runs away. ‘A’ dies shortly thereafter. The injury to ‘A’ was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that ‘B’ intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of ‘B’ within Clause (3) of Section 300 of the IPC and render him guilty of the offence of murder although only single injury was caused. (2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC. (3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is ‘guilty intention,’ whereas the second part would apply when there is no such intention, but there is ‘guilty knowledge’. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder. (5) Section 304 of the IPC will apply to the following classes of cases : (i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression ‘sufficient in the ordinary course of nature to cause death’ but is of a lower degree of likelihood which is generally spoken of as an injury ‘likely to cause death’ and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death. To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC. (6) The word ‘likely’ means probably and it is distinguished from more ‘possibly’. When chances of happening are even or greater than its not happening, we may say that the thing will ‘probably happen’. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death. (7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC. (8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack. (9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable homicide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the required guilty intention or not, is a question of fact which has to be determined on the facts of each case. (11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies. (12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC."

16. That it is noteworthy that the incident took place way back in the year 2002. The accused-appellant has suffered in the matter for the past about 23 years and there is no criminal antecedent against her during these years, as informed.

17. Considering the above stated facts, relevant provisions of law and settled proposition on the issue and also the period lapsed from the date of incident i.e. about 23 years as also it appears incident occurred without premeditation of mind on spur of moment and the accused-appellant caused injuries to the deceased including fatal injury as also that prosecution has failed to establish motive and preparation for committing crime and also that in the incident while saving from the deceased the accused-appellant also sustained injury and also that from the place of crime the broken bangles of the accused-appellant were recovered as also the punishment awarded for the offfense under Section 304 Part I IPC i.e. a period of ten years of rigorous imprisonment, I am of the view that it is case of offense under Section 304 Part II.

18. In view of above, the conviction and sentence of the appellant/Smt.Indrawati for the offence under Section 304 Part I is modified to Section 304 Part II IPC.

19. For the reasons aforesaid, the appeal is allowed in part. The judgment and order of conviction passed by the Sessions Court inSession Trial No. 49 of 2002 (Supra) on sentence of the accused/appellant is hereby modified. The accused/appellant- Smt. Indrawati is sentenced to imprisonment for the period already undergone with fine, as imposed by the trial Court, and in default to pay the fine, if not already paid, to undergo one month simple imprisonment, for the offence.

20. The accused/appellant is in jail. The authorities are directed to release her forthwith if she is not wanted in any other case.

21. Let a copy of this judgment and record be sent forthwith to the trial court and Superintendent of District Jail Balrampur. MOHIT SINGH High Court of Judicature at Allahabad, Lucknow Bench Order Date :- 13.8.2025/Mohit Singh/-