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PETITIONER: MOHINDER PAL JOLLY

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT14/12/1978

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. REDDY, O. CHINNAPPA (J)

CITATION:  1979 AIR  577            1979 SCR  (2) 805  1979 SCC  (3)  30

ACT:      Indian Penal  Code, 1860  (Act 45 of 1860) Ss. 99, 101, 103, 302,  303 and 304. Factory owner fired from revolver on workers agitating  for  wages  outside  factory-Death  of  a worker-Accused claiming right of private defence of property and  person-Right   when  available-Accused   if  should  be convicted and sentenced under Part-II of Section 304 and not Part-I.

HEADNOTE:      There was  a dispute  between the  appellant, a factory owner and  his employees  in regard  to  wages,  during  the period of their lay-off.      The  prosecution   alleged  that  on  the  day  of  the occurrence when the workers gathered outside the factory and raised  innocuous   slogans  demanding   their  wages,   the appellant came out and fired a shot from his revolver, which hit a worker resulting in his death.      The appellant  on the  other hand  alleged that a large number of  labourers  who  collected  outside  the  factory, shouted very  abusive slogans,  threatening that  they would not leave  him alive  and showered  brickbats at the factory premises  causing   damage  to   the  appellant’s  property. Apprehending imminent  danger to  his life and property, his driver fired  a shot from the revolver which resulted in the death of the deceased.      The trial  court, with  whose findings  the High  Court agreed, found  that the  workers might have hurled brickbats into the factory premises; but they did not break the barbed wire on  the boundary  wall nor  did they  try to  scale the boundary wall.  that they  did not carry any sticks, that no brickbats hurled  by the workers could enter the appellant’s office and therefore his version that some brickbats damaged the glass  on his office table was incorrect and that it was the appellant  and not  his driver  that fired  his revolver which resulted in the death of the deceased. The High Court, agreeing  with   the  trial  court,  held  that  though  the appellant had  the right  of private  defence of property it did not go to the extent of causing death and, therefore, he exceeded his  right of  private defence.  Holding  that  the offence fell  under Exception 2 to s. 300 IPC the High Court convicted him under s. 304, Part-I.

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    In appeal  to this  Court it was contended on behalf of the appellant  that in  the exercise of his right of private defence the  appellant was  entitled to and justified in law in using  force even to the extent of causing death although he never  intended to  kill the  deceased or  anyone. On the facts and  circumstances of the case, it did not come within clause 4thly  of s.  300; or  even if  it fell  within  that provision, on  the application of exception 2, he could only be convicted  under Part  II of s. 304 and not under Part I. Even if  his conviction  were maintained, imposition of fine would meet the ends of justice.      Dismissing the appeal in part, ^      HELD: The appellant could be convicted only under Part- II of s. 304 and not Part-I. [813 C]. 806      (1) The  High  Court  was  right  in  not  finding  the appellant  guilty  of  having  committed  culpable  homicide amounting to  murder within  clauses  Firstly,  Secondly  or Thirdly and  finding him guilty with the aid of clause 4thly where the  intention to  cause murder  is  absent  but  "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". The clause further says  that the  person "commits such act without any excuse for  incurring the  risk of  causing  death  or  such injury as  aforesaid." The appellant must have committed the act with  the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injury as was likely  to cause  death. Dehors  Exception 2,  he had no excuse for committing the said act. [813 D-E]      In the  present case  the workers’ demand for wages was not legal.  The workers  raised provocative  slogans and did throw  brickbats   damaging  the  appellant’s  property  and endangering it  to further  damage. But that by itself could not give  any right  of private  defence of  person  to  the appellant. There is no evidence to show that the workers had broken the  barbed wire  or that some of them tried to scale the boundary wall. It may well be that some of them tried to raise their  heads above  the boundary  wall. The  appellant came out  of his  office and fired the shot, which could not be merely  to scare  away the crowd of workers. He could and did fire  the shot  so that  it could pass over the boundary wall almost  grazing it.  The bullet  which must have passed just over  the boundary  wall could and did hit the deceased killing him instantaneously. [812C-813C]      2. (a)  In the  matter of  exercise  of  the  right  or private defence  of property  or person  the onus  is on the accused to  establish this  right not  on the  basis of  the standard of  proving it  beyond doubt  but on  the theory of preponderance of  probability. He  might or  might not  take this plea  explicitly or  might  or  might  not  adduce  any evidence in  support of it but he can succeed in his plea if he is able to bring out materials on the record on the basis of evidence  of the prosecution witnesses or on other pieces of evidence  to show  that the apparently criminal act which he committed  was justified  in exercise  of  his  right  of private defence  of person  or property  or  both.  But  the exercise of  this right  is subject  to the  limitation  and exceptions provided  in section  99 of  the Code. As to when the right  of private defence of the body extends to causing death is provided for in s. 100. [813 F-814 A]      (b) The  appellant had  not only  the right  of private defence of  his-property but  also his  body  to  a  limited extent  within   the  meaning  of  s.  101  subject  to  the

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restrictions mentioned  in s. 99. This did not extend to the inflicting of  so much  harm to the deceased and causing his death, nor  does the  right of  private defence  of property available to  an accused  extend to causing death, unless it is covered by any of the clause of s. 103. [814 B]      (c) When  mischief is  caused to  property it  must  be shown that  it was  caused under  such circumstances  as may reasonably cause  apprehension that  death or  grievous hurt would be  the consequence  if such  right of private defence was not  exercised. A mere claim of such apprehension is not enough. The  court on  objective tests  and on the facts and circumstances of  each case  must arrive  at the  conclusion that the  situation was  such as  was likely  to  reasonably cause such apprehension. [814 D-E] 807      (d) The  right of  private defence  of property  in the appellant’s case  extended to causing of any harm other than death. The  appellant  did  exceed  this  right  of  private defence and  the murder  which he  committed was  within the meaning of clause ’4thly’ of s. 300 squarely and fell within Exception 2 thereof. [814 F]      (e) The  appellant exceeded  the right  given to him by law and caused the death of the deceased against whom he was exercising  such   right  of  defence.  He  did  so  without premeditation and  without any  intention of doing more harm than was  necessary for  the purpose  of  such  defence.  He thought that  by indulging  in this imminently dangerous act he would  be able  to scare away the labourers and stop them from continuing  their unjustified agitation, the raising of the  slogans  and  the  throwing  of  brickbats.  But  then, although the  intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it  was   so  imminently  dangerous  that  it  must  in  all probability cause death of the worker or workers standing on the other side of the boundary wall. [814 G-H]      3. If  the accused  commits an act while exercising the right of  private defence  by which  death is  caused either with the intention of causing death or with the intention of causing such  bodily injury as is likely to cause death then he would be guilty under Part-I. On the other hand if before the application  of any  of the  Exception of  s. 300  it is found that  he was  guilty of  murder within  the meaning of clause "4thly" then no question of such intention arises and only the  knowledge is  to be  fastened on  him that  he did indulge in  an act  with the knowledge that it was likely to cause death but without any intention to cause it or without any intention  to cause  such bodily injury as was likely to cause death.  In the  instant case  the appellant  could  be convicted only  under Part-II  of s.  304  and  not  Part-I. [815A-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 118 of 1972.      Appeal by  Special Leave  from the  Judgment and  Order dated 24-4-1972  of the  Punjab and  Haryana High  Court  in Criminal Appeal No.303 of 1969.      A. N.  Mulla, Harbans  Singh and  Faqir Chand  for  the Appellant.      Hardev Singh for the Respondent.      The Judgment of Court was delivered by      UNTWALIA, J.-The  appellant in  this appeal  by special

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leave  was  convicted  by  the  Additional  Sessions  Judge, Jullundur under  section 304  Part-I, Indian  Penal Code and sentenced to  undergo rigorous  imprisonment for seven years and a  fine of Rs. 10,000/- in default to two years’ further rigorous imprisonment.  The fine, if recovered, was directed to be  paid to  the dependants  of  the  deceased  in  equal shares. The  appellant filed  a criminal  appeal in the High Court of  Punjab and  Haryana  against  his  conviction  and sentence. The State 808 also filed  an appeal  and the widow of the deceased filed a revision in  the High  Court for  convicting  the  appellant under section  302 of  the Penal Code instead of section 304 Part-I. The  High Court  dismissed both  the appeals as also the revision.  The appellant  only has preferred this appeal in this Court.      The appellant was running a factory at Jullundur and on account of  non-availability of  raw-materials  the  factory remained closed  for a  fortnight  from  the  14th  to  28th September, 1967  resulting in  lay-off  of  the  workmen.  A dispute arose  between the  management and  the  workmen  in regard to  the payment  of wages  for the  period aforesaid. Ultimately  a   settlement  was   arrived  at   through  the intervention   of   the   Labour-cum-Conciliation   Officer, Jullundur and  the terms  of the  settlement were reduced to writing which  was marked  Ext. D.A. in the case. Rightly or wrongly the  workers, according to the prosecution case, got the impression that they were to be paid their wages for the period of lay-off. They accordingly went to the appellant on 7th October,  1967 for demanding the wages. The appellant is said to  have told  them that  the same would be paid on the 11th October.  On this  date again  they went to the factory and sent P.W. Mota Singh to demand wages from the appellant. He asked  him to  go away. Mota Singh came out and passed on the information  to the  workers present outside the factory premises,  who,  amongst  others,  included  Sant  Ram,  the deceased, Darshan Singh, P.W. 4 and Gurcharan Singh, P.W. 5. According to  the prosecution  case the workers then started raising innocuous  slogans demanding  their  wages  and  did nothing else. It is said that thereupon the appellant opened the door  of his  office and  fired a shot from his revolver towards the  workers who  were raising slogans. The shot hit on  the  forehead  of  Sant  Ram  who  fell  down  and  died instantaneously at  the spot.  The occurrence  took place at 2.00 p.m.  on the  11th October,  1967. A  First Information Report was  lodged at the Thana at 2.15 p.m., on the written report of  Mota Singh,  P.W. 2,  Shadi Lal,  P.W.  13,  Sub- Inspector of Police reached the place of occurrence at about 2.30 p.m.  and started  investigation. After  submission  of Charge-Sheet and  commitment the  appellant  was  tried  for having  committed   the  offence   of  murder  of  Sant  Ram punishable under section 302 of the Penal Code.      The defence set up by the appellant was that the Labour Officer had given the decision contained in Ext. D.A. on the 28th September,  1967 that  no wages  would be  paid for the lay-off period  but that  the workmen  would be  treated  on leave and  would be  paid as  per leave  due to  each one of them. He along with his son and driver Bansi 809 Lal was in the office at about 1.50 p.m. on the 11th October when eight  or nine  labourers of his factory and fifteen or twenty labourers who are outsiders came to his factory. Some of them  entered his office while others stood outside. They demanded wages  not only  for the period of lay-off but also for the  period from  7th  October  onwards  when  they  had

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decided not  to join  the work  until their wages were paid. The factory  gates were  closed and a big crowd of labourers collected outside.  They became  violent. They  shouted very abusive and  obnoxious slogans  and were  saying  that  they would not  leave the  owner of  the factory  alive that day. They showered brick-bats at the factory premises. His office air-conditioner was broken so was the electric globe outside the office.  The brick-bats  hit the office wall and damaged it and  also damaged the table glass on the table inside the office. Numerous brick-bats fell both inside and outside the office. Apprehending  imminent danger  to his  life  and  in exercise of  the right  of private  defence of  property and person, Bansi  Lal, the  appellant’s driver  fired the  shot from the  revolver and  not he.  The labourers  had  started breaking the  barbed wire  fixed on the boundary wall of the factory on  the other side of which they were standing. Some of them including Sant Ram tried to scale the boundary wall. It was  in such  a situation  that the  bullet hit  Sant Ram causing his death.      Largely, almost  wholly, agreeing  with the conclusions arrived at by the Trial Court, the High Court has arrived at the following findings of fact:-           (1)  The version  of the  labourers that they were                entitled  to  their  wages  for  the  lay-off                period was  not countenanced  by  Ext.  D.A.,                rather, that  of the  appellant was borne out                by it. "The demand of the workers made on 7th                October, 1967  and  11th  October,  1967  for                payment of  full wages  was not in accordance                with this  agreement and  therefore  was  not                legal."           (2)  "That after the refusal by the accused to pay                wages to  the workers  for the lay-off period                they  raised  some  slogans  and  might  have                hurled  some   brick-bats  into  the  factory                premises of the accused and caused damages as                observed  by   Shadi  Lal   (P.W.  13)   Sub-                Inspector, who  arrived at  the  spot  within                about half an hour of the occurrence."           (3)  "The workers  did not  break the  barbed wire                affixed on  the boundary  wall of the factory                nor they tried to 810                scale the  boundary  wall  and  there  is  no                reliable evidence  on the  file to  show that                they were  armed with  any DANDAS  or sticks.                Their purpose  was to  hold  a  demonstration                against  the   accused  when  he  refused  to                consider their  demand of  wages for  the lay                off period  which was obviously not justified                in view  of the  agreement  arrived  on  28th                September, 1968,  copy of  which  is  Exhibit                D.A."           (4)  "Provocative slogans  might  have  also  been                raised by them at that time, when the accused                was sitting in the office."           (5)  "Admittedly the  workers were,  at that time,                standing outside the factory wall which was 5                1/2 feet  high and  on which  barbed wire  is                fixed. The  distance between  that outer wall                and the  office of  the accused  was about 13                feet. No  brick-bats hurled  by  the  workers                could, therefore,  enter the  office room  of                the accused.  The defence  version that  some                brick-bats fell  inside  the  office  of  the

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              accused and  broke the  glass of his table is                false and incorrect."           (6)  The mob  hurled bricks-bats  on the  building                and the  globe outside  his office was broken                and  some   damage  was   done  to  the  air-                conditioner and as such the mob was guilty of                mischief."           (7)  "The  accused   on  hearing  slogans  of  the                workers came  out of  his office and stood on                the THARI  in front  of the  office and fired                the  shot   towards  the  workers,  who  were                raising slogans  outside the factory and as a                result   of   that   shot   Sant   Ram   died                instantaneously."      On the  basis of the findings aforesaid the High Court, in agreement  with the  Trial Court,  came to the conclusion that the  appellant had  the right  of  private  defence  of property extending  to the  voluntary causing  of  any  harm other than  death to  the workers  but not to the causing of death and obviously he exceeded his right of private defence and thus this offence falls under Exception 2 of section 300 of the Indian Penal Code. The High Court found the appellant in the  first instance guilty of culpable homicide amounting to murder  within the  meaning of  clause ’4thly’ of section 300. And  since the  appellant’s case was found to have been covered by  Exception 2  he was convicted under section 304, Part-I. 811      Mr. A.  N. Mulla  appearing for the appellant submitted that he  was not  challenging the concurrent findings of the courts below  that it  was the  appellant who  had fired the shot from  his  revolver  and  not  his  driver.  But  then, according  to  his  submission,  he  was  forced  to  do  so apprehending imminent danger to his life or of grievous hurt to him  and the  shot was  fired  not  only  to  defend  his property. He  was, therefore,  in exercise  of  that  right, entitled to  and justified in law in using force even to the extent of  causing the  death of Sant Ram, although he never intended to  kill any one. It was further submitted that the workmen were the aggressors. They had thrown brick-bats even inside the  office damaging  the  office  table  glass;  had collected in  large numbers  outside the  boundary wall; had broken the barbed wire on it and some of them were trying to scale down  the wall.  In such a situation the appellant was not expected  to act  like a  coward and run from the place, but he had a right to defend his property and person. In any view of the matter, counsel submitted, that the case did not come under clause ’4thly’ of section 300 or even if it falls within that  provision, on the application of Exception 2 he could only be convicted under Part-II of section 304 and not Part-I. On  the facts and in the circumstances of this case, counsel submitted,  that the  sentence imposed  upon him  is highly excessive  and even  if his  conviction is maintained justice demands  only an  imposition of  fine on  him  under section 304 Part-II.      Mr. Hardev Singh appearing for the State endeavoured to show that  the labourers  were justified  in demanding their wages for  the layoff  period; they  were very few in number and even  if their  demand was not warranted on the terms of the settlement  embodied in  Ext. D.A.  they had  a right to peacefully demonstrate  and ventilate  their grievance. They did nothing which could give any right of private defence to the appellant  either of  his property  or person.  He could escape from  his office  for his  safety or would have taken recourse  to  the  protection  of  the  public  authorities.

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Counsel further  submitted that the appellant was not at all justified in  causing the  death of Sant Ram by his revolver and his  conviction recorded  under section  304  Part-I  is correct and the sentence is not at all excessive.      After having  appreciated all that was placed before us by learned  counsel for  the parties  and on  perusal of the relevant pieces  of evidence in the case we have come to the conclusion that  none of the findings recorded by the Courts below is  such or  so  erroneous  that  we  can  justifiably interfere with  it either  this way  or that  way. And this, apart from  the fact,  that since  the State had not come to this Court 812 in appeal  it was not open to it to argue that the appellant had no  right of  private defence  at all. The argument that the  appellant   had  time  to  escape  like  a  coward  for protecting his  person leaving his property to any amount of danger of  being damaged, to say the least, was an obviously wrong argument and has been stated merely to be rejected.      Ext. D.A.  clearly shows  that  the  workmen  were  not entitled to  claim down  right cash  wages for the period of lay-off. Their  absence was  to be  adjusted  against  their leave. To start with, therefore, the High Court was right in saying that their demand was not legal. Yet that, by itself, could not  give any  right  of  private  defence  either  of property or  of person  to the  appellant. We have carefully gone through  the evidence of P. Ws. 2, 4 and 5 and also the evidence of  Vidya Sagar, D.W. 2 on which great reliance was placed by Mr. Mulla. We see no ample Justification for us to say that  any brick-bats thrown by the labourers had entered the office  room of  the appellant breaking the glass of his office table. But then, brick-bats were thrown; they did hit and damage  the office  wall, the  air-conditioner  and  the globe of  the electric  light. It  may not  be  possible  to determine with  exactitude the  number of  labourers present outside the boundary wall at the time of the occurrence. But it does  appear to us that they were neither present in very large number of hundred or more nor the number was as meagre as about  ten as  deposed to by the P.Ws. The factory of the appellant  is   situated  in   an  industrial  area.  It  is reasonable to  think that  some other workers also must have joined their agitational move. Be that as it may, the number of the  workers present  outside the boundary wall is not of any great  significant although  it has  some  significance. They did  throw brick-bats damaging the appellant’s property and endangering  it to further damage. Hurling of brick-bats by the  labourers towards  the office  of the appellant must have caused  apprehension of  some hurt or injury to him but not necessarily  the causing  of the grievous hurt as on the facts and  in the  circumstances of  this case  it  was  not possible to draw an inference to that extent. The High Court would have  been well  advised to  try to  record a definite finding on  the question of hurling of brick-bats instead of saying that  the workers  "might have hurled some brick-bats into the  factory premises  of the  accused." Similarly  the High Court ought to have come to a definite conclusion as to whether the  slogans  raised  by  the  workers  were  merely innocuous as  they  claimed  to  be  or  they  were  raising provocative slogans  also which  were not only obnoxious but went to  the length  of saying  that the appellant should be killed and  the factory  should be burnt. We are inclined to think that the 813 slogans raised  by  the  workers  were  more  offensive  and provocative than claimed by them. But we are not prepared to

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accept the  contention of the appellant in disagreement with the findings of the courts below that they had broken barbed wire or  that some  of them tried to scale down the boundary wall. It  may well be that some of them tried to raise their heads to  mark the  reaction of the appellant on the hearing of their  slogans. The boundary wall was only 51/2 high. The appellant came out of his office room and stood on the THARI which was  about 1  1/2 high  from the  ground level  of the factory and fired the shot. It is not possible to accept his contention that  he did so merely to scare away the crowd of the workers. He could and did fire the shot so that it could pass over  the boundary wall almost grazing it. Sant Ram was standing at  a distance  of about 5’ or 6’ from the boundary wall. The  bullet which  must  have  passed  just  over  the boundary wall  could  and  did  hit  Sant  Ram.  In  such  a situation the  High Court was right in the first instance in not  finding   the  appellant  guilty  of  having  committed culpable homicide amounting to murder within clauses ’1stly, 2ndly or  3rdly’ and  finding him  guilty with  the  aid  of clause ’4thly’,  where the  intention  to  cause  murder  is absent but  "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". The  clause further  says that  the person  "commits such act  without any  excuse  for  incurring  the  risk  of causing death  or such  injury as  aforesaid." The appellant must have  committed the  act with the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injuries as was likely to cause death. Dehors Exception 2  which we shall presently refer he had no excuse for committing the said act.      The law  regarding the  right  of  private  defence  of property or  person is  well  settled  and  may  be  briefly recapitulated here.  The onus is on the accused to establish this right  not on  the basis  of the standard of proving it beyond  doubt   but  on   the  theory  of  preponderance  of probability. He might or might not take this plea explicitly or might  or might  not adduce any evidence in support of it but he  can succeed  in his  plea if he is able to bring out materials in  the records  of the  case on  the basis of the evidence of  the prosecution witnesses or on other pieces of evidence to  show that  the apparently criminal act which he committed was  justified in exercise of his right of private defence of  property or  person or both. But the exercise of this right  is subject  to the  limitations  and  exceptions provided in section 99 of the Penal Code-the last one being- "The right  of private  defence in  no case  extends to  the inflicting of more harm than it is necessary to inflict for 814 the purpose  of defence."  As to  when the  right of private defence of the body extends to causing death is provided for in section  100. The  appellant’s case is not covered by it. In the  view which we have expressed above we think that the appellant had  not only  the right of private defence of his properly but  also his  body to a limited extent with in the meaning of section 101 subject to the restrictions mentioned in section  99. This  did not extend to the inflicting of so much harm  to Sant  Ram and causing his death, nor the right of private  defence of  property available  to the appellant extended to  causing his  death as it was not covered by any of the  clauses of  section 103. Mr. Mulla tried to bring it under ’4thly’ which says:-           "Theft, mischief,  or house-trespass,  under  such      circumstances as may reasonably cause apprehension that      death or grievous hurt will be the consequence, if such

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    right of private defence is not exercised. Mischief was  caused to  his property  but it was not caused under   such   circumstances   as   may   reasonably   cause apprehension in  his mind  that death or grievous hurt would be the  consequence if such right of private defence was not exercised. A  mere claim of such apprehension is not enough. The  Court   on  objective   test  and   on  the  facts  and circumstances of  each case  must arrive  at the  conclusion that the  situation was  such as  was likely  to  reasonably cause such  apprehension. The  right of  private defence  of property also,  therefore, in  the appellant’s case extended to causing of any harm other than the death. Undoubtedly the appellant did  exceed this  right  of  private  defence  and apparently the  murder which he committed within the meaning of clause  ’4thly’  of  section  300  squarely  fell  within Exception 2  thereof. He  exceeded the power given to him by law and  caused the  death of  Sant Ram  against whom he was exercising  such   right  of  defence.  He  did  so  without premeditation and  without any  intention of doing more harm than was  necessary for  the purpose  of  such  defence.  He thought that  by indulging  in this imminently dangerous act he would  be able  to scare away the labourers and stop them from continuing  their unjustified agitation, the raising of the slogans  and the  throwing of  the brick-bats. But then, although the  intention was not to kill or cause such bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it  was   so  imminently  dangerous  that  it  must  in  all probability cause  death or such bodily injury as was likely to cause  death of  the worker  or workers  standing on  the other side of the boundary wall. 815      A question  now arises whether the appellant was guilty under Part-I  of section  304 or  Part-II.  If  the  accused commits an  act while exceeding the right of private defence by which  the death  is caused  either with the intention of causing death  or with  the intention of causing such bodily injury as  was likely to cause death then he would be guilty under Part-I. On the other hand if before the application of any of the Exceptions of section 300 it is found that he was guilty of  murder within the meaning of clause ’4thly’, then no question  of such intention arises and only the knowledge is to  be fastened on him that he did indulge in an act with the knowledge  that it was likely to cause death but without any intention  to cause it or without any intention to cause such bodily  injuries as  was likely  to cause  death. There does not seem to be any escape from the position, therefore, that the  appellant could be convicted only under Part-II of section 304 and not Part-I.      Even so  on the  facts and in the circumstances of this case we  do not feel persuaded to let off the appellant with an imposition  of  fine  only.  We,  however,  thought  that sentence of  three years’  rigorous imprisonment  would meet the ends  of justice  in this  case. We were informed at the Bar and  an affidavit sworn by the appellant’s wife was also filed before us to the effect that the appellant was in jail for about  nine months  as an  under trial  prisoner and for about four  months after  conviction. Thus  he  has  already undergone imprisonment  for a  period of  about a year and a month. The occurrence took place more than a decade ago. The appellant had  to pass this long ordeal all these years both mentally  and   financially.  Considering,   therefore,  the totality  of   the  circumstances   while  maintaining   the imposition of fine of Rs. 10,000/- and in default two years’ further imprisonment,  we reduce  his  substantive  term  of

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imprisonment to  the period  already undergone  and maintain the conviction  of the appellant not under Part-I of section 304 of the Penal Code but under Part-II.      In the  result the  appeal is  dismissed but subject to the modification  made above  in regard  to the  appellant’s conviction and sentence. N.V.K.                                     Appeal dismissed. 816