C. Suresh vs The State

S. Tamilvanan, J.—The Sole Accused Suresh has come forward with this Appeal challenging the conviction and sentence imposed by the Additional District and Sessions Judge, Coimbatore, by the Judgment dated 19.9.2011 in S.C. No 128/2010 convicting him for the offence punishable under Section 304 (Part I), I.P.C. and sentenced him to life imprisonment and to pay a fine of Rs. 10,000/- and in default to undergo 6 months Rigorous Imprisonment and also convicted for the offence under Section 324, I.P.C., whereby sentenced him to undergo 1 year and to pay a fine of Rs. 5,000/- and in default to undergo 3 months'' Simple Imprisonment and the sentences were ordered to run concurrently.

The prosecution case in a nutshell is as follows:

(a) The deceased-Sampath and the Accused Suresh are brothers. PWs 1 & 2-Chinnasamy & Palaniammal are the parents of the deceased-Sampath and the Accused-Suresh and PWs.3 & 4-Vanitha & Vijayakumar. Witnesses PWs 1 & 2 and the deceased-Sampath were the residents of Gokulam Colony, P.N. Pudur. The Accused-Suresh, without doing any job, used to demand money from his father Chinnasamy-PW1 very often, for which the deceased-Sampath stood as an obstacle and he used to support his father-PW1 by preventing him in giving money to the Accused. Therefore, there were strained feelings between the Accused and his brother, the deceased.

(b) On the fateful day of the occurrence, 24.11.2009, at 3.30 p.m., when PW2-Palaniammal was serving food to her husband Chinnasamy-PW1 and to the deceased, the Accused-Suresh, who was in the house, went to the backside of the house and brought a kerosene bottle and poured kerosene on the deceased-Sampath and set fire on him. The said occurrence was witnessed by PWs.1 to 4. In the said incident, PW1 also sustained burn injuries. The deceased and his father-PW1 were immediately taken in an Ambulance to Coimbatore Medical College Hospital and despite treatment, the deceased died on 26.11.2009 at about 8.45 a.m.

(c) It is seen that PW1-Chinnasamy, in his evidence, has deposed that on 24.11.2009, the deceased-Sampath/his son came to the residence at 3.30 pm to have his lunch. While PW1 and his son Sampath were taking lunch, the same was served by PW2, mother of the deceased and wife of PW1. At that time, the Accused-Suresh came from behind and poured kerosene on Sampath. The kerosene also spilled on PW1 and the Appellant/Accused set fire on the deceased-Sampath, due to which, PW1 also sustained burn injuries. PW1 further deposed that while PW2-Palaniammal was serving food. PW3-Vijayakumar/elder son of PWs.1 & 2 was also present at the time of occurrence. On hearing the hue and cry of the Prosecution Witnesses, the neighbours came to the scene of occurrence.

(d) PW2-Palaniammal wife of PW1, PW3-Vanitha sister of the deceased Sampath and the Accused-Suresh and PW1 and PW4/elder son of PWs.1 & 2 have also corroborated the version of PW1 in respect of the occurrence.

(e) PW9-Dr Bhuvana, attached to the Coimbatore Medical College Hospital, had examined the deceased-Sampath on 24.11.2009 at about 4.10 p.m. As per her evidence. PW2-mother of the deceased-Sampath had stated to the Doctor that the deceased sustained burn injuries due to stove burst and on examination, she found that the deceased sustained 60-70% burn injuries. She referred the deceased to Dr. Shanthi-PW7 for further treatment. PW9-Dr Bhuvana, also examined PW 1-Chinnasamy and found that PW1 had sustained 25-30% burn injuries on his head and hands and also admitted him in MS-5 S-2 Ward for further treatment The Accident Register pertaining to the deceased was marked as Ex P8 and the Accident Register in respect of Chinnasamy-PW1 was marked as Ex P9.

(f) PW7-Dr. Shanthi attached to the Coimbatore Medical College Hospital, examined the deceased, who was admitted as an in-patient, in MS-5 S-2 Ward. She opined that the deceased sustained 70% burn injuries. PW7 also stated the factum of the death of the deceased, despite treatment, on 26.11.2009 at 8.45 a.m. The Death Intimation given by PW7-Dr. Shanthi was marked as Ex P5.

(g) PW11-GK Ram, who was working as the Sub-Inspector of Police, Law & Order at the relevant point of tune, received telephonic information from the Coimbatore Medical College Hospital Out Post Police Station on 24.11.2009 at about 8.30 p.m. She went to the Hospital and enquired the deceased-Sampath, who had been admitted as an in-patient in MS-5 S-2 and recorded his statement. Since the deceased had sustained burn injuries on his body, she recorded the left leg thumb impression Ex.P10 is the statement recorded from the deceased. Thereafter, PW11 came to the Police Station and registered the case in Cr. No 1401/2009 for the offence under Section 307, I.P.C. and Ex.P11 is the FIR. The said FIR [Ex.P11] and the statement of the deceased [Ex P10] were sent to the learned Judicial Magistrate No. 7, Coimbatore and a copy of the same to his higher Police Officials for Investigation.

(h) PW12, the Inspector of Police received the FIR relating to this case and took up investigation on the same day, i.e., 24.11.2009. He went to the scene of occurrence, prepared Ex P1-Observation Mahazar and Ex.P12-Rough sketch in the presence of the Witnesses. He also recovered M.Os 1 to 3-Bedsheet, Matress and a partly burnt hand-kerchief under ExP2-Seizure Mahazar. Thereafter, PW12 arrested the Accused on 25.11.2009 at about 1.00 a.m. near Thadagam Road, Coimbatore. He was identified by the Witnesses and in then presence, the Accused came forward to give a Confession Statement voluntarily, the admissible portion of which is marked as Ex P3 Pursuant to the confession, the Accused produced MO4-Plastic Can and the same was seized under Ex.P4-Seizure Mahazar in the presence of Witnesses. On 26.11.2009, PW12 received intimation from the Hospital repeating the death of the deceased Hence, he went to the Hospital and held inquest on the dead body of the deceased in the presence of Panchayatdars from 12.00 noon to 2.00 p.m. and Ex P13 was the Inquest Report. The he sent the body of the deceased-Sampath for Post-Mortem. He prepared the Alteration Report under Ex P14, altering the offence from Section 307, I.P.C. to one under Section 302, I.P.C. Altered FIR was also forwarded to the Court concerned.

(i) Dr. Balaji Pandiyan, PW8, attached to Coimbatore Medical College Hospital, conducted Post-Mortem on the dead body of the deceased on 26.11.2009 at 2.30 p.m. He found the following injuries:

"The following ante-mortem injuries are seen in the body:

-Denno epdiermal burns involving upper half of face, nose, entire neck, entire chest [both front and back], front half of abdomen, both upper limbs, lower half of both thighs, both knees, front of both legs, back of right leg and dorsum of both feet.

-Degloving noted over both palms.

-Total singeing noted on eyebrows, eyelashes and both side axillary hair.

-The base of the burnt area was reddish in colour.

Other Findings:

-Pleural and peritoneal cavities: empty

-Lungs: cut Section congested

-Larynx and Trachea contains soot particles.

-Hyoid bone: intact.

-Heart all chambers contain few cc of fluid blood. Coronaries patent

-Stomach contains about 110 ml of black colored fluid, no specific smell, mucosa congested. Small intestine contains about 20ml of black colored fluid, no specific smell, mucosa congested.

-Liver, spleen, Kidneys and brain: cut section congested.

-Urinary bladder: empty."

Ex P6 was the Post-Mortem Certificate wherein the Doctor has opined that the deceased would appear to have died on account of burn injuries.

(i) PW12, the Inspector of Police in continuation of his Investigation examined the other Witnesses and recorded their statements. He also sent the Material Objects for Chemical Examination through the Court. After the receipt of the Chemical examination Report and Serologist Report, PW12 completed the Investigation on 28.1.2010 and filed the charge-sheet against the Accused under Section 302, I.P.C.

The prosecution in order to bring home, the charges against the Accused, examined PWs.1 to 12, filed Exs.P1 to 14 besides marking MOs. 1 to 4.

When the Accused was questioned under Section 313, Cr.P.C, in respect of the incriminating circumstances appearing against him based on the evidence adduced by the prosecution, the Accused denied each and every circumstances as contrary to the facts and stated that he has been falsely implicated in the case. He has not chosen to examine any Witness or mark any document on his side. Further, the Accused took the defence stating that the deceased-Sampath sustained burn injuries due to the stove burst and at that time, he was in the backyard of the house attending nature''s call.

Mr. S. Arunachalam, learned Counsel for the Appellant, without prejudice to his contentions, submitted that the Accused is in prison for the last five years, i.e., from the date of his arrest, viz., from 26.11.2009 and according to him, even if the act of committing the cause of the death of the deceased is accepted as per the Prosecution case, the same would not attract the penal provisions of 304 (Part I), I.P.C. and hence, prayed for setting aside the conviction and sentence of the Appellant.

Learned Counsel for the Appellant further contended that the prosecution has not come forward with the clear and cogent evidence. It is contended that there are material contradictions between the evidence of the eyewitnesses, PWs.1 to 4 The learned Counsel for the Appellant would further submit that there is no clear evidence to show that it was the Accused/Appellant, who had set fire on the deceased. He would submit that PW2 in her evidence has deposed that she saw the smoke coming out from the backyard of the house and the Accused was coming out of bathroom, while PW3, in her evidence has stated that the Accused woke up from sleep while the deceased and PW1 were having their lunch and had poured kerosene on the deceased and set fire on him. Further, it is the case of the prosecution that PW12-Inspector of Police attached to the Respondent-Police Station, arrested the Accused on the very next day of the occurrence, i.e., on 25.11.2009 at about 1.00 a.m. whereas the evidence of PW3 is that after the occurrence, the Accused went upstairs and got hidden himself in a room till the arrival of the Police. It was argued on behalf of the Appellant/Accused that the contradictions in the prosecution Witnesses go deep into the root of the prosecution case and vitiates the same. The learned Counsel for the Appellant/Accused further submitted that the motive established by the prosecution is also too flimsy. It is also contended that the occurrence was due to previous frequent quarrel between the Accused and the deceased and it was the deceased who provoked the Accused to commit such an act and hence, the act of the Appellant comes within the purview of Exception I of Section 300, I.P.C.

Per contra, Mr V.M.R. Rajendiran, learned Additional Public Prosecutor contended that the prosecution has established the guilt of the Accused by adducing clear and consistent evidence through the evidence of the eyewitnesses PWs.1 to 4, who are the parents, brother and sister of the Accused and the deceased. It is submitted that the evidence of PWs 1 to 4 is also corroborated by the medical evidence through the Doctors-PWs 7 & 9, as there are corresponding burn injuries found on the deceased. The learned Additional Public Prosecutor would further submit that there are no material contradictions between the evidence of PWs.1 to 4 and their evidence is quite natural and they being the parents, elder brother and daughter of the Accused, need not falsely implicate their own son/brother. It is also pointed out by the learned Additional Public Prosecutor that frequent quarrel had taken place between the Accused and his brother, the deceased on account of the Accused demanding money from his father-PW1 very often. Learned Additional Public Prosecutor argued that the Accused had clear intention, viz., mens rea, of killing the deceased in his mind and hence, the Accused is not entitled to the benefit of any Exception under Section 300, I.P.C.

We have given our careful and anxious consideration to the contentions put forward by either side and also thoroughly scrutinised the evidence available on record and perused the impugned Judgment of conviction, rendered by the Court below.

The prosecution heavily placed reliance on the evidence of the eyewitnesses PWs.1 to 4, who are none else than the father, mother, elder brother and sister of both the Accused and the deceased. It is seen from the evidence of PWs.1 to 4 that on 24.11.2009 at about 3.30 p.m. when the deceased-Sampath was having lunch with his father that was being served by his mother-PW2, the Accused Suresh came behind the deceased, poured kerosene on him and set fire on him. The said evidence is also corroborated by the statement of the deceased-Sampath given to the Sub-Inspector of Police-PW11 under Ex P12. Though there are certain minor discrepancies in the evidence of the prosecution Witnesses, PWs.1 to 4, the same has not affected the case of the prosecution. The burn injuries sustained by the deceased is also corroborated by the Medical evidence of PWs. 7 & 9-Dr. Bhuvana and Dr. Santhi and Ex.P8 (Accident Register of the deceased Sampath). It is also seen that PW1 is an injured eyewitness as he has also sustained burn injuries which is also evident from Ex.P9 (Accident Register of PW1) issued by PW9. Therefore, we have no hesitation to hold that the deceased died only due to homicidal violence and that too, at the hands of the Accused, who is the Appellant herein.

On the aforesaid facts and circumstances, we are left with the crucial question in respect of the nature of the offence said to have been committed by the Accused, in order to impose appropriate punishment for committing the offence.

In order to find out the nature of offence committed by the Accused, we have to scrutinise the evidence available on record with great care and caution. It is the admitted version of the prosecution through the evidence of the deceased that there were strained feelings between the Accused and the deceased as there were frequent quarrel between them on account of the Accused demanding money from PW1-Chinnasamy, father of the Accused and the deceased. However, as evidenced from the deposition of PW5-Saravanan, neighbour and also a relative of the deceased family, it is clear that the Accused-Suresh used to demand money from PW1 and the deceased-Sampath. As per the evidence of PW5 and the prosecution case, there was frequent quarrel between the Accused and the deceased and at tunes, the Accused/Appellant used to state that he would get peace if only he commits murder of the deceased-Sampath. However, PWs.1 to 4 have not come forward to depose the same before the Court. Hence, it is clear that the alleged motive is not clearly established by the prosecution.

Though the deceased-Sampath has given a Statement before PW11 that it was the Appellant, who poured kerosene and set fire on him, the credibility of the said version/statement has to be tested by this Court with great care and caution. As per the initial version of PW2/mother of the deceased and the Accused before the Doctor-PW9 on 24.11.2009 about 4.10 p.m. and as per the Accident Register [Ex.P8], the deceased had sustained burn injuries out of Stove burst. The version of the Accused during his questioning under Section 313, Cr.P.C., is that the occurrence had taken place due to stove burst and at that time, he was attending his nature''s call in the backyard of the house. At this juncture, it is note worthy that the deceased-Sampath was conscious at the time of his mother giving narration about the incident to the Doctor, PW9.

It is not in dispute that the statement of the deceased-Sampath was recorded by the Sub-Inspector of Police-PW11 on the same day about 8.30 p.m. in while the deceased was conscious enough to narrate the occurrence. In the said statement, the deceased had implicated the Accused for the act of pouring kerosene and setting fire on him. It was argued by the learned Counsel for the Appellant Accused that the deceased could not have been conscious while he was examined by the Doctor. Had the deceased really been conscious enough, he could have told the Doctor-PW9 about the Appellant pouring kerosene and setting fire on him. However, he had kept quiet when his mother-PW2 told the Doctor that the deceased had sustained burn injuries clue to Stove burst. On the contrary, for the first time, before PW 11 -Sub-Inspector of Police, he had stated so. He has also stated to PW11-Sub-Inspector of Police that what was told by his mother before the Doctor-PW9 was false and she had stated so, out of fear. It is also evident from the answer elicited from the Appellant under Section 313, Cr.P.C., that when the deceased caught fire, he came from the backyard, and stood behind the deceased-Sampath and at that time, his elder brother Vijayakumar-PW3 uttered the Appellant''s name twice. The Accused/Appellant had further stated that it was PW3, who was responsible for a false Complaint due to property dispute.

A perusal of the entire statement of the Accused including the admissible as well as the inadmissible portion of evidence recorded under Section 27 of the Evidence Act, it would be clear that the Accused had committed the act only due to an unreasonable sudden provocation. It is stated by the Accused in his confession statement, the admissible portion of which is marked as Ex P3, that he had previous enmity with the deceased-Sampath as Sampath had abstained the Appellant from demanding money from his father-PW1. Therefore, it is crystal clear that the Accused attacked the deceased only due to grave and unreasonable sudden provocation. The fact remains that the evidence of PWs.1 to 4, coupled with the entire statement of the Accused recorded under Section 27 of the Evidence Act, clearly shows that it was only the deceased, who caused provocation to the Accused by not allowing his father-PW1 to give any money to his brother/the Appellant herein, whenever he demanded money, which was sufficiently grave in his mind, as to deprive him of the power of self-control culminating into the act of pouring kerosene and setting fire on the deceased. It is neither a natural death, nor suicide committed by the deceased. It is crystal clear that it is only a culpable homicide. While deciding the Section, gravity of the offence has to be taken. If it is pre-planned murder, that could certainly come under Section 300, I.P.C. to constitute an offence of murder. In such a case, Court has to impose punishment under Section 302, I.P.C. If it is a sudden provocation, it would be construed as culpable homicide, that may come under Section 304 (Part I) or 304 (Part II), I.P.C., while imposing sentence.

In a landmark decision in K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, the Hon''ble Supreme Court of India has laid down the following principles regarding the Exception 1 to Section 300, I.P.C.:

"1. The test of grave sudden provocation is whether a reasonable man, belonging to the same class of society as the Accused, placed in situation in which the Accused was placed would be provoked as to lose his self-control.

In India, words and gestures may also, under certain circumstances, cause gave and sudden provocation to an Accused so as to bring his act with the first Exception of Section 300, I.P.C.

The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion has cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation."

In yet another decision of the Hon''ble Apex Court in Alister Anthony Pareira v. State of Maharashtra, 2012 (1) MWN (Cr.) 321 (SC) : 2012 (2) SCC 648, it is held as follows:

"......For punishment under Section 304 Part I, the prosecution must prove: the death of the person in question; that such death was caused by the act of the Accused and that the Accused intended by such act to cause death or cause such bodily injury as was likely to cause death. As regards punishment for Section 304 Part II, the prosecution has to prove the death of the person in question, that such death was caused by the act of the Accused and that he knew that such act of his was likely to cause death...

A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II, I.P.C.

The facts and circumstances of the case which have been proved by the prosecution in bringing home guilt of the Accused under Section 304 Part II, I.P.C. undoubtedly show despicable aggravated offence warranting punishment proportionate to the crime."

In the instant case, though the Appellant/Accused has acted in a grave and sudden provocation, this Court is of the considered view that the Appellant/Accused had the knowledge that his act was dangerous enough and the death was likely to be caused to the deceased and hence, his act is fastened with culpable homicide not amounting to murder as defined under Section 299, I.P.C. If the evidence of PWs.1 to 3 & 4 and coupled with the version of the Accused in his statement recorded under Section 27 of the Evidence Act is considered in the light of the above said well settled principles of law laid clown by the Honourable Apex Court as well as this Court, the inevitable conclusion of this Court is that the Accused is entitled to the benefit of Exception (1) to Section 300, I.P.C., and as such, he is liable to be convicted under Section 304 (Part II), I.P.C. It has also been established by the prosecution that the Appellant/Accused by his reckless, rash and negligent act, had caused the death of the deceased; but he had the knowledge, as a reasonable man, that his act would definitely cause the death of the deceased.

At this juncture, it is relevant to refer to a decision of the Hon''ble Apex Court in Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, 2006 (11) SCC 444, where the Hon''ble Apex Court has enumerated some of the circumstances relevant to finding out whether there was any intention to cause death on the part of the Accused. The Apex Court has observed thus:

"...Therefore, the Court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters-plucking of a fruit, shaving of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no premeditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the Accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the Courts to ensure that the cases of murder punishable under Section 302, are not converted into offences punishable under Section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under Section 302."

It is well settled that where in the course of sudden quarrel death is caused by single stab wound on chest, though a vital part, the offence should be taken to file under Section 304 Part II and not under Section 302, I.P.C., as held by the Andhra Pradesh High Court in B. Sabba Rao v. State of A.P., 1983 Crl.LJ 1948.

In the decision in Sundarapandian, In re, 1988 LW (Crl) 64 S.N.D.B., Division Bench of this Court has held that when there was a sudden trivial, quarrel and chance meeting of the deceased by the Accused and inflicting of one injury, held not intentionally causing death and therefore, the offence fails under Section 304 Part II, I.P.C.

In a similar case in Ramaiyan, In re, 1988 LW (Crl) 362, Division Bench of this Court, altered the conviction from Sections 302 to 304 Part II, I.P.C., when the Accused, aged about 78 years giving blow to his son, resulted in death.

In the cases referred to above, it was held that there was no premeditation or motive for the alleged occurrence, which had caused death, though the severe attack was made on the vital part, either by weapon or hand and in such circumstances, the Court could normally presume that the Accused had knowledge that it may likely to cause death, hence, fall under Section 304 Part II, I.P.C. for imposing sentence.

As per the definition given under Section 299, I.P.C., whoever causes death by doing an act with an intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. When it is culpable homicide, as defined under Section 299, I.P.C., the corresponding penal provision should be either Section 304 Part I, or 304 Part II, I.P.C., which depends upon the gravity of the offence, based on the culpable mind of the Accused.

In the instant case, the evidence available on record would show that the Accused and the deceased were brothers, there had been frequent quarrel between them, since the Accused was an unemployed person, used to demand money from his father However, as per the evidence available, there could be no enmity for the Accused for causing murder of his brother, the deceased herein. Though the Accused could have considered that the deceased had been an obstacle against his demanding money from his father, there is no strong motive for causing murder. The occurrence had taken place during day time, while the deceased and his father-PW1 were taking lunch that was provided by PW2, mother of the Accused and the deceased. As the act of the Accused was sudden and unexpected, that could not have been prevented by the other family members, PWs 1 to 4. Though PW2, mother had informed the Doctor that the occurrence had taken place due to blast of a stove, the place of occurrence and the statement given by the deceased and the evidence adduced by other Witnesses, PW3 to PW5 would clearly show that it was a homicidal death and not an accident. It was neither suicide nor an accidental death. It has been established clearly by the prosecution that the Accused for the trivial reason, that he was always raising objection for his demanding money from his father, had suddenly taken kerosene from the kitchen and poured it on the body of the deceased and set fire PWs. 1 to 5 attempted to save the life of the deceased, hence, they immediately took him along with PW1, who also sustained burn injuries, to the Hospital.

In the light of various decisions rendered by the Hon''ble Supreme Court and this Court referred to above and as per the evidence available on record, it is clear that the offence committed by the Accused would fall under Section 304 Part II, I.P.C. and not under Part I of the said Section.

Having gone through the evidence available on record and after hearing the arguments of both sides, we are of the considered view that the prosecution has established by bringing home the guilt of the Accused only under Section 304 (Part II) I.P.C. and not under Section 304 (Part I), I.P.C. as held by the Trial Court. Accordingly, the offence committed by the Accused warrants punishment under Section 304 (Part II), I.P.C. instead of 304 (Part I), I.P.C.

Accordingly, tHe Appeal is allowed in part and the conviction and sentence imposed on the Appellant for the offence under Section 304 (Part I) I.P.C. by the learned I Additional District and Sessions Judge, Fast Track Court No. 3, Dharapuram in S.C. No.128/2010 is hereby set aside and instead, the Appellant is convicted under Section 304 (Part II), I.P.C. and sentenced to undergo 5 years'' Rigorous Imprisonment, instead of Life Imprisonment imposed by the Trial Court.

At this juncture, the learned Counsel for the Appellant would submit that the Appellant/Accused is in Jail right from the date of his arrest, i.e., from 26.11.2009 and he is in prison for more than 5 years. Hence, this Court is of the considered view that the sentence could be modified to the period already undergone by him, in view Section 428, Cr.P.C. Accordingly, we modify the conviction under Section 304 Part II, I.P.C instead of 304 Part I, I.P.C., and impose sentence to the period already undergone by the Appellant/Accused and also the fine already imposed.

In the result, the Appellant is directed to be released forthwith from the prison, unless his presence is required in connection with any other case.