1 2025:CGHC:2736-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1538 of 2021 Narayan Yadav S/o Shiv Kumar Yadav Aged About 21 Years R/o Village Pausari, Police Station Kotwali, District Baloda, Bazar, Presently At House Of Rajnath Yadav, Near Pump House, Police Outpost Cseb, Po- lice Station Kotwali, District Korba, Chhattisgarh. ... Appellant versus State of Chhattisgarh Through The Police Station House Officer, Police Station Kotwali, District Korba, Chhattisgarh. ... Respondent (Cause-title taken from Case Information System) For Appellant : Mr. Ashish Tiwari, Advocate For Respondent-State : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Judgment on Board Per Ramesh Sinha , Chief Justice 16.01.2025 1. Heard Mr. Ashish Tiwari, learned counsel for the appellant as well as Mr. Hariom Rai, learned Panel Lawyer appearing for the State/respondent. ANURADHA TIWARI Digitally signed by ANURADHA TIWARI Date: 2025.01.20 18:23:17 +0530 2 2. This criminal appeal filed by the appellant/accused under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is directed against the impugned judgment of conviction and order of sentence dated 28.08.2021, passed by the learned Sessions Judge, Korba, District Korba (C.G.) in Sessions Case No.09 of 2020, by which the appellant has been convicted and sentenced as under : Conviction Sentence Under Section 302 of the Indian Penal Code, 1860 (for short, ‘IPC’) : Imprisonment for life and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 06 months. Under Section 380 of the IPC Rigorous imprisonment for 05 years and fine of Rs.500/-, in default of payment of fine, additional rigorous imprisonment for 06 months. (Both the sentences were directed to run concurrently.) 3. Case of the prosecution, in brief, is that on 26.09.2019, accused Narayan Yadav lodged a complaint before Police Station C.S.E.B. to the effect that he lived in the house of his relative Rajnath Yadav at Pump House Korba and deceased Ram Babu Sharma had also worked at the contractor's place before 15-20 days of the incident. Deceased Ram Babu Sharma used to call the accused for drinking alcohol in the evening. On the date of incident, i.e. 24.09.2019, when Ram Babu Sharma called the accused for drinking alcohol, he went to his house in 3 Parshuram Nagar, Dadar at about 09.30 pm and where accused Narayan Yadav and Ram Babu Sharma drank alcohol. During the said time, accused Narayan Yadav showed the photo of his girlfriend on his mobile to Ram Babu Sharma, on which Ram Babu Sharma stated to elobe and bring his girlfriend and left her with him for one night, upon which accused Narayan got angry and a sudden quarrel took place between them, due to which accused Narayan Yadav with an intention of killing Ram Babu Sharma, assaulted him with a sharp iron knife, peeler and stick on his sensitive parts of the body i.e. head, forehead, neck and stomach, and dragged his body to the side of the bed. He took out clothes bags from cupboard etc. and covered him as also locked the room and fled towards Bilaspur with his Bolero. He had an accident ahead of Bilaspur, he was admitted in Sargaon Hospital, where his mother and maternal uncle Yuvraj Yadav were present and on being discharged from the hospital, accused Narayan Yadav came to Korba and narrated the incident to his maternal uncle Rajnath Yadav, maternal aunt, Rahul Chaudhary and Anuj Yadav stating them that body of Ram Babu Sharma was at his house. On the above information of accused, Dehati merg intimation (Ex.P/13) was registered at Police Station C.S.E.B. During the course of investigation, on 26.09.2019, the police of Parshuram Nagar Dadar, Police Station Manikpur reached to the place of occurrence and registered Dehatinalishi vide Ex.P/14 as per the statement of accused Narayan Yadav in the house of deceased Ram Babu Sharma. It was found that the accused had taken the purse kept 4 in the cupboard of the deceased containing Rs.7,000/-, taken out the key of Bolero from the room, took out two locks and locked the room of the house from outside, locked the main door and fled with the Bolero and when the dead body of deceased Ram Babu Sharma was found recovered, a crime under Sections 302, 380 of the IPC was registered against the accused. 4. During the investigation, the Investigating Officer prepared the Panchnama of the dead body recovered from the house of Ram Babu Sharma in the presence of witnesses vide Ex.P/1. On the basis of Dehatinalishi (Ex.P/14), a numbered merg intimation was registered at Police Station Kotwali, District Korba vide Ex.P/15. On 27.09.2019, the lock of the sealed house of deceased Ram Babu Sharma was opened and a Panchnama was prepared vide Ex.P/4. On 27.09.2019 itself, the Investigating Officer, after giving notice to the witnesses, Panchnama of the dead body of Ram Babu Sharma was prepared in their presence vide Ex.P/6. Blood stained soil and plain soil, white sheet and white mosquito net, plastic box and steel filter were seized from the house of deceased in front of witnesses and a seizure memo was prepared vide Ex.P/19. An application for postmortem of the deceased Rambabu Sharma was prepared and the body was sent to District Hospital Korba for postmortem and postmortem report of the dead body was obtained from the doctor. Thereafter, an unnumbered FIR bearing Crime No.0/19 was registered at CSEB Police Post and on sending the case to Kotwali 5 Police Station Korba, numbered First Information Report bearing Crime No.123/2019 was registered and on the basis of unnumbered Dehati merg intimation No.0/2019, numbered First Information Report bearing Crime No.595/2019 was registered at Kotwali Police Station, Korba vide Ex.P/36. 5. Thereafter, memorandum statement of accused Narayan Yadav was recorded on 27.09.2019 vide Ex.P/8, on the basis of which, one suitcase containing some documents, one suitcase containing pent- shirts, some clothes, mobile phone, ATM card, some keys, knife, peeler, stick, bolero vehicle as well as some medicines were seized at his instance vide Ex.P/9. Again, on interrogation, memorandum statement of the accused was recorded on 11.10.2019 vide Ex.P/10, on the basis of which, half-shirt and pent with blood stains was seized vide Ex.P/11. Appellant was arrested on 27.09.2019 at about 3.40 p.m. and arrest memo was prepared vide Ex.P/23 and information about the arrest was given to the family of the accused and statements of witnesses were recorded. A written complaint was sent to the Tehsildar for preparing the map of the incident site by the Patwari. Panchnama was prepared by obtaining the footage of CCTV camera No. 6 installed in Khula Ashramgrih, Dadar and CCTV footage was taken out from the DVR, loaded into a CD and seized in front of witnesses. The accused was sent to District Hospital, Korba along with an application for medical examination and a report was obtained from the Dr. vide Ex.P/35. 6 6. Upon investigation by the investigating officer, the peeler, knife, stick and other property seized and the white bed sheet, mosquito net, plastic box, steel filter, Rupa sando vest, pink colour sando vest, vegetable peeler on which blood splashes and marks and stains were visible were sent to the Medical Officer, District Hospital Korba along with a query application form and a query report was obtained from the doctor in relation to the opinion sought vide Exs.P/26 and P/27. The dead body of the deceased Ram Babu Sharma was sent for postmortem examination and in the postmortem report (Ex.P/34), conducted by Dr. R.K. Divya (PW-10), it was opined that the cause of death was shock due to right side of haemothorax due to laceration of apex lobe of right lung secondary to incised would over upper part of right side of front of chest and nature of death was homicidal. The seized articles was sent to the Regional Forensic Science Laboratory, Bilaspur through the Superintendent of Police, Korba and according to FSL report (Ex.P/28), blood stains was not found in some articles. However, blood stained was found in many of the articles like utensils, knife, stick and clothes of of the appellant. The blood group is found on the knife as “A” group. 7. Statements of the witnesses were recorded. After due investigation, the Police filed charge-sheet against the appellant before the jurisdictional criminal Court and the case was committed to the Court of Sessions for trial and for hearing and disposal in accordance 7 with law. Statement of the appellant was recorded under Section 313 of Cr.P.C., in which, he denied the circumstances appearing against him in the evidence brought on record by the prosecution, pleaded innocence and false implication. 8. After appreciating the facts and circumstances of the case, the trial Court has framed charges against the appellant for the offence punishable under Sections 302 and 380 of the IPC and proceeded on trial. 9. In order to bring home the offence, the prosecution examined as many as 11 witnesses and exhibited 36 documents. The appellant- accused examined Kamlesh Sharma (DW-1) in his defence. 10. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 28.08.2021, convicted the accused-appellant for the offence punishable under Sections 302 and 380 of the IPC and sentenced him as aforementioned, against which, this criminal appeal has been filed. 11. Mr. Ashish Tiwari, learned counsel for the appellant submits that the learned trial Court is absolutely unjustified in convicting the appellant for the offence punishable under Sections 302 and 201 of the IPC, as the prosecution has failed to prove the offence beyond reasonable doubt. He further submits that if the case of the prosecution is accepted on the face of it, then also the appellant is said to have 8 caused injuries to deceased on the spur of the moment, as upon seeing the photograph of girlfriend of appellant, Ram Babu Sharma stated to bring his girlfriend and left her with him for one night. There was no motive or intention on the part of the appellant to cause death of the deceased and only on account of sudden quarrel, under heat of passion and in anger, the appellant caused injuries to the deceased, which caused his death. Therefore, the case of the present appellant falls within the purview of Exception 4 to Section 300 of the IPC and the act of the appellant is culpable homicide not amounting to murder, and therefore, it is a fit case where the conviction of the appellant for the offence punishable under Section 302 of the IPC can be converted/altered to an offence under Section 304 (Part-I or Part-II) of the IPC. Further, as appellant is in jail since 27.09.2019 and he has completed near about 05 years and 04 months, and therefore, considering the period he had already undergone, he be awarded the sentence of the period already undergone by him. Hence, the present appeal deserves to be allowed in full or in part. He placed reliance on the judgment rendered by Hon’ble Supreme Court in the matter of Raja Naykar v. State of Chhattisgarh1. 12. Per contra, Mr. Hariom Rai, learned Panel Lawyer supported the impugned judgment of conviction and order of sentence and submits that the prosecution has proved the offence beyond reasonable doubt by leading evidence of clinching nature. He further submits that in view 1 (2024) 3 SCC 841 9 of statements of the prosecution witnesses coupled with other material available on record, the learned trial Court has rightly convicted the appellant for offence under Sections 302 and 380 of IPC. It has been contended that appellant has committed heinous crime of murder and in such circumstances, it is not the case where conviction of the appellant for offence under Section 302 of IPC requires to be altered to Section 304 Part-I or Part-II of IPC. Thus, the present appeal deserves to be dismissed. 13. We have heard learned counsel for the parties, considered their rival submissions made herein-above and gone through the records with utmost circumspection. 14. The first question for consideration would be, whether death of deceased Ram Babu Sharma was homicidal in nature ? 15. The trial Court after appreciating oral and documentary evidence available on record particularly relying upon the statement of Dr. R.K. Divya (PW-10), who conducted postmortem, stated that the reason of death is shock due to right side of haemothorax due to laceration of apex lobe of right lung secondary to incised would over upper part of right side of front of chest and nature of death was homicidal, but depends on circumstantial evidence. After hearing learned counsel for the parties and after considering the submissions, we are of the considered opinion that the finding recorded by the trial Court that death 10 of deceased Ram Babu Sharma was homicidal in nature is the finding of fact based on evidence available on record. It is neither perverse nor contrary to record. We hereby affirm that finding. 16. Now, the next question for consideration would be whether the accused/appellant herein is the perpetrator of the crime in question, which the learned trial Court has recorded in affirmative by relying upon the testimony of Dr. R.K. Divya (PW-10), who conducted postmortem had opined that the cause of death is shock due to right side of haemothorax due to laceration of apex lobe of right lung secondary to incised would over upper part of right side of front of chest. The Doctor ultimately opined through his report the nature of death to be homicidal. Thus, on the basis of testimony of Dr. R.K. Divya (PW-10), it is clear that it is the appellant herein who on the fateful date and time has caused grievous injuries to the deceased, due to which he died. As such, the learned trial Court has rightly held that it is the appellant/accused who has caused injuries over the body of the deceased and caused his death. Accordingly, we hereby affirm the said finding. 17. The aforesaid finding brings us to the next question for consideration, whether the case of the appellant is covered within Exception 4 to Section 300 of the IPC vis-a-vis culpable homicide not amounting to murder and his conviction can be converted to Section 304 Part-I or Part-II of the IPC, as contended by learned counsel for the appellant ? 11 18. The Supreme Court in the matter of Sukhbir Singh v. State of Haryana2 has observed as under:- “21. Keeping in view the facts and circumstances of the case, we are of the opinion that in the absence of the existence of common object Sukhbir Singh is proved to have committed the offence of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and did not act in a cruel or unusual manner and his case is covered by Exception 4 of Section 300 IPC which is punishable under Section 304 (Part I) IPC. The finding of the courts below holding the aforesaid appellant guilty of offence of murder punishable under Section 302 IPC is set aside and he is held guilty for the commission of offence of culpable homicide not amounting to murder punishable under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5000. In default of payment of fine, he shall undergo further 2 (2002) 3 SCC 327 12 rigorous imprisonment for one year.” 19. The Supreme Court in the matter of Gurmukh Singh v. State of Haryana3 has laid down certain factors which are to be taken into consideration before awarding appropriate sentence to the accused with reference to Section 302 or Section 304 Part II of the IPC, which state as under :- “23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen fro its special perspective. The relevant factors are as under : (a) Motive or previous enmity; (b) Whether the incident had taken place on the spur of the moment; (c) The intention/knowledge of the accused while inflicting the blow or injury; (d) Whether the death ensued instantaneously or the victim died after several days; 3 (2009) 15 SCC 635 13 (e) The gravity, dimension and nature of injury; (f) The age and general health condition of the accused; (g) Whether the injury was caused without premeditation in a sudden fight; (h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted; (i) The criminal background and adverse history of the accused; (j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock; (k) Number of other criminal cases pending against the accused; (l) Incident occurred within the family members or close relations; (m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the 14 injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment ? These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused. 24. The list of circumstances enumerated above is only illustrative and not exhaustive. In our considered view, proper and appropriate sentence to the accused is the bounded obligation and duty of the court. The endeavour of the court must be to ensure that the accused receives appropriate sentence, in other words, sentence should be according to the gravity of the offence. These are some of the relevant factors which are required to be kept in view while convicting and sentencing the accused.” 20. Likewise, in the matter of State v. Sanjeev Nanda4, their Lordships of the Supreme Court have held that once knowledge that it is likely to cause death is established but without any intention to cause death, then jail sentence may be for a term which may extend to 10 4 (2012) 8 SCC 450 15 years or with fine or with both. It has further been held that to make out an offence punishable under Section 304 Part II of the IPC, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death. 21. Further, the Supreme Court in the matter of Arjun v. State of Chhattisgarh5 has elaborately dealt with the issue and observed in paragraphs 20 and 21, which reads as under :- “20. To invoke this Exception 4, the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. UT, Chandigarh [(1989) 2 SCC 217 : 1989 SCC (Cri) 348], it has been explained as under : (SCC p. 220, para 7) “7. To invoke this exception four requirements must be satisfied, namely, (I) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor its I relevant who offered the provocation or started the assault. The 5 (2017) 3 SCC 247 16 number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.” 21. Further in Arumugam v. State [(2008) 15 SCC 590 : (2009) 3 SCC (Cri) 1130], in support of the proposition of law that under what circumstances Exception 4 to Section 300 IPC can be invoked if death is caused, it has been explained as under : (SCC p. 596, para 9) “9. …. '18. The help of exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) 17 without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the “fight” occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was 18 no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression “undue advantage” as used in the provisions means “unfair advantage”. 22. In the matter of Arjun (supra), the Supreme Court has held that if there is intent and knowledge, the same would be case of Section 304 Part-I of the IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case of Section 304 Part-II of the IPC. 23. Further, the Supreme Court in the matter of Rambir v. State (NCT of Delhi)6 has laid down four ingredients which should be tested to bring a case within the purview of Exception 4 to Section 300 of IPC, which reads as under: “16. A plain reading of Exception 4 to Section 300 IPC shows that the following four ingredients are required: (i) There must be a sudden fight; (ii) There was no premeditation; (iii) The act was committed in a heat of passion; and 6 (2019) 6 SCC 122 19 (iv) The offender had not taken any undue advantage or acted in a cruel or unusual manner.” 24. Kamlesh Kumar Singh (PW-2), who is son of the deceased, has stated in his deposition that he did not recognize the accused and Ram Babu Sharma was my father. He further deposed that on 26.09.2019, at about 7.00 pm, he received a call from Town Inspector that your father has been murdered in his house, then he went to his father's house in Parshuram Nagar with his wife. There was a crowd of policemen and people there, the lock of the boundary gate was broken, the door of the room was closed and locked, which the policemen broke in front of him. There were blood stains in the room at many places, the things were lying in a mess, but his father was nowhere to be seen. Accused was also present at that time with the policemen at that time and when asked, he told that his father was between the wall and diwan, then we saw the dead body of his father was between the wall and diwan, on which a pile of blankets, mosquito nets and clothes were lying. 25. Ravishanker Shrivas (PW-3), Rampradeep Sharma (PW-4), Ramniwas Sharma (PW-5) and Jaleshwar Sakat (PW-6) are the seizure witnesses. 26. Conviction of the appellant is based on the evidence of Dr. R.K. Divya (PW-10), who has conducted postmortem on the body of deceased, vide Ex.P/34 and he found following injuries on the dead 20 body of the deceased:- “On external examination of the body, he found lying face down on the table in the mortuary. The colour of the face of the deceased was changed, eyes were closed and swollen, mouth was closed. The colour of the skin over the entire body was changed, pupils of the eyes were dilated and the membranes of the eyes were bloodless, there was swelling all over the body, skin and hair were peeling off due to pulling, marble like marks were visible on his arms and thighs.” Details of injuries :- “1. A cut injury was present on the right side of his forehead measuring 6 X 2 cm, deep to the bone, positioned vertically; 2. A cut injury was present on the left side of his forehead, measuring 3 X 1 cm, deep to the bone, in a vertical position; 3. A cut injury was present on the skin over the right parietal bone of the head posteriorly, measuring 4 X 2 cm, deep to the bone, in a vertical position; 4. A cut injury was present on the skin over left 21 parietal bone measuring 5 X 2 cm, deep to the bone, positioned vertically over the middle part of parietal bone; 5. A lacerated injury was present on the anterior aspect of abdomen over iliac fossa portion measuring 4 X 2 X 2 cm; 6. A cut injury was present on right upper side of chest, just below clavicle bone, measuring 4 X 2 X deep to apex of lung.” The above-mentioned injuries were antemortem in nature and were caused by hard and sharp objects. The postmortem stiffness had passed through the entire body, on external examination the deceased was of stature and decomposition had started in the body. On internal examination of the body, it was found that the skull, cranium and vertebrae were healthy and bloodless, brain and spinal cord were bloodless, diaphragm, ribs and soft tissues were healthy, lungs were bloodless, right lung membrane was ruptured and right side chest was filled with blood. Larynx and windpipe were 22 bloodless, right lung was bloodless and had a rupture in upper lobe measuring 3 X 2 X 3 cm, which was in oblique position extending upto mid- lobe, left lung was bloodless, cardia was bloodless, all chambers of heart were empty. Large vessels were healthy, diaphragm, intestinal membrane, mouth and oesophagus were bloodless. The stomach and its contents were empty and bloodless, the small intestine and its contents were empty and bloodless, the large intestine and its contents - bloodless, the liver was swollen, the internal and external genitals were swollen. The spleen, kidney were bloodless, the urinary bladder was empty. His scrotum and penis were swollen and colorless.” 27. According to Dr. R.K. Divya (PW-10), the cause of death of deceased is shock due to right side of haemothorax due to laceration of apex lobe of right lung secondary to incised would over upper part of right side of front of chest and nature of death was homicidal. It has been also opined by the concerned Doctor that the injury caused to the deceased has been by the sharp edged weapon and the same may be caused by knife. 23 28. Reverting to the facts of the present case, in light of principles of law laid down by their Lordships of the Supreme Court in the above- stated judgments, it is quite vivid that the appellant himself has lodged a First Information Report alleging that, on the date of incident, some quarrel took place between the appellant and the deceased on the ground of showing the photograph of his girlfriend to the deceased and the deceased stated to bring his girlfriend and left her with him for one night, then out of anger and on sudden quarrel, the appellant assaulted the deceased with a knife on his chest, by which he received grievous injury and died on the same day of the incident on account of excessive bleeding due to injury on his chest. It further appears from the fact on record that appellant after committing the crime in question, has lodged the report and upon his memorandum some incriminating articles have been recovered from his instance and upon further investigation, second memorandum has been recorded, by which, his clothes were recorded. It is apparent that though there was no premeditation on the part of the appellant to cause death of deceased, but he had given false version. The appellant did not had any intention to cause death of deceased, but by causing such injury, he must had the knowledge that such injuries inflicted by him would likely to cause death of Ram Babu Sharma, as such, his case would fall within the purview of Exception 4 of Section 300 of IPC, as the act of the appellant herein completely satisfies the four necessary ingredients of Exception 4 to Section 300 IPC i.e. (i) there must be a sudden fight; (ii) there was no premeditation; 24 (iii) the act was committed in a heat of passion and (iv) the appellant had not taken any undue advantage or acted in a cruel or unusual manner. 29. Learned counsel for the appellant has relied upon paragraphs-24 to 26 and 28 of the judgment rendered in Raja Naykar (supra), which is as follows for easy reference :- “24. Undisputedly, the dead body was found much prior to the recording of the Memorandum of the appellant under Section 27 of the Evidence Act. Therefore, only that part of the statement which leads to recovery of the dagger and the rickshaw would be relevant. 25. The Property Seizure Memo would show that the dagger was seized from a place accessible to one and all. According to the prosecution, the incident took place on 21st October, 2009 and the recovery was made on 25th October, 2009. 26. As per the FSL report, the blood stains found on the dagger were of human blood. However, the FSL report does not show that the blood found on the dagger was of the 25 blood group of the deceased. Apart from that, even the serological report is not available. x x x 28. Another circumstance relied on by the Trial Judge is with regard to recovery of blood-stained clothes on a Memorandum of the appellant. The said clothes were recovered from the house of the appellant’s sister-in-law. The alleged incident is of 21st October 2009, whereas the recovery was made on 25th October, 2009. It is difficult to believe that a person committing the crime would keep the clothes in the house of his sister-in-law for four days.” 30. The case law relied upon by the learned counsel for the appellant in the matter of Raja Naykar (supra) is of no help to the appellant as the same is distinguishable on the facts of the instant case. 31. Considering the above-stated facts, also considering the evidence of witnesses and taking into consideration that at present appellant- Narayan Yadav is aged about 21 years and he is in jail since 27.09.2019 (for about 05 years and 4 months), the conviction of the appellant under Section 302 of the IPC can be altered/converted to Section 304 Part-I of the IPC. 26 32. Accordingly, conviction and sentence of the appellant under Section 302 of the IPC is set aside, however, he is convicted under Section 304 Part-I of the IPC and sentenced to undergo rigorous imprisonment for 10 years. The conviction and sentenced awarded by the trial Court under Section 380 of the IPC, is hereby affirmed. 33. The appellant is stated to be in jail since 27.09.2019 being the date of arrest. He is directed to serve out the sentence as modified above. 34. The criminal appeal is allowed in part to the extent indicated hereinabove. 35. Registry is directed to send a certified copy of this judgment along with the original record of the case to the trial court concerned forthwith for necessary information and compliance and also send a copy of this judgment to the concerned Superintendent of Jail where the appellant is undergoing his jail sentence to serve the same on the appellant informing him that he is at liberty to assail the present judgment passed by this Court by preferring an appeal before the Hon’ble Supreme Court, if so advised, with the assistance of High Court Legal Services Committee or the Supreme Court Legal Services Committee. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Anu