1. Heard.

2. Delay condoned.

3. Leave granted.

4. This Court places on record the able assistance rendered by Mr. Ayush Haritash, learned counsel for the appellant to enable this Court to effectively dispose of this appeal including Mr. Shaurya Sahay, learned AOR for the respondent.

5. Having heard the learned counsel appearing for the parties and on perusal of the records, it emerges therefrom that appellant was arraigned as accused No.5 in the FIR registered for the offence punishable under Sections 148, 302, 307, 323 read with Section 149 of the Indian Penal Code, 1860 and after investigation chargesheet came to be filed. Appellant came to be tried and convicted for the said offence and sentenced to undergo life imprisonment. On challenge being laid to the said judgment and sentence, the High Court allowed the appeal in part, modified the conviction from Section 302 to 304 Part II and sentenced the appellant to ten years rigorous imprisonment.

6. The conspectus of the instant case is that on 21.04.1977, deceased Phoolchand alongwith the complainant Munshilal were working in the agricultural field and at that point of time the accused persons alongwith 3-4 unknown persons came near the agricultural field armed with guns and co-accused Nanhu (since deceased) fired the shot at Phoolchand resulting in his death and the appellant. It was also alleged appellant Sewak Ram fired another gunshot, and it is thereafter deceased Phoolchand fell down and subsequently, succumbed to the injuries sustained. Though, the trial court accepted the prosecution case on the basis of evidence tendered by accepting it as gospel truth, the High Court while re-appreciating the entire evidence found on evaluation of the evidence of PW-2 - Dinesh Kumar and PW-3 - Ram Naresh, it was unable to ascertain the certainty of the injuries caused by the subsequent fire arm fired by the appellant herein. Hence, it arrived at a conclusion that the firearm injury caused by the subsequent gunshot by Sewak Ram - appellant cannot be held to be the cause of death of Phoolchand. In other words, it came to be held that it was unable to accept the plea of the prosecution that gunshot by appellant could not be the cause of death. This finding of the High Court has remained unchallenged. In other words, the State is not in appeal whereunder the judgment and order of sentence passed by the trial court convicting the appellant for an offence punishable under Section 302 came to be modified by the High Court by treating it as an offence punishable under Section 304 Part II.

7. In that view of the matter and also taking into consideration that the appellant is 84 years old, we are persuaded to arrive at a conclusion that sentence already undergone would suffice and meet the ends of justice and accordingly the sentence imposed by appellate Court is modified. Hence, the appeal is allowed in part. The judgment of the trial court which came to be modified by the High Court by converting the offence punishable under Section 302 to Section 304 Part II and sentencing him to 10 years rigorous imprisonment is modified to the extent of punishment already undergone. With this observation, the appeal stands disposed of.

8. Pending application(s), if any, shall stand disposed of.