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respect of those goods only which are manufactured in a unit which has undertaken expansion, diversification or modernisation on or after april 1, 1990, and which in the case of diversification, are different from the goods manufactured before such diversification, and in the case of expansion or modernisation are additional production as a result of such expansion or modernisation ; and ( 3 ). ( 4 ). ( 5 ) " unit which has undertaken expansion, diversification or modernisation " means an industrial undertaking ( a ). ( b ) whose first date of production of goods, - - ( c ) the production capacity whereof except as provided in the proviso to sub - section ( 1 ) has increased by atleast twenty - five percent as a result of expansion or modernisation, or wherein goods of a nature different from those manufactured earlier are manufactured after diversification ; 8. 1 thus, on a fair reading of the aforesaid provisions, it is clear that in case of diversification the goods manufactured by diversification shall be different from the goods manufactured before such diversification [ section 4 - a ( 2 ) ( c ) ]. 8. 2 in the case of expansion or modernization, the exemption shall be available, if there is an additional production as a result of such modernization or expansion. in the present case, we are concerned with the case of diversification. therefore, the goods manufactured after diversification must be different goods from the goods manufactured before such diversification. as per the settled position of law, in case of an exemption notification / exemption provision, the same is required to be construed literally and the person claiming the exemption must satisfy all the conditions of exemption provision. 8. 3 in the present case, the appellant was manufacturing / producing spun line crown cork used for sealing the glass bottles. with the use of modern technologies, now the appellant is manufacturing double lip 12 dry blend crowns, which is also used for sealing the glass bottles. the earlier product being manufactured by the appellant was used for sealing glass bottles and subsequently the additional product produced with the use of modern technology is also being used for the same purpose namely, sealing glass bottles. therefore, the same cannot be said to be manufacturing of goods different from being manufactured before such diversification. with the passage of time, due to advancement in technology, if there is a replacement of the old machinery with the new machinery for improvement in quality and quantity of a product, at

the most, it can be said to be expansion and / or modernization, but it cannot be said to be diversification, which is manufacturing of goods different from the goods manufactured before such diversification. in a case of diversification, the effect has to be that the quality and quantity of the product should have been improved and / or increased but if the ultimate use is the same, the product manufactured on use of modern and / or advanced technology cannot be said to be manufacturing the different goods for claiming the exemption from payment of trade tax. the words used in section 4 - a are very clear and unambiguous. as per the settled proposition of law and as observed hereinabove, the statute and more particularly, the exemption provisions are to be read as they are and to be construed literally and should be given a literal meaning. giving the literal meaning to the exemption provision namely, section 4 - a, it cannot 13 be said that the appellant is entitled to the exemption as claimed. 8. 4 considering the aforesaid facts and circumstances of the case and as observed hereinabove, when the provisions of the act unequivocally provides that the diversification can be considered only in a case where goods of different nature are produced, and only then the exemption shall be available. the goods manufactured on diversification must be a different, distinct and a separate good in nature. in the present case, the goods manufactured on use of advance and / or modern technology, cannot be said to be a different commercial activity at all. the high court has not committed any error in refusing to grant exemption to the appellant. we are in complete agreement with the view taken by the high court. 9. in view of the above and for the reasons stated above, present appeal fails and the same deserves to be dismissed and is accordingly dismissed. no costs.. j.

bela m. trivedi, j. 1. leave granted. 2. the present appeal is directed against the judgment and order dated 01. 02. 2018 passed by the high court of judicature at patna in lpa no. 2035 of 2016, whereby the high court has dismissed the appeal filed by the appellant - bank and confirmed the order passed by the single bench. 3. signature not verified the short facts giving rise to the present petition are that the digitally signed by jayant kumar arora respondent while posted as a branch manager at marufganj date : 2023. 01. 10 11 : 26 : 48 ist reason : branch and at various other branches, was found to have 1 committed various lapses, in respect of which he was suspended on 14. 06. 1993 in terms of rule 50a ( i ) ( a ) of sbiosr, 1992. on the departmental proceedings having been conducted against him, the inquiry authority had submitted its report on 09. 03. 1998, whereby some of the allegations were found to be proved and some were found to be partly proved. the disciplinary authority agreed with some of the findings recorded by the inquiry authority and called upon the respondent to make his submissions on the same. however thereafter the matter was sent to the appointing authority, which imposed the penalty of dismissal from service as per the order dated 11. 08. 1999. 4. the respondent being aggrieved by the said order had filed a writ petition being no. 2739 of 2000 before the high court which came to be allowed by the single bench vide order dated 26. 03. 2003. the appellant - bank aggrieved by the said order had filed an lpa being no. 378 of 2003. on 09. 05. 2003, the division bench stayed the implementation of the order dated 26. 03. 2003 passed by the single bench, however finally dismissed the said lpa vide order dated 22. 04. 2010. in the meantime, the respondent attained the age of superannuation on 30. 11. 2009. the appellant - bank having filed slp ( c ) no. 16541 of 2010 challenging the order dated 2 22. 04. 2010 passed by the division bench, the same came to be allowed by this court on 25. 11. 2013. while allowing the slp, this court observed as under : 5. in view of the above order passed by this court, the appointing authority issued a show - cause notice to the respondent on 06

. 02. 2014, to which the respondent submitted his response on 3 10. 02. 2014. the appointing authority after granting personal hearing to the respondent on 14. 02. 2014, passed an order on 17. 02. 2014 imposing upon the respondent the penalty of dismissal from service in terms of rule 67 ( j ) of sbisor w. e. f. 11. 08. 1999 and treating his period of suspension as not on duty. 6. being aggrieved by the said order passed by the appointing authority, the respondent filed departmental appeal before the appellate authority on 24. 02. 2014, which came to be dismissed on 09. 08. 2014. the respondent therefore again approached the high court by way of filing cwjc no. 10192 of 2014. the single bench of the high court vide the order dated 22. 08. 2016 allowed the said petition, and quashed and set aside the order of dismissal passed by the appellant - bank and directed the appellant - bank to pay all the consequential benefits i. e., arrears of salary and retiral benefits within 3 months thereof. the aggrieved appellant - bank filed lpa being no. 2035 of 2016 on 17. 10. 2016, which came to be dismissed by the division bench vide the impugned order dated 01. 02. 2018. 7. the learned asg mr. balbir singh for the appellant - bank vehemently submitted that the high court had committed gross error in confirming the order passed by the single bench, and in 4 misinterpreting the rule 19 ( 1 ) and 19 ( 3 ) of the sbiosr, 1992. according to him, this court in the first round of litigation had allowed the appeal filed by the appellant - bank and set aside the order passed by the division bench, and while observing that the person who hears the matter requires to pass an order, had directed the appointing authority to take appropriate decision within 2 months, keeping all the contentions of the parties open. the appointing authority, therefore had issued a show - cause notice to the respondent and after giving him an opportunity of hearing had passed the order of dismissal, which was wrongly set aside by the single bench and by the division bench. 8. however, the learned counsel mr. kripa shankar prasad appearing for the respondent submitted that an affirmative action was expected to be taken by the appellant - bank in view of the order passed by the supreme court on 25. 11. 2013, as the respondent had already attained the age

of superannuation pending the proceeding before the high court. he further submitted in the said order the supreme court had set aside the order of division bench, however had agreed with the view expressed by the single bench that as per the settled legal principle, the person who hears the matter is required to pass an 5 order. according to him, the supreme court had granted the liberty only to the extent of directing the appointing authority to take appropriate action in accordance with law as the respondent had attained the age of superannuation. under the circumstances, the appointing authority was required to take steps either to extend the service of the respondent in terms of rule 19 ( 1 ), or to continue the disciplinary proceedings, even after the superannuation of the respondent under rule 19 ( 3 ) of the rules, however the appellant - bank did not take recourse to any of the said rules. he further submitted that the discretion to continue with the disciplinary proceedings had to be exercised as an affirmative action by taking a conscious decision, which the appointing authority of the appellant - bank had failed to take, and on the contrary passed the order of dismissal with retrospective effect which was not legally permissible. 9. since much reliance has been placed by the learned counsel appearing for the respondent on rule 19 ( 1 ) and 19 ( 3 ) of the sbiosr rules, the same are reproduced for the sake of convenience. provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty - eight years or bas completed thirty years'service or thirty years'pensionable service as the case may be, should such extension be deemed desirable in the interest of the bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension. provided further that an officer who had joined the service of the bank either as an officer or otherwise on or after july, 19, 1969 and attained the age of 58 years shall not be granted any further extension in service. provided further that an officer may, at the discretion of the executive committee, be retired from the bank's service after he has attained 50 years of age or has completed 25 years'service or 25 years'pensionable service as the case may be, by giving him three months'notice in writing or pay in lieu thereof. provided further that an officer who has completed 20 years'service or 20 years '

pensionable service, as the case may be, may be permitted by the competent authority to retire from the bank's service, subject to his giving three months'notice or pay in lieu thereof unless this requirement is wholly or partly waived by it. 19. ( 2 )................... 19. ( 3 ) in case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the bank's service by i the operation of, or by virtue of, any of the said rules or the provisions of these rules, the disciplinary proceedings m'ay, at the discretion of the managing director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. explanation : an officer will retire on the last day. of the month in which he completes the stipulated service or age of retirement. " 710. on the bare perusal of the said rules it clearly transpires that as per rule 19 ( 1 ) of the rules, an officer could retire from the service of the bank on attaining the age of 58 years or upon the completion of 30 years service or 30 years of pensionable service if he is a member of the pension fund whichever occurs first, subject to the provisos mentioned therein. as per the rule 19 ( 3 ), in case the disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the bank s service by operation of, or by virtue of any of the rules, the disciplinary proceedings may at the discretion of managing director be continued and concluded, as if the officer had continued to be in service. however, the officer in that case shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings. 11. so far as the facts of the present case are concerned, the disciplinary proceedings against the respondent were already initiated and had stood concluded, culminating into dismissal from service as per the order dated 11. 08. 1999 passed by the appointing authority. the said order was challenged by the respondent by filing the writ petition, which came to be allowed by the single bench on 26. 03. 2009 whereby the order of dismissal 8 was set aside, nonetheless the appellant - bank having preferred

the lpa no. 378 of 2003, the division bench had stayed the operation and implementation of the said order passed by the single bench on 09. 05. 2003. the said lpa came to be dismissed on 22. 04. 2010, in the meantime on 30. 11. 2009, the respondent attained the age of superannuation i. e., during the time, when the operation of the order of single bench was stayed. thus, the order of single bench setting aside the order of dismissal passed by the appointing authority having been stayed by the division bench, the respondent could not be deemed to have continued in service, and also when he had attained the age of superannuation on 30. 11. 2009. thereafter, the order of division bench dated 22. 04. 2010 passed in the lpa 378 of 2003 having been set aside by this court while allowing the appeal filed by the appellant - bank vide the order dated 25. 11. 2013, again it could not be said that the respondent was continued in service, till he attained the age of superannuation. 12. the reliance placed by the learned counsel for the respondent on rule 19 ( 3 ) of the rules is also thoroughly misplaced in as much as rule 19 ( 3 ) contemplates a situation, when the disciplinary proceedings against a bank officer, have already been initiated, 9 and are pending when the officer ceases to be in the bank s service, and in that case the managing director in his discretion may continue and conclude the disciplinary proceedings against the officer as if the officer continues to be in service. however, in the instant case, there was no question of managing director exercising such discretion under rule 19 ( 3 ) as the disciplinary proceedings initiated against the respondent had already culminated into his dismissal as per the order dated 11. 08. 1999 passed by the appointing authority. though the said order of dismissal was set aside by the single bench, the order of single bench had remained stayed pending the lpa filed by the bank ; and though the lpa was dismissed by the division bench, the said order in lpa was set aside by this court, observing that the person who hears the matter has to decide it. 13. it was only pursuant to the direction given by this court vide the order dated 25. 11. 2013, the appointing authority was expected to hear the respondent and pass appropriate order. this court had kept all the contentions of all the parties open. hence the appointing authority after issuing show - cause notice and granting

opportunity of hearing to the respondent had passed the order imposing the penalty of dismissal from service w. e. f. 11. 08. 1999, 10 i. e., from the date when the first order of dismissal was passed by the appointing authority. since all the contentions were kept open by this court while allowing the appeal filed by the appellant - bank, as such no affirmative action was expected from the appellant - bank, as sought to be submitted by the learned counsel for the respondent. the said order of appointing authority dismissing the respondent from service after granting opportunity of hearing to the respondent was in consonance with the direction given by this court and could not be said to be arbitrary illegal or in violation of rule 19 ( 3 ) of the said rules. the impugned order of the high court setting aside the said order of dismissal being under misconception of facts and law deserves to be quashed and set aside. 14. in that view of the matter the impugned order passed by the division bench confirming the order passed by the single bench, is hereby accordingly set aside. 15. the appeal stands allowed.. j. [ krishna murari ].................................. j. [ bela m. trivedi ] new delhi ; 09. 01. 2023 11

b. r. gavai, j. 1. present appeal challenges the judgment and order dated 5th june, 2009, passed by the division bench of the high court of jammu and kashmir at jammu ( high court for short ) in criminal appeal no. 09 of 1991, thereby dismissing the appeal filed by appellants - accused and confirming the order of conviction and sentence awarded on 23 rd march, 1991 by learned sessions judge, kathua ( sessions judge for short ) in trial case no. 89 / 1990. signature not verified digitally signed by narendra prasad date : 2023. 01. 19 18 : 49 : 47 ist reason : 12. the facts leading to present appeal are as under : inspector basant singh reached the hospital and recorded the statement ( exh. pw - bs ) of jaswinder in 2 presence of dr renu jamwal, who declared him fit to give the statement. on the basis of statement of jaswinder ( ex. pw - bs ) first information report ( fir for short ) no. 213 / 90 was registered under section 307 / 382 / 342 / 148 / 149 of the jammu and kashmir state ranbir penal code ( rpc for short ) at the police station. later, manjit kumar and jaswinder both succumbed to their injuries. thereafter, section 302 of rpc was added. ii. in the statement ( ex. pw - bs ) of deceased jaswinder it is stated that, he and manjit kumar had gone to village jagatpur to get fodder. when they were walking in the street abutting the house of the accused party, accused lal chand, bias, sant kumar, roshan, madan lal along with other sons of accused no. 1 - lal chand ( since deceased ) dragged them inside the house and assaulted them with iron rods ( sariya ), sickle ( drat ) and sticks. 3they were provided water which was undrinkable / tasteless. further, accused - sant kumar stole rs 300 from the deceased s pocket. iii. the prosecution s case, in a nutshell, is that accused no. 2 - bias raj had borrowed a sum of rs 50 from the brother of the deceased - jaswinder i. e. p. w. 1 - praveen kumar and p. w.

1 - praveen kumar had demanded the sum 3 - 4 days prior to occurrence of the incident. on the day of the incident p. w. 1 - praveen kumar had gone to village to get labourers. when he was close to the house of the appellants, he was dragged inside and assaulted. thereafter, they confined him to fodder room and assaulted manjit kumar and jaswinder. p. w. 1 - praveen kumar managed to escape the place of occurrence. p. w. 1 - praveen kumar was also accompanied by p. w. 2 - hardev singh and the 4 occurrence of the above incident was narrated to p. w. 3 - chajju ram and krishan chand lambardar. iv. the investigating officer ( io for short ) submitted final report wherein it is stated that the above - mentioned incident was preceded by assault and wrongful confinement of p. w. 1 - praveen kumar by the appellants when he had come in search of labourers. v. accused no. 1 - lal chand ( since deceased ), accused no. 2 - bias raj, accused no. 3 - mohinder pal alias roshan, accused no. 4 - basant kumar, accused no. 5 - om prakash alias doctor, accused no. 6 - kishan chand and accused no. 7 - madan lal were tried. accused nos. 2 to 6 are sons of accused no. 1 - lal chand ( since deceased ). on 16th august 1990, charges came to be framed by the sessions judge for offences punishable under section 302, 148 and 149 of the rpc. 5 vi. the appellants pleaded not guilty and claimed to be tried. the prosecution examined as many as 19 witnesses to bring home the guilt of accused - appellants. their defence was that the appellants exercised the right of private defence as accused no. 1 - lal chand ( since deceased ) was assaulted by both the deceased who were hired as there was litigation pending between the parties. at the conclusion of the trial, the sessions judge acquitted accused no. 5 - om prakash and accused no. 6 - kishan chand and convicted accused nos. 1 to 4 and 7 under section 302, 148 and 149 of the rpc and sentenced them to life imprisonment with a fine of rs. 500 each and three months simple imprisonment in case of default

in payment of fine. 6 vii. being aggrieved thereby, appellants - accused filed an appeal before the high court. accused no. 1 - lal chand died during the pendency of the appeal. accused no. 2 - bias raj was absconding and his presence could not be secured even after issuing non - bailable warrant. on 5th june, 2009, high court vide impugned judgment, dismissed the appeal filed by the appellants and upheld their conviction and confirmed the sentence awarded to them by the sessions judge. 3. being aggrieved thereby the present appeal was filed by accused no. 3 - mohinder pal, accused no. 7 - madan lal and accused no. 4 - basant kumar. 4. we have heard mr. tripurari ray, learned counsel appearing for the appellants - accused and mr. shailesh madiyal, learned counsel appearing on behalf of respondent - state of jammu and kashmir. 75. mr. tripurari ray submits that the high court and the sessions judge have grossly erred in convicting the appellants - accused. mr. ray submits that it was the deceased - manjeet kumar and jaswinder who trespassed into the house of the appellants and assaulted accused no. 1 - lal chand ( since deceased ). thereafter, the appellants exercised their right of private defence and assaulted the deceased. further, most of the injuries that were caused to the deceased were on their legs and not with an intention to cause severe harm. 6. mr. ray further submits that on a perusal of the dying declaration i. e. statement of deceased jaswinder it would reveal that dr. renu jamwal stated that the patient was not in a condition to sign the statement due to swelling. the said statement does not state any details regarding the mental / physical state of the patient whether he is of sound mind and consciousness. further, dr. renu jamwal admitted 8 that the patient was minimum conscious and not fully oriented to place. 7. mr. ray urged that the evidence of p. w. 1 - praveen kumar and p. w. 3 - chhajju ram contradict the dying declaration on several points. the dying declaration does not state that p. w. 1 - praveen kumar was assaulted and confined in the house of the appellants which is why both the deceased went to the house of the appellants instead it just states that they were finishing their work

and were assaulted by the appellants. 8. mr. shailesh madiyal appearing on behalf of the respondent - state submits that the sessions judge and high court have concurrently held that dying declaration is a substantive piece of evidence. the same is attested by pw - si basant singh and dr. renu jamwal. it is also corroborated by the evidence of the p. w. 1 - praveen kumar and p. w. 2 - hardev singh. thus, it cannot be simply brushed aside. 99. mr. madiyal further submitted that the right of private defence should be exercised in reasonable manner. the nature of injuries would reveal multiple fractures and the weapons used would indicate that the appellants assaulted the deceased with intention to kill them. 10. we have perused the materials placed on record. from the materials placed on record, particularly, the post - mortem report, it cannot be disputed that the death of the deceased was homicidal. 11. insofar as the incident is concerned, the prosecution mainly relies on the dying declaration of deceased - jaswinder as well as the oral testimony of p. w. 1 - praveen kumar, the brother of deceased - jaswinder and p. w. 2 - hardev singh. the dying declaration of deceased - jaswinder implicates accused no. 1 - lal chand ( since deceased ) as well as the accused - appellants. it is to be noted that though in the dying declaration it is stated that there was no previous enmity between deceased - jaswinder and 10 the accused appellants, from the evidence of p. w. 1 - praveen kumar, it would reveal that an amount of rs. 50 / - was taken by accused bias from p. w. 1 - praveen kumar and the dispute was with regard to non - payment of the same. 12. though p. w. 1 - praveen kumar states that he went to village jagatpur to fetch labourers and the accused appellants caught him and started beating him and thereafter tied him and confined him in a verandah, there is no mention with regard to the same in the dying declaration of deceased - jaswinder. p. w. 1 - praveen kumar states in his evidence that after some time, when his brothers manjit and jaswinder were going in the lane abutting the house of

accused persons, the accused persons assaulted them with drat and iron rod. according to him, when they, on account of injuries, became unconscious, the accused persons dragged them into the house. he states that he untied the rope and managed to escape. he further states that when he reached teli more, he revealed the 11 occurrence of the incident to kewal krishna and thereafter they went to police chowki to lodge a report. 13. p. w. 2 - hardev singh in his evidence states that on the day of the incident he was working on thresher, which was set near jagatpur and when he was going to buy bidis, he met p. w. 1 - praveen kumar on the way. he states that when they reached in gali near the house of accused persons, accused omprakash, mahendra, madi, bias, sant, kashi and gar caught p. w. 1 - praveen kumar and took him into the house by giving him beatings. it is however to be noted that in the evidence of p. w. 1 - praveen kumar, there is no mention with regard to the presence of p. w. 2 - hardev singh. 14. p. w. 2 - hardev singh submitted that thereafter he went back and when he reached near jagatpur canal, he met manjit alias babi and jaswinder and he informed them about the incident of p. w. 1 - praveen kumar meeting him and being assaulted. he stated that thereafter he along with both manjit 12 and jaswinder went to the place of occurrence. he stated that he was at a short distance from them. he stated that when they reached in the gali of house of the accused persons, the accused persons caught both the deceased as well and started giving beatings. from there, he went to lakhanpur and made a telephone call to parshotam lal that deceased persons have been detained in the house by accused persons. he states that when they reached the house of accused persons, police had already reached there. 15. p. w. 3 - chhajju ram, who resides near the house of accused persons has turned hostile. 16. it is to be noted that the place of occurrence is the house of accused persons. the versions as to why the deceased - jaswinder and manjit as well as p

. w. 1 - praveen kumar went to the house of the accused persons are varying. as per the version of p. w. 1 - praveen kumar, he had gone there in search of 13 labourers and thereafter he was caught by the accused persons since there was a dispute with regard to loan amount of rs. 50 /. 17. as per the dying declaration of deceased jaswinder, deceased jaswinder and manjit had gone there to collect grass ( fodder ). whereas as per the evidence of p. w. 2 - hardev singh, when he was going to jagatpur to buy bidis he met p. w. 1 - praveen kumar and both of them went to the gali of the accused persons. he admitted that bidi shop was not in the same gali. according to him, after p. w. 1 - praveen was assaulted by the accused persons, he went from there and on the way deceased jaswinder and manjit met him and he informed them about the incident of p. w. 1 - praveen kumar being assaulted and tied. after that, all three of them went to the gali where the house of the accused persons was situated. there the accused persons assaulted jaswinder and manjit and he went away from there. it is further to be noted that accused no. 1 - lal chand ( since deceased ) had also received injuries in 14 the said incident. the prosecution has failed to explain the same. the i. o. has admitted that he did not make investigation as to how accused no. 1 - lal chand ( since deceased ) had received injuries. it is the specific defence taken by accused no. 1 - lal chand ( since deceased ) that while he was lying on the bed in his room, two persons entered his room and one of them gave a lathi blow on his head as a result of which he started bleeding and became unconscious because of the fracture. 18. from the materials placed on record, it appears that the prosecution has not come with clean hands and has attempted to suppress the genesis of the incident. there are contradictions in the dying declaration as well as in the evidence of p. w. 1 - praveen kumar and p. w. 2 - hardev singh as to in what circumstances the deceased jaswinder and manjit went to the house of the accused persons. the

prosecution has failed to explain the injury sustained by accused no. 1 - lal chand ( since deceased ). a suggestion was also given by the 15 accused persons that the accused were having enmity with mohan lal and kewal krishna and deceased as well as p. w. 1 - praveen kumar and p. w. 2 - hardev singh were sent by them to assault accused no. 1 - lal chand ( since deceased ). no doubt that this is denied. 19. the defence of the accused appears to be that the deceased - jaswinder and manjit as well as p. w. 1 - praveen kumar and p. w. 2 - hardev singh were engaged by mohan lal and kewal krishna to take revenge on account of previous enmity. 20. as already discussed herein above, the place of occurrence is the house of accused no. 1 - lal chand ( since deceased ). out of six remaining accused, 5 are his sons. there are material contradictions as to how and in what circumstances the deceased jaswinder and manjit went to the house of the appellants. the version given in the dying declaration as well as in the evidence of p. w. 1 - praveen kumar and p. w. 2 - hardev 16 singh are totally different. the prosecution has failed to prove the injuries sustained by the accused no. 1 - lal chand ( since deceased ). it is the specific case of the accused no. 1 - lal chand ( since deceased ) that two persons had come to his house and they assaulted him with a lathi. the possibility that the accused persons enraged by the assault on accused no. 1 - lal chand ( since deceased ) whilst deprived of the power of self - control, by grave and sudden provocation, attacked the deceased - jaswinder and manjit resulting in their death cannot be ruled out. we find that the appellants are entitled to benefit of doubt in view of exception i of section 300 of the rpc. as such, we are of the considered view that the prosecution has failed to prove the case under section 302 of the rpc beyond reasonable doubt. 21. the conviction and sentence imposed upon the appellants under section 302 rpc is converted to the one under part - i of section 304 of the rpc. the appellants have already served a

17 sentence of about ten years, we, therefore, find that the sentence already undergone would serve the purpose. the bail bonds of the appellants shall stand discharged. 22. the appeal is partly allowed in the above terms.......................... j. [ b. r. gavai ]......................... j. [ m. m. sundresh ] new delhi ; january 12, 2023 18