When an appellate court alters a murder conviction to culpable homicide, the sentencing exercise begins afresh — and it is rarely a formality. On 22 September 2026, a Division Bench of Justice Navin Chawla and Justice Ravinder Dudeja of the Delhi High Court in Rajes Kumar v. State, CRL.A. 949/2002 (with connected appeals), sentenced three appellants to ten years' rigorous imprisonment under Section 304 Part II of the IPC, after an earlier order dated 5 August 2026 had altered their convictions from Section 302.
The background
Three connected criminal appeals — CRL.A. 949/2002, CRL.A. 127/2003 and CRL.A. 451/2004 — arose from a fatal assault for which the appellants, Rajesh Kumar, Rahish Khan and Nasim Ahmad @ Sagar, had been convicted of murder under Section 302 IPC. By an order dated 5 August 2026, the Division Bench altered the convictions to Section 304 Part II IPC, finding the case one of culpable homicide committed with knowledge but without the intention to cause death. The matter was then listed for hearing on sentence, and the judgment of 22 September 2026 records that exercise.
The competing considerations
Mitigating
Custody already undergone ranging from about six to nearly nine years; trials and appeals stretching across two decades; family members dependent on the appellants; the reduced character of the offence itself.
Aggravating
Subsequent criminal involvement, including NDPS Act cases; prior convictions; one appellant\'s status as a proclaimed offender; the seriousness of an act that took a human life.
What the Court held
The Bench declined the invitation to treat time served as the natural terminus of the case. "The sentence must therefore reflect the gravity of the offence, while at the same time, remaining proportionate to the degree of culpability found proved," the Court observed, adding that "the period of incarceration is undoubtedly a relevant consideration, though it cannot, by itself, be treated as determinative." Each appellant was sentenced to ten years\' rigorous imprisonment — the statutory maximum for Section 304 Part II — with the benefit of set-off for time already served under Section 428 CrPC. Rahish Khan received an additional one-year sentence under Section 25 of the Arms Act, to run concurrently. The fines imposed by the trial court were left undisturbed.
Because Section 304 Part II carries a ten-year ceiling, appellants who have already served six to nine years will, with set-off and remission, face a defined and calculable balance — a very different position from the indeterminate life sentence under Section 302.
How resentencing on appeal works
Why the judgment matters
Old appeals in which convictions are altered are a steady feature of the Delhi High Court\'s criminal docket, and this decision states the sentencing methodology with unusual clarity. Two points deserve attention. First, delay and long custody create sympathy but not entitlement: an appellant with a poor post-offence record may still receive the maximum term for the altered offence. Second, conduct after the offence cuts both ways — a clean record during two decades of trial can substantially reduce the sentence, while fresh cases during that period can consume the entire benefit of the alteration. For counsel, the resentencing hearing is a distinct forum requiring its own preparation: nominal rolls, jail conduct reports, proof of family circumstances and a candid account of antecedents, because the Bench will have all of it in any event.
This article is for general information only and is not legal advice or a solicitation.
Frequently Asked Questions
What is the difference between Section 302 and Section 304 Part II IPC?
Section 302 punishes murder with death or imprisonment for life. Section 304 Part II punishes culpable homicide not amounting to murder committed with knowledge that the act is likely to cause death, but without the intention to cause death — with imprisonment up to ten years, fine, or both. Under the Bharatiya Nyaya Sanhita, 2023, the corresponding provisions are Sections 103(1) and 105.
Does time already spent in custody automatically decide the new sentence?
No. The Bench held that the period of incarceration is a relevant consideration but cannot by itself be determinative. The sentence must reflect the gravity of the offence and remain proportionate to the culpability found proved. Credit for time served is then given by way of set-off under Section 428 CrPC, now Section 468 of the BNSS.
What aggravating factors weighed with the Court?
The Court took into account the appellants' subsequent criminal involvement — including cases under the NDPS Act and the Arms Act — prior convictions, and the fact that one appellant had been a proclaimed offender. These offset the mitigating circumstances of prolonged trials spanning about two decades, custody already undergone of roughly six to nine years, and family dependence.
Is a hearing on sentence mandatory after a conviction is altered?
Yes. The requirement of a separate hearing on sentence flows from Section 235(2) CrPC (Section 258(2) BNSS). When an appellate court alters the conviction to a lesser offence, it must hear the parties on the appropriate sentence for the altered offence, weighing aggravating and mitigating circumstances — exactly the exercise the Division Bench undertook here.