28 September 1955
Supreme Court


Case number: Appeal Criminal 88 of 1954






DATE OF JUDGMENT: 28/09/1955


CITATION:  1955 AIR  778            1955 SCR  (2) 583

ACT:   Sentence,  Enhancement  of-By  the  High  Court-Principles applicable thereto.

HEADNOTE:   A question of sentence is a matter of discretion and it is well   settled  that  when  discretion  has  been   properly exercised along accepted judicial lines, an appellate  court should not interfere to  the detriment of an accused  person except  for very strong reasons which must be  disclosed  on the face of the judgment.  In   a   matter  of  enhancement  there     should   not be interference  when the sentence passed  imposes  substantial punishment.   Interference  is only called for  when  it  is manifestly inadequate.  In the circumstances and bearing all the considerations  of the present case in mind it was impossible to hold that  the Sessions Judge did not impose a substantial sentence. The  Supreme  Court set aside the sentence  imposed  by  the Court and restored that of the Sessions Judge as no adequate reason  bad been assigned by the High Court for  considering the  sentence  passed by the Sessions  Judge  as  manifestly inadequate. Dalip  Singh v. State of Punjab ([1954] S.C.R. 145) and  Nar Singh  v.  State  of Uttar Pradesh ([1956]  1  S.C.R.  238), referred to.

JUDGMENT:    CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  88 of 1954. Appeal  by Special Leave from the Judgment and  Order  dated the  7th  January,  1954  of the  Allahabad  High  Court  in Criminal  Appeal  No. 377 of 1953  connected  with  Criminal Revision  No.  461 of 1953 arising out of the  Judgment  and Order  dated  the,  17th  November, 1952  of  the  Court  of Additional Sessions Judge at Meerut in Session Trial No. 113 of 1952. B.B. Tawakley, (K.  P. Gupta, with him), for the appellant. K.B. Asthana and C. P. Lal, for the respondent.



1955.  September 28.  The Judgment of the Court was delivered by BOSE J.-The only. question here is about sen. tence. 74 584 The  appellant Bed Raj and another, Sri Chand, were  jointly charged  with the murder of one Pheru.  The  Sessions  Judge convicted Bed Raj under section 304, Indian Penal Code,  and sentenced  him  to three years’ rigorous  imprisonment.   He acquitted Sri Chand.                                 I   Bed  Raj  appealed to the High, Court and that  Court,  on admitting  the  appeal  for hearing, issued  notice  to  the appellant  to  show  cause why the sentence  should  not  be enhanced.  The appeal and the revision were heard  together. The  appeal  was dismissed and the High Court  enhanced  the sentence to ten years.  Now,  though  no  limitation has been placed  on  the  High Court’s  power to enhance it is nevertheless a judicial  act and,  like  all  judicial  acts  involving  an  exercise  of discretion,  must  be exercised along, well  known  judicial lines.   The only question before us is whether those  lines have been observed in the present case.   The  facts that have been found by the Sessions Judge  and accepted  by the High Court are to be found in  the  opening paragraph  of the learned Sessions Judge’s  judgment.   They are as follows:   "Roop Chand, the son of Bed Raj accused, was removing  the dung.  of the bullocks of Pheru deceased from an open  space near  his  cattle  shed.  Pheru protested to,  the  boy  and turned  down the basket in which the boy had put  the  dung. The two accused who are brothers then came to the scene from their  own  cattle shed which was near by and there  was  an exchange of abuses between them and Pheru.  The accused  Sri Chand  then  caught hold of Pheru by the waist and  Bed  Raj accused  took out a knife and stabbed him in 3 or 4  places. The knife was then left sticking in the neck of the deceased and the accused ran away". The  assault occurred about 8 o’clock on the morning of  the 23rd  February 1952.  Pheru was removed to the hospital  and the  Medical Officer Dr. Fateh Singh examined him and  found that  he was suffering from shock.  He found three  injuries on his person: 585 all "simple".  He gave the following description of them: right side lower part. (2) Incised wound: 1 " x 1/3" X1/3"    right    deltoid region frontal and lower part   above downward. (3) Incised wound   1/2" X 1/6" X 1/4"Epigastric region". He said- "When Pheru was admitted in the hospital he was under  shock but  his  condition was not dangerous. When  Pheru  came  he could speak.  He was not unconscious.  As he was under shock no  report was made for recording his dying  declaration.  I cannot  give the definite cause of death.  I cannot tell  if sucH  an InjurY can cause death.  There was  no  Haemorrhage from  Pheru’s  neck  after  his  arrival  in  my   hospital. Speaking:of the inJurieis, the doctor said-   "Injuries  2  and  3 on the person  of  Pheru  which  were incised  wounds were not punctured.  It was not possible  to inflict  them from a sharp pointed weapon". The  appellant was also examined by the doctor and a  slight simple  injury,  which could have; been caused by  a  simple blunt weapon, was discovered.  This indicates that there was



a  scuffle between the appellant and the deceased, in  which the  appellant  was hit over the nose and, up  to  a  point, bears  out  what the appellant says in his  defence,  namely that  Pheru  was beating the appellant’s son Rup  Chand;  he went  there and tried to extricate Rup Chand; Pheru  started beating him (the appellant) and he, the appellant,  received a flat blow on the nose.  The  depth of the injury on Pheru’s neck was I of an  inch. In this connection the doctor says-   "A  knife  can penetrate 1 1/2 or 2 inches in  a  case  of deliberate stabbing".  Pheru died about 12-45 A.M. on the 24th February 1952, that is  to  say, about 16 or 17 hours after  the  assault.   The post-mortem  was  conducted  by another doctor,  Dr.  J.  K. Dwivedi.  Describing the injury on the neck-the only one  we need  consider  as the other two were  slight-he  said  that clotted  blood  was  present all round injury  No,  1,  and, that-- 586 "the:right side dome of pleura is punctured under injury No. 1  and  clotted blood present all round it.  Upper  lobe  of right  lung  (appex) is punctured for 1/4" X  1/4"  X  1/2". Clotted  blood present over the lung surface all  round  the punctured  area.  A branch of the external jugular vein  was divided in right side neck under injury No. I. Death was due to shock, and haemorrhage as a result of injury to neck". In cross-examination he said-   "It  was  possible and impossible also that  the  bleeding could  be  stopped.  Such injury as injury No.  I  are  more likely  to cause death". After reviewing the  evidence  ’the learned Sessions Judge held-   "It  is  evident  that the whole scene  took  just  a  few moments.  Both of the accused must have been in a moment  of heat and before either of them could think of doing any act, the whole thing was over........ That the injuries with  the knife  were  likely to cause death is clear  but  they  were caused  at a time when the parties were in a heat and  there was a sudden fight and no room for premeditation".  Because  of  this, and seeing that there was no  reason  to infer  pre-concert, he acquitted the other accused,  and  by reason of those circumstances he considered that three years would  be sufficient punishment and sentenced the  appellant accordingly.  This was on 17-11-1952. The  appellant filed an appeal to the High Court on  1.8-12- 1952  and that Court thereupon issued notice to him to  show cause  why the sentence I should not be enhanced.  The  High Court directed enhancement on 7-1-1954.   On  the same day the State Government ordered the  release of  the appellant on probation, under section 2 of the  U.P. Prisoners’ Release on Probation Act, 1938, for the full term of  the sentence imposed by the Sessions Court.  We are  not concerned  with  the State Government’s order except  in  so far’  as it indicates the view that that Government took  of the  antecedents  and conduct in prison  of  the  appellant, matters that are also relevant for consideration by a Court 587 when  determining a, question of sentence-’ a  prisoner  can only  be released on probation under that Act if  the  State Government is satisfied   "from  his antecedents and his conduct in the prison  that he  is  likely to abstain from crime and  lead  a  peaceable life, if he is released from prison".  These  facts were not known to the High Court when it  made its  order of enhancement’ but it is a matter  relevant  for our consideration now that the appeal is before us.



Now the High Court accept the findings of the Sessions Judge about  the  circumstances in which the offence  took  place. They  agree  that the attack was not premeditated  and  that there was a sudden quarrel and that the blows were inflicted in  the  heat  of passion,.  They also say  that  there  was counter-abuse   and   they  notice  the  abrasion   on   the appellant’s nose.  Despite this they hold-that’   "it  is  possible  that this injury was  received  by  the appellant  in  the  attempt of the deceased  to  resist  the attack  made  by  the appellant.   There  was  therefore  no fight’.  This  is a very half-hearted finding and ignores  the  fact that the benefit of all doubts must be given to the accused. If it was only "possible" that the injury was due to Pheru’s attempt to ward off an attack by the appellant, then it must be equally "possible" that it was received in the course  of a,  scuffle.   The  appellant very definitely  says  in  his examination  that there was a fight and the abrasion on  his nose  which  the doctor says was caused by a  blunt  weapon, bears  out his version that Pheru struck him with his  fist. The circumstances also indicate that there must have been  a scuffle.   Why  else should it be necessary for  the  second accused  to  come  and hold him down  by  the  waist?   When villagers  or any man for that matter, come to  blows  after hot  words  and  an interchange of abuse,  there  is  nearly always resistance to the initial attack.  Very rarely does a man "turn the other cheek".  It must also be remembered that the incident started with the use of force by Pheru.  It was he who took hold of the basket of cow dung and 588 overturned it.  That occasioned the quarrel, and the finding is that there was abuse and counter-abuse.  It was then that the second accused rushed in and caught Pheru by the  waist. That  accused  was acquitted because there  was  nothing  to suggest  that  that  was  done in  aid  of  the  appellant’s intention  to-assault  Pheru  and he -was  absolved  of  all intention to assault on his own account; and the finding  is that even the appellant had no such intention till the  last moment.   If that was the case, then why should  the  second accused  rush in and hold Pheru by the waist?  If he had  no intention  to assault on his own account and none to  assist the  appellant  in his assault, the  only  other  reasonable conclusion  is that he tried to stop a fight.  It  would  be fair in the circumstances to reach that conclusion, for  the accused is as much entitled to the benefit of any doubt when a  co-accused  is acquitted as in any other  case.   In  any case,  it  was incumbent on the High Court to reach  a  more definite  finding  than the one given  before  -deciding  to enhance the sentence.   The only reason that the learned Judges give is that Pheru was  unarmed  and  as the attack was made with  a  knife  it cannot be said that the appellant did not act in a cruel  or unusual manner.  Nevertheless, they uphold the finding  that the offence falls under section 304, Indian Penal Code,  and not under section 302.   A question of a sentence is a matter of discretion and  it is  well  settled  that when discretion  has  been  properly exercised along accepted judicial lines, an appellate  court should  not interfere to the detriment of an accused  person except  for very strong reasons which must be  disclosed  on the  face of the judgment; see for example the  observations in Dalip Singh v. State of Punjab(1) and Nar Singh v.  State of  Uttar  Pradesh (2).  In a matter  of  enhancement  there should not be interference when the sentence passed  imposes substantial  punishment.   Interference is only  called  for



when  it  is manifestly inadequate.  In our  opinion,  these principles have not been observed.  It is (1)  [1954] S.C.R. 145, 156. (2)  [1955] 1 S.C.R. 238, 241, 589 impossible  to hold in’the circumstances described that  the Sessions  Judge did not impose a substantial, sentence,  and no  adequate  reason has been assigned by the  learned  High Court  Judges  for  considering  the  sentence,   manifestly inadequate.    In   the  circumstances,  bearing   all   the considerations of this case in mind, we are of opinion  that the  appeal (which is limited to the question  of  sentence) should be allowed and that the sentence imposed by the  High Court  should  be set aside and that of the  Sessions  Court restored.  Ordered accordingly.