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PETITIONER: SHAM SUNDER

       Vs.

RESPONDENT: PURAN AND ANR.

DATE OF JUDGMENT21/09/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) PANDIAN, S.R. (J)

CITATION:  1991 AIR    8            1990 SCR  Supl. (1) 662  1990 SCC  (4) 731        JT 1990 (4)   165  1990 SCALE  (2)612

ACT:     Indian Penal Code, 1860: Sections 302, 304  Part-I--Con- viction  --Life imprisonment---Second  appeal--Converted  to one  under section 304 Part I and sentence reduced--No  par- ticular  reasons  given--Validity  of  the  conviction--Sen- tence--Whether adequate.     Sentence:  Awarding punishment--Relevant factors  to  be taken into account--Measure of punishment to be  proportion- ate to gravity of offence.

HEADNOTE:     Respondent  1 is the son of Respondent No. 2.  Including Respondent No. 1 Respondent No. 2 had 4 sons. Respondent No. 2  owned a sugarcane field adjoining the wheat field of  one P.  One  of  the sons of Respondent-2  had  burnt  sugarcane patties causing damage to the wheat crop of P, against which P  protested before the respondents. The protest was  turned down.  Shortly  thereafter  the respondent  and  the  family members  reached  the house of P. They were all  armed.  Re- spondents attacked P and he fell down. On the way to  hospi- tal  P died. Most of the accused as well as the family  mem- bers  of  P sustained injuries. On a complaint,  F.I.R.  was registered.  After investigation, Prosecution filed  a  case before the Additional Sessions Judge. Two eye-witnesses were produced  by  the prosecution. They were  relatives  of  the deceased and there was no independent witness.     The  Additional District Judge convicted the  respondent for  offences under sections 302 IPC and 323, 325 read  with 149 IPC. Both were sentenced to imprisonment for life and  a fine  Rs.500  each  under section 302 IPC.  They  were  also sentenced  to rigorous imprisonment ranging from six  months to  one year for the other offences. The other accused  were convicted for minor offences and released on probation.  The respondent appealed against the conviction and sentence. The High  Court  acquitted the respondents of the  major  charge under  section  302 IPC and recorded  the  conviction  under section  304 Part-I reducing the sentence of life  imprison- ment  to the term already undergone, and enhanced  the  sen- tence of fine. No appeal was preferred by the State.  Howev- er, the complaint filed an appeal by special leave. 663

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Disposing the appeal, this Court,     HELD  1.  There is the evidence of only  the  interested witnesses  who have the tendency to exaggerate  and  involve even  innocent persons. Most of the accused  have  sustained injuries  and in explaining the same, the  prosecution  wit- nesses have not come forward with a truthful account. In the melee  that ensued on account of the aggressive attitude  of the respondents and other members of the family who partici- pated  and used force against P and his associates.  in  all probabilities  in the exercise of right of private  defence. However,  the circumstances did not warrant the  causing  of death  and the respondents must be deemed to  have  exceeded their  right. The nature of the injuries indicate that  they were  sufficient in the ordinary course of nature  to  cause death and had been inflicted intentionally. In such  circum- stances,  the  act of the respondents squarely  fails  under section  304 Part-I, IPC. The High Court has not  given  any cogent  or  clear reasons for its  conclusion  and  whatever reason  has been stated is erroneous. It is on the basis  of the  statement  given in the course of  investigation  by  a person who was not examined in the case that the High  Court has  drawn  its conclusion. However.  the  conviction  under section 304 Part-I, IPC is maintained.     2.  The High CoUrt has reduced the sentence to the  term of  imprisonment already undergone, and enhanced  the  fine. The respondents have undergone imprisonment only for a short period  of less than six months and, in a grave  crime  like this, the sentence awarded is rather inadequate. No particu- lar  reason  has been given by the High Court  for  awarding such  sentence. The Court in fixing the punishment  for  any particular  crime should take into consideration the  nature of the offence, the circumstances in which it was committed, and  the degree of deliberation shown by the  offender.  The measure of punishment should be proportionate to the gravity of  the  offence.  The sentence imposed by  the  High  Court appears  to  be  so grossly and entirely  inadequate  as  to involve  a failure of justice. The sentence is  enhanced  to one of rigorous imprisonment for a period of five years.

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195 of 1984.     From  the  Judgment and Order dated 30.11. 1982  of  the Punjab  &  Haryana  High  Court  in  Crl.  Appeal  No.   425 D.B./1982.     O.P. Soni, Ms. Kamlesh Datta and S.K. Sabharwal for  the Appellant. 664 U.R. Lalit and Uma Datta for the Respondents. Mahabir Singh for the State of Haryana. The Judgment of the Court was delivered by     FATHIMA  BEEVI, J. The respondents Puran and Tara  Chand along  with Ved, Balwan, Dhapan, Jagdish and Lal Chand  were tried before the Additional Sessions Judge, Sonepat, for the murder  of one Partap Singh and causing injuries to  others. The  learned  Judge by judgment dated 18.5.  1972  convicted these  respondents for offences under section  302,  I.P.C., and  sections 323,325 read with 149, I.P.C. They  were  sen- tenced to undergo imprisonment for life and ordered to pay a sum  of Rs.500 each under section 302, I.P.C., R.I. for  one year  under  section 148, I.P.C., R.I. for  one  year  under section  325  and  R.I. for six months  under  section  323, I.P.C.  The other accused were convicted for the  minor  of-

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fences  and released on probation under  sections  360/36.1, Cr. P.C. The respondents appealed against the conviction and sentence.  The  High Court by the  impugned  judgment  dated 30.11. 1982 disposed of the appeal thus: "Admittedly  there was no prior enmity between the  parties. The  quarrel arose out of a very insignificant  matter  like the  burning of dry sugarcane leaves on the common  boundary of  the fields of the two parties. The  ensuing  altercation would probably have been forgotten had Partap Singh deceased not died. Even when there is an altercation arising out of a minor  incident  there is some tendency on the part  of  the prosecution  witness to exaggerate matters.  The  three-eye- witnesses  have  of course fully supported  the  prosecution case but the investigating officer recorded statement of one Paras  Ram  at the time of making the inquest  report  which gives a somewhat different version. The learned trial  judge has  himself found that the object of the unlawful  assembly was not to commit the murder of the deceased. It is precise- ly  for  this  reason that five accused  persons  have  been released on probation and only two accused, i.e., Puran  and Tara  Chand  appellants, have been convicted  under  section 302, I.P.C. We do not propose to go into the details of  the controversy  and in the peculiar circumstances of this  case convert  the conviction of Puran and Tara  Chand  appellants into  one  under section 304. Part1, 1. P.C., on  the  basis that in view of the statement made by 665 Paras  Ram at the time when the investigating  officer  made the  inquest report a somewhat different version was  given. This Paras Ram was not produced as a witness by the prosecu- tion.  Since there was no prior enmity between the  parties, we  order that sentence already undergone by Puran and  Tara Chand  appellants will meet the ends of justice.  They  are, however,  ordered to pay a fine of Rs. 12,000 each.  In  de- fault  of payment of this fine, the defaulter is ordered  to undergo rigorous imprisonment for five years. The  sentences of imprisonment imposed upon Puran and Tara Chand appellants on  other counts are also reduced to that already  undergone by  them. The total fine, if realised, shall be paid to  the next heirs of Partap Singh deceased as compensation." (emphasis supplied) The  High  Court has, by this Cryptic order,  acquitted  re- spondents of the major charge under section 302, I.P.C., and recorded their conviction under section 304 Part-I  reducing the sentence of life imprisonment to a term of  imprisonment already undergone while enhancing the sentence of fine.  The State  has  not preferred any appeal against  the  order  of acquittal  or  reduction of sentence.  The  respondents.  it appears,  have  accepted the judgment. Sham Sunder,  the  de facto complainant, however, being aggrieved approached  this Court under Article 136 of the Constitution. This Court  has granted special leave to appeal.     The High Court, exercising power under section 386,  Cr. P.C., in an appeal from a conviction may reverse the finding and  sentence  and acquit the accused or alter  the  finding maintaining  the  sentence or with or without  altering  the finding  after  the nature or the extent or the  nature  and extent  of the sentence but not so as to enhance  the  same. The  powers of the High Court in dealing with  the  evidence are  as wide as that of the trial Court. As the final  court of  facts, the High Court has also duty to examine the  evi- dence and arrive at its own conclusion on the entire materi- al on record as to the guilt or otherwise of the  appellants before it.     It is true that the High Court is entitled to reappraise

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the evidence in the case. It is also true that under Article 136.  the Supreme Court does not ordinarily  reappraise  the evidence for itself for determining whether or not the  High Court  has come to a correct conclusion on facts  but  where the High Court has completely missed 666 the  real  point  requiring determination and  has  also  on erroneous  grounds discredited the evidence and has  further failed to consider the fact that on account of long standing enmity  between the parties, there is a tendency to  involve innocent  persons  and  to exaggerate  and  lead  pre-judged evidence  in  regard to the occurrence,  the  Supreme  Court would  be justified in going into the evidence for the  pur- pose  of satisfying itself that the grave injustice has  not resulted in the case.     We  have extracted the material portion of the  judgment of  the  High Court to indicate that the  line  of  approach adopted  by  the  High Court is wholly wrong.  There  is  no discussion  of  the evidence much less  any  reasoning.  The respondents  herein  along with five others had  been  found guilty by the trial court accepting the testimony of the two eye-witnesses and other material evidence on record.     A brief resume of the facts is necessary. Lal Chand  and Tara Chand are brothers. Ved Singh, Puran, Balwan and Ishwar are  the sons of Tara Chand and Dhapan is his wife.  Jagdish is the son of Lal Chand. Partap and Bhim Singh are brothers. Sham  Sunder is the son of Bhim Singh. Roshan is the son  of Partap. Tara Chand owns sugarcane field adjoining the  wheat field  of  Partap. On 10.3. 1981 in the morning,  Ved  Singh burned  sugarcane patties causing damage to the wheat  crop. The  protest  raised by Roshan was not  heeded.  Bhim  Singh arrived  at the scene and altercation ’ensued. Partap  later raised  protest  before Tara Chand. His  grievance  was  not redressed.  At  about 6.00 P.M. Partap  raised  the  protest before Puran who also turned down the same. Shortly thereaf- ter Puran and the other members of his family including  his wife,  brother and their children all numbering about  eight reached in front of the house of Partap. They were armed and attacked Partap. The allegation is that the respondents Tara Chand and Puran had attacked Partap with jailies, first they gave jailies blows from the prong side in the chest and when Partap fell down, they gave jailies blows like lathi on  his head,  back  and  shoulder. Partap died on his  way  to  the hospital.  It is further alleged that in the course  of  the incident  Lal Chand and Jagdish caused injuries  to  Roshan; Ishwar caused injuries to Dhapan wife of Partap; Puran, Ved, Balwan  caused injuries to Sham Sunder. It has come  out  in evidence that Ved, Dhapan, Lal Chand, Puran and Ishwar  also received injuries in the course of the incident.     Sham  Sunder and Roshan are the two  eye-witnesses,  be- sides  Smt.  Dhapan the wife of deceased Partap.  There  had been  no  independent witness. Sham Sunder and  Roshan  said that they had caused 667 injuries  to the members of the opposite party  in  self-de- fence. They do not however state in what circumstances  they had to use force. The evidence does not disclose the genesis of the occurrence; how it developed and culminated in  fatal injuries to Partap. There had been no enmity between the two groups.  The  immediate provocation for the quarrel  is  the damage to the wheat crops. It is admitted that Partap raised his protest right from the morning till the arrival of Puran who was employee of the Medical College, Rohtak. The  prose- cution has, it appears, given a twist when they say that  at 6.00  P.M. Partap met Puran who turned down his request  and

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went home and after 15 minutes all the members of his family including  the  womenfolk reached the house  of  Partap  and started  the  assault. It is significant to  note  that  the women  and  even the minor children of  both  families  were present  and received injuries recording their  presence  at the place. It would therefore appear that it was a  continu- ous  transaction  and when Partap  persistently  raises  the protest  and  started abusing Puran, other  members  of  his household had come out. The quarrel had taken a serious turn and in the course of further development fatal injuries  had been caused to Partap. The plea of the respondents was  that they  did not cause any injury, that there was  a  Panchayat where  a  large crowd assembled and there  had  been  brick- batting and altercation. The plea of private defence was not specifically  set  up.  However, if there  are  material  in evidence  to indicate that the incident could not have  hap- pened  in the manner spoken to by the eye-witnesses  and  in all probability the respondents had used the force  exercis- ing the right of private defence, then accused are  entitled to the benefit thereof. Whether the respondents have in such circumstances  exceeded  their right and  are  justified  in causing death, has necessarily to be considered.     In  the absence of a full discussion of the evidence  by the  High  Court, we have been constrained to  consider  the materials on record. We have seen that there is the evidence of  only the interested witnesses who have the  tendency  to exaggerate  and involve even innocent persons. We have  seen that  most  of the accused have sustained  injuries  and  in explaining the same, the prosecution witnesses have not come forward  with  a truthful account. We are led  to  draw  the inference  that  in the melee and ensued on account  of  the aggressive  attitude  of Partap, the respondents  and  other members  of  the  family participated  and  used  the  force against  Partap and his associates in all  probabilities  in the  exercise  of  right of private  defence.  However,  the circumstances  did not warrant the causing of death and  the respondents  must be deemed to have exceeded  their-  right. The nature of the injuries indi- 668 cate  that  injuries sufficient in the  ordinary  course  of nature  to cause death had been inflicted intentionally.  In such  circumstances.,  the act of the  respondents  squarely falls  under section 304 Part-I, EP.C. While we  agree  with the conclusion arrived at by the High Court, we record  that the High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is  erro- neous.  It  is on the basis of the statement  given  in  the course of investigation by a person who was not examined  in the  case that the High Court has drawn its conclusion.  We, however,  maintain the conviction under section 304  Part-I, I.P.C.     The  High Court has reduced the sentence to the term  of imprisonment already undergone while enhancing the fine.  It is  pointed  out that the respondents  have  undergone  only imprisonment for a short period of less than six months and, in  a grave crime like this, the sentence awarded is  rather inadequate. No particular reason has been given by the  High Court  for awarding such sentence. The court in  fixing  the punishment for any particular crime should take into consid- eration  the  nature of the offence,  the  circumstances  in which it was committed- and the degree of deliberation shown by the offender. The measure of punishment should be propor- tionate to the gravity of the offence. The sentence  imposed by  the  High Court appears to be so  grossly  and  entirely inadequate  as  to involve a failure of justice. We  are  of

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opinion  that to meet the ends of justice, the sentence  has to be enhanced.     In  the  result, we maintain the conviction of  the  re- spondents  but enhance the sentence to one of  rigorous  im- prisonment  for  a  period of five  years.  The  respondents should  surrender to the bail to undergo the unexpired  por- tion  of the sentence. The fine, if paid, shall be  refunded to the respondents 1 and 2. The appeal is disposed of as above. G.N.                                         Appeal disposed Of. 669