Sunder Vs. Puran & Anr  INSC 302 (21 September 1990)
Beevi, M. (J) Fathima Beevi, M. (J) Pandian, S.R. (J)
1991 AIR 8 1990 SCR Supl. (1) 662 1990 SCC (4) 731 JT 1990 (4) 165 1990 SCALE
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-
Awarding punishment--Relevant factors to be taken into account--Measure of
punishment to be proportion- ate to gravity of offence.
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
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.
Disposing the appeal, this Court,
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.
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.
High CoUrt has reduced the sentence to the term of imprisonment already
undergone, and enhanced the fine.
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
APPELLATE JURISDICTION: Criminal Appeal No. 195 of 1984.
the Judgment and Order dated 30.11. 1982 of the Punjab & Haryana High Court
in Crl. Appeal No. 425 D.B./1982.
Ms. Kamlesh Datta and S.K. Sabharwal for the Appellant.
U.R. Lalit and Uma Datta for the Respondents.
Singh for the State of Haryana.
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.
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- 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:
there was no prior enmity between the parties.
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.
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
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.
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.
true that the High Court is entitled to reappraise 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.
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
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.
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.
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;
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.
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 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.
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.
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.
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 opinion that to meet the ends of justice, the
sentence has to be enhanced.
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.
appeal is disposed of as above.
Appeal disposed Of.