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
BB Tawakley K P Gupta with him for the appellant
KB Asthana and C P Lal for the respondent
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 13 X13 right deltoid region frontal and lower part above downward
3 Incised wound 12 X 16 X 14Epigastric 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
Speakingof 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 12 or 2 inches in a case of deliberate stabbing
Pheru died about 12 45 AM 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 theright 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 14 X 14 X 12
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 18 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 UP 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 vs State of Punjab1 and Nar Singh vs 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   156
2   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


Summary:
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 vs State of Punjab 1954 SCR 145 and Nar Singh vs State of Uttar Pradesh 1956 1 SCR 238 referred to