IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Appeal No. 306 of 2002 Date of Decision 15th September, 2011 ________________________________________________________ State of Himachal Pradesh. ….Appellant Versus Shamsher Singh, son of Shri Rikhi Ram, resident of Ratoli, at present resident of Shalamu, Police Station and Tehsil Rajgrah, Distt. Sirmaur (HP) …..Respondent Criminal Appeal under Section 378(3) of the Code of Criminal Procedure. ________________________________________________________ Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Appellant: Mr. R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Additional Advocate General For the Respondents: Mr. Anil Chauhan, Advocate. __________________________________________________________________ Dev Darshan Sud, J. The State challenges the judgment passed by the learned Sessions Judge, Sirmaur at Nahan sentencing the accused for offences under Sections 304 Part-I and 308 IPC and ordering sentencing him to rigorous imprisonment for six months 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 and fine of ` 10,000/-, in case of failure to pay fine to further undergo simple imprisonment for six months for offence under Section 304, Part I, IPC and also to undergo rigorous imprisonment for three years and to pay a fine of ` 5000/- for offence under Section 308 IPC. A prayer has been made by the learned Senior Additional Advocate General that conviction under Sections 302 and 307 IPC be sustained and the accused be punished accordingly as the facts on record clearly establish the intention of the accused to commit murder. 2. Briefly the case, before adverting to the facts for consideration and rival contentions of the parties, is that on the evening of 25.5.1990 there was “Satya Narayan Katha” (recitation of the prayer/deeds of Lord Satya Narain.) in the house of Beer Singh in village Shalamu, where 20-25 persons had assembled including the accused, deceased Taman Singh and injured Surjit Singh. This Katha concluded at around 10 PM and thereafter, food was served. At around 10.30 PM the accused assaulted the deceased Taman Singh with knife and when his brother Surjit Singh intervened to rescue him, he was inflicted 7/8 knife blows. On seeing this, both Surjit Singh and Taman Singh raised an alarm, when Om Parkash and Kapil Dev rushed to the spot to intervene and rescue the victim but Kapil was also chased, assaulted and injured with knife blows. The injured was rushed to the hospital where Taman Singh was declared dead and Surjit Singh was given first aid and referred to the Indira Gandhi Medical College and hospital (IGMC hospital) at Shimla for treatment. 3 3. We need not discuss the minute details as we find that the learned Court below after assessment of the entire incident came to the conclusion that the accused was present at the spot and assaulted the deceased and also Surjit Singh with a knife. He was held guilty for offences under Sections 304 Part-I and 308 IPC. It is the adequacy of sentence and the conviction of the accused under Section 304 which we have to consider. We find from Ext.PM that Surjit had as many as eight injuries on his body, five simple and three grievous in nature viz:- 1. There was incised wound on the right shoulder which was 1½”x 1”x ½ “, size, spindal shaped, well defined margins, clearly cut, middle portion deep and thin at the terminal ends. 2. There was incised wound adjacent to injury No.1, which was 1”x1”x ½” size, well defined, clearly cut margins, fresh bleeding present. Redish coloured. 3. There was incised wound below the two injuries which was 1”x ½”x ½” size, redish coloured, clearly cut margins, redish coloured. 4. There was spindal shaped incised wound with clotted blood in it. Air was coming from it, surgical emphysema present around it. It was present near the axilla in upper part of chest measuring 1”x ½” and depth not measured. 5. There was another spindal shaped injury near to it, fat coming from it, fresh bleeding present, clear cut margins. 6. Lacerated wound on the right ring finger which was 1”x 1/3”x1/4” size, irregular margins, redish coloured. 7. Two incised wound on the medial side of right lower limbs on the thigh near knee joint, which was redish coloured. 4 8. Lacerated wound at the lower end of abdomen near inguinal region with irregular margins, redish coloured, right side, measuring ½” x ½”x ½” 4. The knife was taken into possession vide memo Ext.PK which is a switchblade knife. The post mortem report of Jaman Singh Ext.PJ shows that the deceased had sustained the following injuries: (i) 5 Cm. long spindle shaped penetrating wound present on right anterior axillary line between 2nd and 3rd ribs tracted superoposteriomedially upto depth of 6 Cm. piercing pleura and upper tobe of lung (rt.). Tract tapering towards its blind end. (ii) 2.5 cm long spindle shaped penetrating wound placed obliquely medial to right nipple between 3rd and 4th ribs, tracted superoposterolaterally upto depth of 5 cm piercing pleura and middle lobe of right lung. (iii) 2 cm long spindle shaped penetrating wound present on right posterior axillary line between 4th and 5th ribs tracted anteriomedially upto depth of 4.5 cm piercing pleura and lung (Rt.) (iv) 3 cm long spindle shaped penetrating wound present on epigastrium towards right side tracted posteriorly upto depth of 3 cm piercing right lobe of liver (Right). and he died as a result of these injuries. The question for consideration is whether the case is covered by Section 302 or 304 Part-I IPC. We find from the evidence and the nature of injuries which have been inflicted that the nature of the injuries was likely to cause death in all probability. This is a plain and evident from the nature of injuries and the part of the body 5 where they were inflicted. The punishment under Section 304 Part-I would be ten years. 5. The point for consideration is as to whether the accused came with a pre-determined mind to finish the deceased. In Thankachan vs. State of Kerala (2005)11 SCC 536, the Supreme Court holds:- “7. The question, therefore, which arises for our consideration is whether the appellant inflicted the injury with the intention of causing death of the deceased. Counsel for the State fairly submits that he is not in a position to submit on the facts of this case that the appellant intended to inflict any injury to cause the death of his son. 8. The next question is whether the infliction of injury was with the intention of causing such bodily injury as the appellant knew would likely cause the death of his son. Here again, the facts disclose that he did not have such an intention, nor can we find any intention on the part of the appellant of causing bodily injury sufficient in the ordinary course of nature to cause death. We are, therefore, of the view that the offence committed is not an offence punishable under Section 302 IPC. However, it cannot be denied that the offence would fall under Section 304 IPC because even though the appellant inflicted injury without the intention of causing death, he knew that the injury caused with a weapon like a chopper may cause such injury as is likely to cause death. We, therefore, find that the offence committed by the appellant is one which is punishable under Section 304 Part II IPC. 9. Having regard to the facts and circumstances of the case, we partly allow the appeal and set aside the judgment and order of the High Court of Kerala at Ernakulam dated 21-5-2003 in Crl. A. No. 204 of 2001 to the extent that the conviction of the appellant under Section 302 IPC is set aside and instead the appellant is found guilty of the offence under Section 304 Part II IPC. Keeping in view the facts and circumstances of the case and the manner in which the appellant behaved, a deterrent sentence is called 6 for. We accordingly sentence him to undergo ten years' rigorous imprisonment under Section 304 Part II IPC.” (at p.537) To similar effect is the judgment in Ravi Kumar vs. State of Punjab (2005)9 SCC 315 the Supreme Court holds; “21. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have origi- nated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all 7 the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'. 22. Considering the factual background it will be appropriate to convict the appellant under Section 304 Part II IPC, instead of Section 302 IPC as has been done by the trial court and affirmed by the High Court. Custodial sentence of eight years would meet the ends of justice.” (at p. 322-323) In Rajinder Singh vs. State of Bihar, (2000)4 SCC 298 the Supreme Court holds that Exception 4 to Section 300 IPC can be invoked in case (a) there is sudden fight, (b) absence of pre- meditation (c) no undue advantage or cruelty. The occasion must be sudden and not as a cloak to pre-existing malice. 6. Although an attempt has been made to establish premeditation on the part of the accused but we do not find from the evidence that such malice did in fact exist. We find that fact of scuffle was established but we do not find from the evidence that it is a cloak to disguise some from of enmity as a motive to finish the deceased. The evidence discloses a savage attack on 8 the deceased who has been inflicted multiple injuries in his chest, puncturing the lungs pleura and epigestrum which leaves no doubt that these are vital parts of body where knife blows were inflicted. We also find that PW3 Surjit Singh who intervened to rescue his brother deceased Taman Singh was also brutally assaulted by the accused who inflicted eight blows on his body. PW4 Kapil Dev who tried to rescue the deceased was also chased and injured. This is the fact scenario which requires to be determined as to whether the lenient view should not be taken while sentencing the accused. We cannot invoke some medieval principle of eye for an eye and tooth for the tooth, but nonetheless we must also assess the acts committed by the accused within the parameters of law. The attack was vicious and brutal as established from the nature of injuries which inflicted on the deceased as also injured Surjit Singh. The fact that PW4 Kapil Dev who tried to intervene was also chased by the assailant, is also proved on record. In these circumstances, the view that lenient sentence should be imposed cannot be accepted. At the same time, we also cannot find that any offence under Section 302 IPC is made out. We relied to the principles as laid down by the Supreme Court on the question of sentencing in State of M.P. vs. Babu Lal (2008)1 SCC 234 holding: “22. The next question relates to adequacy of sentence. Let us consider it on principle as well as in practice, in the light of statutory provisions. 23. Punishment is the sanction imposed on the offender for the infringement of law committed by him. Once a person is tried for commission of an offence and found guilty by a competent court, it is the duty of the court to impose on him such sentence as is prescribed by law. The 9 award of sentence is consequential on and incidental to conviction. The law does not envisage a person being convicted for an offence without a sentence being imposed therefor. 24. The object of punishment has been succinctly stated in Halsbury's Laws of England, (4th Edition; Vol.II; para 482) thus: "482. Object of punishment-The aims of punishment are now considered to be retribution, justice, deterrence, reformation and protection and modern sentencing policy reflects a combination of several or all of these aims. The retributive element is intended to show public revulsion to the offence and to punish the offender for his wrong conduct. The concept of justice as an aim of punishment means both that the punishment should fit the offence and also that like offences should receive similar punishments. An increasingly important aspect of punishment is deterrence and sentences are aimed at deterring not only the actual offender from further offences but also potential offenders from breaking the law. The importance of reformation of the offender is shown by the growing emphasis laid upon it by much modern legislation, but judicial opinion towards this particular aim is varied and rehabilitation will not usually be accorded precedence over deterrence. The main aim of punishment in judicial thought, however, is still the protection of society and the other objects frequently receive only secondary consideration when sentences are being decided" (emphasis supplied) 25. In justice-delivery system, sentencing is indeed a difficult and complex question. Every Court must be conscious and mindful of proportion between an offence committed and penalty imposed as also its impact on society in general and the victim of the crime in particular. 26. In B.G. Goswami v. Delhi Admn., (1974) 3 SCC 85, this Court stated: (SCC p.89, para 10) "10…….Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a 10 given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and re-claim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining this question. In modern civilized societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentences both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal". (emphasis supplied) (at pp. 241-242) 7. This principle has also been stated by the Supreme Court in State of Punjab Vs. Prem Sagar and others (2008)7 SCC 550 holding interalia: “8. Although a wide discretion has been conferred upon the court, the same must be exercised judiciously. It would depend upon the circumstances in which the crime has been committed and his mental state. Age of the accused is also relevant. 9. What would be the effect of the sentencing on the society is a question which has been left unanswered by the legislature. The Superior Courts have come across a large number of cases which go to show anomalies as regards the policy of sentencing. Whereas the quantum of punishment for commission of a similar type of offence varies from minimum to maximum, even where same sentence is imposed, the principles applied are found to be different. Similar discrepancies have been noticed in regard to imposition of fine. 10. In Dhananjoy Chatterjee v. State of W.B. (1994)2 SCC 220, this Court held: (SCC p. 239, para 15) 11 "15...Imposition of appropriate punishment is the manner in which the courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime..." 11. Gentela Vijayavardhan Rao v. State of A.P. (1996)6 SCC 241, following Dhananjoy Chatterjee states the principles of deterrence and retribution but the same cannot be categorized as right or wrong. So much depends upon the belief of the judges.” (at pp 553-554) 8. It is in the light of these principles we proceed to consider the question of sentencing. Adverting to the sentence we are of the view that assault is brutal not only on Taman Singh, but even Surjit Singh was assaulted repeatedly and whoever intervened in the fight. The sentence of ten years should and ought to have been imposed by the learned Sessions Judge, but considering the lapse of time, we direct that the accused should pay a fine of ` 3,00,000/- to be deposited before the learned trial Court on or before 31st December, 2012. On deposit of such amount, the amount will be disbursed to the legal heirs of Taman Singh. On failure of payment of fine amount, the accused will further undergo rigorous imprisonment for a period of three years. Appeal stands disposed of. (R.B. Misra), Judge (Dev Darshan Sud) September 15,2011 Judge (ms)