RAMESH KUMAR

STATE OF BIHAR AND ORS.

AUGUST 4, 1993

IDR. A.S. ANAND AND N.P. SlNGH, .I.I.]

Indian Penal Code, 1860: Sections 34 and 304 Pmt II-Death due to injwies caused by kicks, fist blows and dragging after tying rope around neck of deceased--T1ial Cowt convicting accused to life imp1isomnent under C Section 302/34-High Cowt modif)ing conviction to one under Section 304,

Pa1t JJ/34 and seflfencing to seven years' 1igorous in1p1isonn1ent-Whether justified-Held: "Sentence awarded by High Court was lenient-But sentence not enhanced keejJing in view the fact that accused would have already undergone the sentencc-Howeve1; fine imposed additionally to be paid. to deceased's son.

D Three of the respondents along with another person (since deceased) were tried for the murder of the appellant's father. The Sessions Judge convicted the three respondents under Section 302/34 IPC and sentenced then1 to suffer rigorous imprisonment for life. One of the E respondents was also convicted under Section 379 of the Code for stealing articles from the person of the deceased, though no separate sentence was awarded for the same.

The three respondents preferred appeal before the High Court against their conviction. The High Court, concurred with the findings of F the trial court as regards the guilt of the respondents, but found that

conviction of the respondents under section 302/34 JPC, in the facts and circumstances of the case, was not justified and accordingly altered their sentence of imprison1nent of life to sentence of seven years' rigorous imprisonment under Section 3114/Part II read with Section 34 IPC. It G maintained the conviction of one of the respondents under Section 379.

In the appeal before this Court filed by the deceased's son-the appellant, nearly after seven years of the High Court's order, it \Vas

subn1ittcd that in the facts and circumstances of the case, the High Court had erred in rnodifying the conviction of the accused fro1n ~1n offence under H Section 3112/34 to one under Seetion 304 Part 11/34 IPC, that the "'-'pon-

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RAMESH KUMAR v. STATE OFB!HAR 473

dents surprised the deceased, who was going to his paddy fields and after A relieving him of a loaded pistol, assaulted him with fist blows, slaps and kicks and then tied his neck with a rope and dragged him with premeditated intention to kill him and that lhe murder was gruesome one and since the method of hanging was used and the respondents had shared the common intention to commit the murder of the deceased, they should not only have been convicted for an offence under Section 302/34 !PC put also awarded the capital punishment of death.

On behalf of the respondents it was contended that from the established circumstances on record, intention on the part of the accused to commit the murder of the deceased was not at all discernible.

Allowing the appeal partly, this Court

HELD : 1. There is no doubt that the respondent~ along with another person (since deceased) assaulted the deceased on the fateful day. !he prosecution has successfully established on record that the three respon-

D dents committed the crime and the courts below were right in their findings to that effect. However, keeping in view the occular testimony and the medical evidence, it is difficult to hold that the accused-respondents had intended to cause the injuries on the deceased, which were sufficient in ordinary course of nature to cause to death. The facts proved by the prosecution and the established circumstances on record go to show that the case does not fall within any of the four clauses of the definition of murder contained in Section 300 IPC. (476-C, G; 477-B]

2. In causing the injuries the respondents must be attributed the knowledge that by their acts they were likely to cause the death of the F deceased, though without any intention to cause his death or to cause such bodily injury as is likely to cause death. The offence would, therefore, be 'culpable homicide' not amounting to murder' as per the third clause of Section 299 IPC punishable under Section 304 Part ll/34 IPC. Hence, the judgment of the High Court insofar as it records the conviction of the G respondents under Section 304 Part II read with Section 34 IPC is concerned does not call for any interference. (477-B-D]

3. Though the sentence of seven years' rigorous imprisonment awarded by the High Court is rather lenient and calls for an enhancement, but as the accused would have undergone the seven years' sentence almost H

SUPREME COURT REPORTS [1993] SUPP. 1 S.C.R.

A a decade ago, the substantive sentence of seven years' rigorous imprisonment is not proposed to be enhanced, and the ends of justice would he met if the three respondents are also sentenced to pay a fine of Rs. 2,500 each, in default of which they sJwuld suffer further rigorous imprisonment for six months each. The total fine of Rs.7.500 when realised should be paid B to the appellant. [477-E-F]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 41 of 1985.

From the Judgment and Order dated 28.1.1977 of the Patna High C Court in Cr!. A No. 163 of 1973.

B.B. Singh (NP) for the appellant.

U.S. Prasad for the respondent.

The Judgment of the Court was delivered by

DR. ANAND, J. On 10th October 1970, in village Change!, District Muzafferpur, Harbansh Narain Lal Das, father of the appellant herein, was murdered and respondents Ram Briksh Rai, Giani Manual and Mohinder Baitha along with Kusheshwer Rai (since deceased) were tried for the said E offence of murder under Section 302/34 !PC. The learned Additional

Sessions Judge by his judgment dated 31.3.1973 convicted the three respondents herein for the offence under section 302/34 !PC and sentenced each

one of them to suffer rigorous imprisonment for life. Giani Manda!, respondent No. 2 was also convicted for an offence under section 379 of the Code for stealing certain articles from the person of the deceased. However, no separate sentence was awarded for this offence. The respondents preferred an appeal against their conviction and sentence in the High Court of Judicature at Patna. The High Court. fter reappraisal of the entire evidence on record concurred with the findings recorded by the Trial Court as regard the guilt of the respondents. In the, words of the High Court:

From the l'crutiny of the evidence discussed above, \\'e feel no hesitation in coming to the conclusion that the prosecution story revealed by the two witnesses and corroborated by the other witnesses, namely, Mohan Jha (PW!), Yashoda Devi (PW7), and the village Chowkidar (PWlO) as well as the evidence of the Investigation Officer and the doctor is fully established beyond alt

RAMESH KUMAR v. STATE OF BIHAR [DR. ANAND, J.] 475

reasonable doubts."

However, the High Court found that the conviction of the respondents for an offence under Section 302/34 !PC, in the facts and circumstances of the case, was not justified and that the respondents could be convicted only for an offence under Section 304(Part II read with Section 34 !PC. The conviction was, by the judgment of the High Court dated 28.1..1977, accordingly altered and the sentence for imprisonment for life was substituted by a sentence of seven years rigorous imprisonment. The conviction of Giani Manda! for the offence under Section 379 was maintained but again no separate sent<; nce was awarded for the same.

Aggrieved by the judgment of the High Court, the appellant, son of

the deceased, filed a special leave petition in this Court in 1984 after nearly seven years of the order of the High Court and 81 days, even after the High Court declined to grant a certificate of fitness applied for in 1984 itself, for filing an appeal to the Supreme Court. Alongwith the special leave petition, D an application for condonation of delay was also filed on 15.1.1985. This Court by an order dated 17.1.1985, condoned the delay and granted special leave to appeal. That is how the appeal is before us.

The appellant has argued his case in person. He placed the facts of the case before us with clarity. It was submitted by him that in the facts E and circumstances of the case, the High Court erred in modifying the conviction from an offence under Section 302/34 !PC to the one under Section 304/Part 11/34 IPC. He took us through the relevant portion of the evidence on the record. According to the appellant, the respondents surprised the deceased, who was going lo his paddy fields and after F relieving him of a loaded pistol, a>Saulted him with fist blows, slaps and kicks am! then fhe neck of the deceased was tied with a rope and he was dragged with a premeditated intc.ntion to kill hin1. The appellant subn1itted that the murderwas a gruesome one and since the method of "hanging" Was used, the rcs-f, ondents ha<l shared the common intention to com1nit the murder of the deceased and they should not only. have been convicted for an offence under Section 302/34 !PC but also awarded the capital punishment of death. The respondents on the other hand have submitted through their learned counsel that from the established circumstances on the record, intention on the part of I he accused to commit the n1urdcr of the

deceased is not at all discernablc.

SUPREME COURT REPORTS [1993] SUP\'. 1 S.C.R.

A As already noticed, the occurrence took place in 1970 and the conviction by the Trial Court was recorded in 1.973 and modified by the High Court in 1977. The sentence had been reduced by the High Court fro1n that of life i1nprisonment to sevn years rigorous imprisonment, after altering the conviction from the one under Section 302/34 !PC to the one B under Section 304 part/34 !PC. The respondents had in all probability under gone their entire sentence and would have been released from custody, if not required in any other case, even prior to the filing of the special leave petition in this Court in 1984. These are some of the factors which the Court will have to take into consideration while apreciating the submissions made by the appellant. c There is no doubt that the respondents alongwith Kusheshwar Rai (since deceased) assaulted the deceased on the fateful day. The prosecution has successfully established on the record that the respondents 1 to 3 committed the crime and we agree with the findings to that effect as D recorded by both the courts below. The question, however, is whether the offence committed by the accused falls under Section 302/34 !PC as found by the Trial Court or under Section 304/Part II read with Section 34 !PC as found by the High Court.

It is found from the evidence on the record, that Ram Briksh Rai E respondent No. l is alleged to have been armed with a lathi and rope while Giani Manda!, respondent No. 2, is stated to have beeh in possession of a knife, with which he cut the belt to remove the pistol from the person of the deceased. The accused were therefore in possession of a loaded fire arm also. According lo the medical evidence of Dr. T.P. Sabi, PW12 and F the post mortem report, no injury had been caused to the deceased either with the lathi or with a knife or with the pistol. The respondents, therefore, did not use any of the weapons with which they were armed. Cause of death, according to the medical evidence, was shock and haemorrhage associated with strangulation as a result of the injury on the chest and the neck. According to the prosecution witnesses, who have been believed by G both the courts below, injuries were caused to the deceased only by kicks and fist iil9ws, Keeping in view the ocular testimony and the medical evidence, "we find it difficult to, hold that the accused respondents had intended to cause the injuries on the deceased which were sufficient in ordinary course of nature to cause his death. Had the accused shared the H common intention to cause the death of the deceased, nothing prevented

RAMESH KUMAR v. STATEOF131HAR[DR.ANAND, J.] 477

them from using the pistol. The courts have to take into consideration all A. the attendant circumstances while considering the question of offence.

The fact that neither the knife nor the lathi nor the pistol was used, even though the deceased was lonesome and was allacked by four yQung persons, would go to show that in all probabilities the respondents did. not intend to cause death of the deceased and that they wanted lo severly B assault him only. The facts proved by the prosecution and the established circumstances on the record go to show that the case does not fall within the ambit of any of the four clauses of the definition of murder contained in Section 300 !PC. However, in causing the injuries as have been noticed in the post marten report, the respondents must be attributed the knowledge that by their acts they were likely to cause the death of the deceased, though without any intention to cause his death or tc>cause such bodily injury as is likely to cause his death. The offence, in this case, would therefore be 'culpable homicide not amounting tu murder' as per the third clause of Section 299 IPC punishable under Section 304/Part Il/34 rrqand,

. therefore, the judgment of the High Court in so far as it lccords the D conviction of the respondents under, Section 304-Part II read with Section 34 IPC is. concerned, it does not call for any interference at our hands.

Coming now to the question of sentence. The High Court has awarded 7 years RI. Keeping in view the nature, of the assault and the attendant circumstances on the record, that sentence appears to us to be rather lenient and calls for an enhancement. H0wever, keeping in view the fact B that respondents 1 to 3 would have undergone the 7 years sentence almost a decade ago, we do not propose to enhance the substantive'sentence of 7 years RI but in the peculiar facts and circumstances of this case, we are oi the opinion, that the ends of justice would be met, if respondents 1 to 3 are also sentenced to pay fine. We, accordingly, enhance the sentence on each one of the three respondents from 7 years RI to 7 years RI and a fine of Rs. 2,500 each. In default of payment of fine, each of the three respondents shall suffer further RI for six months. The total fine (Rs. 7,500) when realized shall be paid to the appellant.

With the above modification of the sentence, the appeal is partly allowed.

N.P.V.

Appeal partly allowed.