Raj Narain vs State of U.P.

M.K. Mittal, J.—The appeal and revision have been filed against the judgment and order dated 25.8.1981 passed by Sri Ram Prakash Pandey, the then Sessions Judge, Sultanpur in S.T. No. 223 of 1981 whereby the appellant Raj Narain s/o Ganga Prasad, r/o Taranpur Majre Jagdishpur, P.S. Kurwar, district Sultanpur was found guilty under section 304 (I) IPC and was sentenced to undergo rigorous imprisonment for seven years. Coaccused Smt. Sonkali was given benefit of doubt and was acquitted under section 302/34 IPC. Informant Nageshwar Prasad being aggrieved by the judgment, also filed Criminal Revision praying that the accused Raj Narain be convicted under section 302 IPC instead of section 304 (I) IPC and his sentence be enhanced and that the coaccused Smt. Sonkali be also convicted. The cri.rJr.rJ revision as against Raj Narain was admitted vide order dated 21.10.1981, whereas, it was summarily rejected as far as acquittal of Sonkali was concerned.

The facts of the case are that Nageshwar Prasad s/o Ram Abhilakh, r/o village Taranpur Majre, P.S. Kurwar, lodged the writtenreport (Ext. Ka1) at police station Kurwar on 22.4.1981 at 5.15 p.m. alleging that there was some dispute regarding the land in front of his house and that of the accused (his cousin and nextdoor neighbour). On 22.4.1981 at about 3.00 p.m., the accused started putting mud in front of the door of the informant. At that time, the informant was not present in the house and his wife Smt. Chinta Devi objected to the act of Raj Narain. Smt. Sonkali w/o Raj Narain caught hold Smt. Chinta Devi and Raj Narain gave blows with ''Pansa'' (blunt side) of the spade. A hue and cry was raised. Mata Prasad, Pyare Teli, Sharda Prasad Pandey, Dwarika Prasad Pandey and others came and intervened and saw the incident. Smt. Chinta Devi received injuries and could not speak.

The information was sent to the informant and when the father of the informant and others were taking Smt. Chinta Devi to the policestation, the informant met them in the way and he prepared the report and lodged the same at the policestation. The distance between village and policestation Kurwar is about 6 kilometres as per the chikreport.

The chikreport (Ext. Ka3) was prepared by the constable clerk and the case was registered under section 308 IPC in the G.D. at rapid No. 11 at 5.15 p.m. Copy of G.D. is Ext. Ka4. Smt. Chinta Devi was referred to District Hospital, Sultanpur and was examined by the Medical Officer on 22.4.1981 at 7.15 p.m. She was brought by constable Chhatrabali Singh. Medical Officer found the following injuries on her person:

Lacerated wound 3 cm. x.5 cm. x scalp deep over head 75 cm. above the left ear.

Lacerated wound 2 cm. x 0.5 cm. x scalp deep over head 3 cm behind injury No. 1.

Lacerated wound 6 cm x 0.5 cm. x scalp deep over head 10 cm. above the base of nose.

Lacerated wound 3 cm x 0.5 cm x scalp deep over head 1 cm. behind injury No. 3.

Contusion 9 cm x 1 cm over lateral aspect of left upper arm 8 cm above the elbow joint.

The patient was unconscious : The general condition was low. Fresh bleeding from injuries on head was present. Injuries were fresh and were caused by some blunt weapon Xray was advised for the injuries No. 1 to 4 and No. 5 was simple. The medical report is Ext Ka14.

Injured Smt. Chinta Devi succumbed to her injuries in the hospital at 7.40 p.m the same day and a memo (Ext. Ka15) was sent to the policestation on the basis of which the case was converted to section 304 IPC.

The SubInspector Banwari Lal Pathak started investigation in the case. He interrogated the witnesses. He inspected the place of occurrence and prepared Fard of spade (Ext. Ka5). He took bloodstained and plain earth and sealed them in separate containers and prepared the Fard (Ext. Ka6). He inspected the place of occurrence and prepared the siteplan (Ext. Ka7). The Investigating Officer also prepared the inquest report (Ext. Ka.9), Nakshanash (Ext. Ka10), form 13 (Ext. Ka11) letter to Civil Surgeon (Ext. Ka12) and sample seal Ext. Ka13. The dead body was sealed and was sent for postmortem examination.

Dr. C.K. Gupta who was posted as Medical Officer in District Hospital, Sultanpur conducted the postmortem examination of Smt. Chinta Devi on 23.4.1981 at 1.00 p.m. The death had taken place as per hospital record on 22.4.1981 at 7.40 p.m. The rigor mortis was present in the lower part of the body. The doctor found the following antemortem injuries on her body:

Lacerated wound 6 cm. x.8 cm. x scalp deep on the top of head 10 cm. above the base of nose.

Lacerated wound 3 cm x.5 cm. x scalp deep over the right side head 1 crn. below and toward injury No. 1.

Lacerated wound 3.5 cm. x.5 cm. x scalp deep over the left occipital region of head 7.5 cm above and behind the left ear.

Lacerated wound 2 cm x 2 cm x scalp deep over the left occipital region of the head 3 cm below the injury No. 3. The wound was surrounded by contused swelling of 3 cm. diameter.

Contusion 10 cm x 3.5 cm. over the left side of neck just below the left ear.

Contusion 18 cm. x 7 cm over the left upper back extending up to left upper arm back side.

Contusion 6 cm x 3 cm over the lateral aspect of the left upper arm 8 cm. above the elbow joint.

On internal examination, the doctor found fracture of left parietal temporal bones under injury Nos. 1 and 2 and fracture of occipital bones in multiple pieces under injury Nos. 3 and 4. Brain was pale and surface was full of semi clotted blood. According to the postmortem report, the death was caused due to head injuries resulting in coma. The postmortem report is Ext. Ka16.

The Fard (Ext. Ka8) regarding Dhoti that was tied on the head of Smt. Chinta Devi to stop bleeding, was prepared by Investigating Officer on 30.4.1981. P.W.4 Baijnath Ram was posted as Station Officer, Kurwar on 23rd May, 1981. He took the investigation from SI Banwari Lal Pathak on account of his transfer. He interrogated the accused on 28.5.1981 and after completing the investigation, he submitted the chargesheet (Ext. Ka2) against the accused.

The case of the accused was committed to the Court of Sessions by Sri R.P. Pandey, 1st Judicial Magistrate, Sultanpur vide order dated 29.6.1981. On 28.7.1981, the accused Raj Narain was charged under section 302 IPC and 302/34 IPC. Smt. Sonkali was charged under section 302/34 IPC. They pleaded not guilty and claimed to be tried.

In support of its case, the prosecution led the evidence and examined Nageshwar (P.W.I), Durga Prasad (PW.2) and Sharda Prasad (P.W.3) as witnesses of fact and occurrence besides the above noted formal witness. The defence admitted the genuineness of the prosecution papers and, therefore, other formal witnesses including Chik/GD writer, medical officers and first Investigating Officer were not examined in the Court. Out of the three witnesses of fact, P.W.I is the informant and other two witnesses are eyewitnesses. They have supported the prosecution case.

The accused were examined under section 313 Cr. P.C. and they denied the prosecution case. According to the accused Raj Narain, the witnesses deposed on account of enmity and they were made accused on account of enmity. The accused did not adduce any oral or documentary evidence in defence.

The learned Trial Court after considering the evidence on record came to the conclusion that the prosecution witnesses were reliable and the prosecution had been able to establish the case against accused Raj Narain. However, the learned Trial Court held that quarrel had started suddenly and that it appeared that Smt. Chinta Devi might have said some thing on which Raj Narain lost his temper. He also held that it is a matter of common knowledge that ''Pansa'' of the spade is heavy and the accused must have been knowing the result of the blows given by ''Pansa'' and that Raj Narain must have been knowing that death was possible from said injuries. However, he held the accused guilty under section 304(1) IPC and consequently convicted him as aforesaid. The learned Trial Court also concluded that the prosecution had failed to establish the case against accused Sonkali and giving her benefit of doubt, acquitted her of the charge under section 302/34 IPC. Feeling aggrieved by this judgment and order, the appeal and revision have been filed

We have heard Sri Amit Chaudhary, learned Amiens Curiae for the appellant, Sri Mukesh Sharma, learned Additional Government Advocate for the State and Sri S.P. Pathak learned Counsel for the complainant and have perused the Trial Court record.

Learned Counsel for the appellant did not dispute the incident but contended that the appellant had no premeditation or intention to commit the murder and the incident was the result of sudden quarrel and on that basis he contended that the accused should have been punished under section 304 part two IPC and prayed for the sentence already undergone. Against it, learned Counsel for the State and complainant contended that the accused gave the repeated blows to the deceased with ''Pansa'' of the spade on the head, causing fracture of parietal, temporal and occipital bones and was aware that the blows would result in death and it definitely shows his intention to cause bodily injuries sufficient in ordinary course of nature to cause death of Smt. Chinta Devi.

It comes out from the evidence on record that the informant Nageshwar and the appellant Raj Narain are cousins. They had partitioned the house and the Sadar doors of the two, were towards north. The appellant was making some constructions in the Sehan towards north of the door and, in that connection, he was digging the foundation of ''Sehariya'' on the date of the incident. He was collecting the mud of the foundation in front of the door of Nageshwar. At the time of the incident, Nageshwar was not present and his wife Smt. Chinta Devi objected to the act of stocking of the mud in front of her door but the accused continued. Smt. Sonkali, his wife, challenged Smt. Chinta Devi and asked her not to come towards them, otherwise she would have to face the consequence. But Smt Chinta Devi continued with her objection. At this, Smt. Sonkali caught the neck of Smt. Chinta Devi. At this point of time, the accused Raj Narain proceeded towards Chinta Devi with spade in his hand. Smt. Sonkali left the neck of Smt. Chinta Devi and accusedappellant gave blows with ''Pansa'' of the spade on the head of Smt. Chinta Devi as a result of which she received injuries and fell down unconscious. The accused ran away leaving behind the spade. The statements of two eyewitnesses Durga Prasad (P W.2) and Sharda Prasad (P.W.3) show that the incident had taken place in the manner as alleged by the prosecution. These witnesses were present at the time of the incident and had reached at the time when there was exchange of words. The medical evidence shows that the accused gave four blows on the skull of the deceased causing grievous injuries resulting in her death. The witness Sharda, Prasad (P.W.3) has also stated that the accused even gave two blows to Smt. Chinta Devi after she fell down on the ground.

Learned Counsel for the accusedappellant has contended that the accusedappellant had no premeditation and intention to kill Smt. Chinta Devi and the incident was sudden. The accused was already possessed of the spade as he was digging the foundation. He proceeded towards the victim with spade and gave blows. Learned Counsel for the appellant has contended that the act of the accused is covered by Exception 4 to section 300 IPC. Section 300 IPC is reproduced as under:

"300. Murder Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

2ndly. If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the. person to whom the harm is caused, or

3rdly. If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or

4thly. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.

Five exceptions have been given under which culpable homicide is not murder. The relevant Exception 4 is as under:

Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

The evidence on record shows that there was altercation between two ladies perhaps heated one. The coaccused had caught the neck of Smt. Chinta Devi but when accused proceeded towards them with spade, she left the neck and the accused gave blows on the head of Smt. Chinta Devi. There was no sudden fight and there was only exchange of words. The witness Sharda Prasad (P.W.3) was put a question in crossexamination regarding (scuffle) between the appellant and Smt. Chinta Devi but the witness replied in negative. The instrument of attack i.e. ''Pansa'' was heavy. The accused being a young man of 28 years and the victim being a lady, the blows, although appear to have been given in heat of passion, landed heavily fracturing the parietal, temporal and occipital bones of the deceased.

Now it has to be seen as to whether the act of the accused is covered by section 300 IPC and he is guilty of murder or it is covered by Exception 4 to section 300 IPC and he is guilty of culpable homicide not amounting to murder. Learned Counsel for the appellant has vehemently argued that the accused had no premeditation and no intention to commit murder. According to him, the accused had no intention of causing the death of Smt. Chinta Devi nor were the injuries caused with the intention of causing such bodily injuries as the accused knew were likely to cause death. Be that as it may, but his act is covered by third Clause of section 300 IPC as he did the act with intention of causing bodily injury and the bodily injuries inflicted were sufficient in the ordinary course of nature to cause death and therefore, the act amounts to murder. Here the injuries caused by the accused were sufficient in ordinary course of nature to cause death as they resulted in fracture of bones of skull. The contention of the learned Counsel for the State that the act of the accused is covered by the third clause, is therefore, correct. Learned Counsel for the appellant contended that the incident being the result of sudden quarrel, the act is covered by Exception 4 to section 300 IPC but this contention cannot be accepted.

In the case of Rajendm Singh and others v. State of Bihar 2000 (41) ACC 696 (SC) the Full Bench of the Apex Court, while considering the scope of Exception 4 to section 300 IPC has held that necessary ingredients of Exception 4 to section 300 are: (a) a sudden fight; (b) absence of premeditation, and (c) no undue advantage or cruelty. It has also been held that the occasion must be sudden and not as a cloak for preexisting malice. It is only an unpremeditated assault committed in the heat of passion upon a sudden quarrel which would come within Exception 4 and it is necessary that all the three ingredients must be found. That case was not covered by Exception 4 to section 300 IPC.

In the case of Kikar Singh v. State of Rajasthan AIR 1993 SC 2426 = 1992 (Suppl.) ACC 115 (SC) it has been held in para 8 that in order to bring the case within Exception 4 to section 300 IPC, all the conditions enumerated therein must be satisfied (1) The act must be committed without premeditation in a sudden fight in the heat of passion; (2) upon a sudden quarrel; (3) without the offender having taken undue advantage; and (4) the accused had not acted in a cruel or unusual manner. Therefore, there must be a mutual combat on exchanging blows on each other. It has been further held that "If two men start fighting and one of them is unarmed while the other uses a deadly weapon, the one who uses such weapon must be held to have taken an undue advantage denying him the entitlement to exception 4. True the number of wounds is not the criterion, but the position of the accused and the deceased with regard to their arms used, the manner of combat must be kept in mind when applying exception 4. When the deceased was not armed but the accused was and caused injuries to the deceased with fatal results, the exception 4 engrafted to section 300 is excepted and the offences committed would be one of murder." In that case, the deceased was unarmed and did not cause any injury to the accused even following a sudden quarrel and the accused had inflicted fatal blows on the deceased, Exception 4 was not attracted.

In the case of Ghapoo Yadav and others v. State of M.P., 2003 (46) ACC 725 (SC) = 2003 (4) AIC 769 while enunciating the legal position, it has been held that 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 had not taken undue advantage or acted in a cruel or unusual manner. A ''sudden fight'' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. However, in that case there was a fight and out of seven, one injury on leg was grievous and was sufficient in the ordinary course of nature to cause death but after the injured had fallen no more injuries were caused, it was held that the accused had not acted in a cruel or unusual manner and the case was held to be covered under Exception 4 to section 300 IPC.

Learned Counsel for the appellant has cited the case of Gurdeep Singh v. jaswant Singh and others 1993 SCC (Cri) 278 In that case, it was held that the appellant had no intention to cause death of Kesar Singh but he could be attributed only with the knowledge that the injury caused by him was likely to cause death. However, there were injuries on appellant also and according to the prosecution case, that was caused by the son of the deceased while he attempted to save his father. In that case, the accused was convicted under section 304 part IIIPC by the Apex Court. However, the circumstances of the present case are different and this ruling does not help the appellant.

Learned Counsel for the appellant has also cited the case of Deepak Bhikaji Dharmale v. State of Maharashtra, 2002 (45) ACC 832 in which it has been held that there was absence of premeditation on the part of the appellant to commit the murder of the deceased and that in the sudden scuffle at the spur of the moment, the appellant took out the knife and assaulted the deceased. However, the injuries were sufficient to cause death in the ordinary course of nature. The conviction of the accused was converted from 302 IPC to 304 Part II IPC by the Apex Court. But the facts of the present case are different and this ruling also does not help the appellant and he cannot be given any benefit of Exception 4 to section 300 IPC.

Learned Counsel for the State has, thus, rightly contended that in the instant case, there was no sudden fight and physical combat between the deceased and the appellant and the accused took undue advantage and gave the repeated blows in cruel manner. He gave two blows even after the victim fell down on the ground and was helpless. The deceased was not armed. Thus the accused gave repeated blows with heavy ''Pansa'' intending to cause such injuries which were sufficient to cause death in ordinary course. Therefore, although there was no premeditation, the act of the accused does not justify the applicability of Exception 4 to section 300 IPC and is covered by third clause of section 300 IPC.

Learned Counsel for the State and the complainant have contended that the learned Trial Court has erred in convicting the appellant under section 304 (I) IPC instead of section 302 IPC. They have also contended that the learned Trial Court was aware of the fact and had given a finding that ''Pansa'' is a heavy instrument and the accused was having the knowledge about the result of his blows that the death was likely to be caused and still without giving any reason hurriedly concluded and thereby erred in convicting the appellant under section 304(1) IPC. This contention of the learned Counsel for the complainant and the learned AGA has force and is correct. Thus we come to the conclusion that the Trial Court was right while holding the accused guilty but erred in convicting him under section 304(1) IPC instead of section 302 IPC. But we cannot modify the conviction of the accusedappellant under section 302 IPC as the State has not filed any appeal against the purported acquittal of the appellant under section 302 IPC. In case of Eknath Shankarrao Mukkaivar v. State of Maharashtra 1978 (15) ACC 159 (SC) it has been held by the Hon''ble Apex Court that there is no power in the High Court to change the offence if there is no State appeal regarding the offence. Although the complainant has preferred a revision but in view of section 401(3) Cr.P.C, the finding of acquittal (under section 302 IPC) cannot be converted into one of conviction.

Now we have to consider the adequacy of sentence. 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 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 there for. 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 main aim of punishment in judicial thought, however, is still the protection of society. Penal laws, by and large, adhere to the doctrine of proportionality in prescribing sentences according to culpability of criminal conduct, The sentence ought to be commensurate with the crime.

Learned Counsel for the State and the learned Counsel for the complainant have contended that the punishment of seven years has been awarded to the appellant and same is inadequate considering the gravity of the offence committed by him. They have contended that the sentence as awarded to the appellant is liable to be enhanced in order to serve the ends of justice. Against it, learned Counsel for the accusedappellant contended that the appellant has been adequately sentenced and there is no necessity of enhancing the sentence awarded to him.

In this case, the State has not filed any appeal for enhancement of sentence under section 377(1) Cr.P.C. but the complainant has filed criminal revision and has prayed for enhancement of the sentence. If a revision is filed by the complainant for enhancement of the sentence and if the exigencies of the case require, the sentence can be enhanced. It will be useful to refer the case of Bissn Mahgoo v. State of Uttar Pradesh, 1954 Cr.L.J. 1796 (SC) where it has been held that whether the State filed a revision or the complainant moved the High Court in revision, it was competent to the High Court to go into the question of sentence and it was well within its power to enhance the sentence of transportation for life to one of death. In that matter, the High Court in revision filed by the complainant, had enhanced the sentence of transportation for life to death. In the case of Pratap v. State of U.P. and others, (1973) 3 SCC 690 it has been held in para 15 that the power under section 439 Cr.P.C. (old) is one which the High Court can exercise suo motu and all that a person filing a revision petition under that section does is to draw the Court''s attention to an illegal, improper or incorrect finding, sentence or order of a subordinate Court. The fact that in this case the brother of the deceased filed revision petition and the Government did not do so, does not affect the powers of the High Court under that section."

These two cases referred above deal with section 439 of the Code of Criminal Procedure, 1898. In the present Code of Criminal Procedure, 1973, almost parallel provision has been given under section 401 Cr.P.C. Considering the question of enhancement of sentence in a revision filed by the State or the complainant, in the case of Eknath Shankanao Mukkawar (supra), it has been held by the Hon''ble Apex Court in para 6 "we should at once remove the misgiving that the new Code of Criminal Procedure, 1973, has abolished the High Court''s power of enhancement of sentence by exercising revisional jurisdiction, suo motu. The provision for appeal against inadequacy of sentence by the State Government or the Central Government does not lead to such a conclusion."

Under section 401(4) Cr.P.C., the complainant has no right to file appeal in a State case. Therefore, he can file a revision and in the circumstance if a revision is filed for enhancement of the sentence, that can be considered.

In the facts and circumstances of the instant case, considering the nature and the gravity of the offence and the manner in which Smt. Chinta Devi was done to death by the appellant Raj Narain, we are of the considered view that the learned Trial Court has awarded inadequate sentence to the accused. Although the question of sentence is a matter of judicial discretion of the Trial Court within the statutory limits but when the sentence appears on the facts and circumstances of the case to be so manifestly inadequate as to have resulted in failure of justice, the enhancement of the sentence is justified by the Appellate Court. In the instant case, the learned Trial Court, as observed earlier has awarded inadequate sentence and we are of the opinion that the interest of justice will be served if the sentence is enhanced from seven years to life imprisonment.

Thus we come to the conclusion that the criminal appeal filed by appellant Raj Narain is liable to be dismissed, whereas the criminal revision filed by informant Nageshwar is liable to be allowed to the extent of enhancement of the sentence as mentioned above.

The Criminal Appeal filed by accused Raj Narain is hereby dismissed. Criminal Revision filed by informant Nageshwar Prasad is hereby allowed as above. Raj Narain, the accusedappellant, is held guilty and his conviction is confirmed. The sentence of seven years as awarded by the learned Trial Court to accused Raj Narain under section 304(1) IPC is enhanced to life imprisonment under this section. The appellant is under custody and shall remain in custody to serve out the sentence. Sessions Judge, Sultanpur is directed to send the modified warrant of sentence to the concerned jail authorities forthwith. The copy of the order be certified without any delay. The compliance report be sent within a month.

The record of the Trial Court be returned forthwith.