Gujarat High Court
State Of Gujarat vs Puriya @ Parsottam Natvarbhai ... on 20 September, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari, A.J. Shastri
R/CR.A/773/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL (FOR ENHANCEMENT) NO. 773 of 2000
With
CRIMINAL APPEAL NO. 774 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
===============================================================
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of India
or any order made thereunder ?
================================================================
STATE OF GUJARAT....Appellant(s)
Versus
PURIYA @ PARSOTTAM NATVARBHAI BISOI....Opponent(s)/Respondent(s)
================================================================
Appearance: (In Both Appeals)
MR JK SHAH, ADDL.PUBLIC PROSECUTOR for the Appellant(s)
MR UTPAL M PANCHAL, ADVOCATE for the Opponent(s)/Respondent(s)
================================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 20/09/2017
COMMON ORAL JUDGMENT
(PER : HONOURABLE SMT. JUSTICE ABHILASHA KUMARI) Page 1 of 51 HC-NIC Page 1 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT
1. Both these criminal appeals have been preferred by the appellantState of Gujarat. Criminal Appeal No.773/2000 has been preferred under Section377 of the Code of Criminal Procedure, 1973, for enhancement of the sentence awarded to respondent No.4, Puriya alias Parsottam Natvarbhai Bisoi under Section304 PartII of the Indian Penal Code, 1860 ("IPC", for short), by the Court of learned Additional Sessions Judge, Surat, in Sessions Case No.35/1998. Criminal Appeal No.774/2000 has been filed under Section378(1) (3) of the Code of Criminal Procedure, 1973, challenging the very same judgment and order of acquittal dated 16.06.2000, passed by the learned Additional Sessions Judge, Surat, in Sessions Case No.35/1998, whereby original accused No.1Munna Panda Bavari Panda, original accused No.2Sania Bisoi Natvar Bisoi, original accused No.3Babubhai Nathubhai Pradhan and original accused No.4Puriya alias Parsottam Natvarbhai Bisoi have been acquitted of the offence under Section302 of the IPC. The judgment under challenge being the same, both the appeals have been heard together and are being decided by a common judgment.
Page 2 of 51
HC-NIC Page 2 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
2. The case of the prosecution is as follows. 2.1 On 10.06.1997, between 10.30 p.m. to 11.00 p.m., Vijay Banvasi Sahu, who is the complainant as also the injured witness, was working on the upperstorey of a factory known as "Aashish Textiles". His brother Santosh (the deceased) was operating a machine on the ground floor of the same factory when the complainant heard shouts like "Santosh ko le jate hai" (They are taking Santosh). The complainant rushed downstairs and saw the three brothers, Puriya alias Parsottam Natvarbhai Bisoi, accused No.4 (hereinafter referred to as "Puriya"), Juriya Bisoi (who has been shown as absconding accused in the chargesheet and has not been tried along with the present accused) and Sania Bisoi, accused No.2, dragging the deceased outside. Puriya had a sword in his hand, Juriya also had a sword in his hand and Sania had a piece of wood in his hand. The three brothers were accompanied by four other persons from their village. Accused No.4 gave a blow with the sword on the head of the deceased. Juriya also hit the deceased with the sword on his head. In addition, Juriya gave a sword blow on the left shoulder of the deceased and the other persons started Page 3 of 51 HC-NIC Page 3 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT beating the deceased with pieces of wood. The deceased fell down and the complainant rushed to his aid. Accused No.4 and the absconding accused gave sword blows to the complainant on his head and left hand. When the complainant went to rescue his brother, the accused persons fled away. After some time Suraj, another brother of the deceased and the complainant, came there. The complainant informed Suraj regarding the incident and they both went out and saw that the deceased was lying dead, on the road. The complainant then lodged a complaint at Katargam Police Station (Exhibit44). Pursuant thereto, the Investigating Officer carried out the Inquest Panchnama of the deceased and sent the body to the Civil Hospital for the Post Mortem. The Panchnama of the place of incident was also drawn. The arrest Panchnamas of the accused persons were made and the accused persons (except Juriya) were arrested from different places. The sword was recovered from the hut of the accused. There was also a recovery of the shirt of accused No.2 which contained bloodstains. The recovery Panchnamas of the sword and shirt were made and the said articles were sent for examination to the Forensic Science Page 4 of 51 HC-NIC Page 4 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT Laboratory. The statements of the concerned persons were recorded and after the investigation was over, the chargesheet against the accused persons was filed in the Court of the learned Judicial Magistrate, First Class, who committed the case to the Sessions Court, for trial.
2.2 Nineteen witnesses were examined by the prosecution and twentyeight documents were exhibited. The charge under Sections302, 324, 143, 147, 148 and 114 of the IPC, was framed against the accused persons. After appreciation of the oral and documentary evidence, the Trial Court convicted accused No.4, Puriya, under Section304 PartII and 324 of the IPC and sentenced him to five years rigorous imprisonment and fine of Rs.500/, in default of which he was to undergo two months simple imprisonment. The learned Judge acquitted accused No.4 for the offence under Section302 of the IPC. Accused Nos.1, 2 and 3 were acquitted of the charge under Section302 of the IPC by giving them the benefit of doubt. Aggrieved by the above judgment and order, the State Government is before this Court.
Page 5 of 51
HC-NIC Page 5 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
3. Mr.J.K.Shah, learned Additional Public Prosecutor has submitted that the judgment and order of sentence passed by the learned Judge is highly disproportionate and inadequate, looking to the nature of the offence committed by the accused persons and the manner in which it was committed, therefore, the sentence in all cases is required to be enhanced.
3.1 That the learned Judge ought to have looked to the medical evidence, which makes it clear that the deceased had as many as twentyone injuries upon his person, which were caused by deadly weapons such as a sword, and were sufficient, in the natural course, to cause the death of the deceased. Under the circumstances, the learned Judge committed an error by imposing lesser sentence upon accused No.4, Puriya and acquitting the other accused. It is further submitted that the deposition of the complainant is corroborated by the evidence of PW19, Satishbhai Mogabhai Nayak, the Executive Magistrate which is at Exhibit113. He recorded the previous statement of the complainant. The evidence of the complainant is also supported by medical evidence. The FSL Report indicates that blood Page 6 of 51 HC-NIC Page 6 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT of 'O' Group was found on the muddamal sword and the clothes recovered from accused No.2. Looking to the evidence on record the Trial Court has committed an error in acquitting the accused persons for the offence under Section302 of the IPC. 3.2 It is next submitted that the intention of the accused persons was to cause the death of the deceased which is crystal clear, as twentyone injuries were found on his body. Therefore, by imposing lesser punishment on accused No.4 under Section304 PartII of the IPC, a miscarriage of justice has occasioned. 3.3 The learned Additional Public Prosecutor has laid great emphasis on the aspect that the Trial Court has not given any cogent reasons in support of its conclusion of convicting accused No.4 under Section 304 PartII of the IPC and not under 302. No process of reasoning is discernible in the judgment, justifying the award of punishment lesser than life imprisonment, looking to the offence and the number of injuries with the sword repeatedly inflicted by accused No.4 on the back, head and hand of the deceased. Under the circumstances, it is submitted Page 7 of 51 HC-NIC Page 7 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT that the conviction of accused No.4 under Section304 PartII IPC may be set aside and he may be convicted under Section302 of the IPC and sentenced to life imprisonment.
3.4 In respect of the other accused persons, it is submitted that the evidence on record reveals that there were three to four persons who participated in the incident. The name of Sania, accused No.2, has surfaced in the evidence, hence, his acquittal is not justified in law.
3.5 In support of the above submissions, learned Additional Public Prosecutor has placed reliance upon the following judgments :
(i) Devendra Nath Srivastava Vs. State of Uttar Pradesh, reported in (2017) 5 SCC 769.
(ii) Raj Bala Vs. State of Haryana and others, reported in (2016) 1 SCC 463.
(iii) Ravinder Singh Vs. State of Haryana and others, reported in (2015) 11 SCC 588.
(iv) Sagar Vs. State of Haryana, reported in (2014) 15 SCC 558.
4. On the other hand, Mr.Utpal M. Panchal, learned Page 8 of 51 HC-NIC Page 8 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT advocate for the respondentsoriginal accused has submitted that there is no legal flaw, illegality or perversity in the judgment under challenge. The Trial Court has properly appreciated the evidence on record and has considered all relevant and material aspects of the matter. The FIR has been lodged on the next day, after a considerable delay for which there is no explanation, whatsoever. The presence of some of the accused is doubtful and though the complainant states that he has seen the accused, it transpires that he has only stated that there were three or four other persons with accused Nos.4, 2 and the absconding accused, but has not named them in the complaint. They have been implicated later on without any evidence, therefore, such vague allegations, unsupported by evidence would not be proper and the Trial Court has rightly acquitted accused Nos.1, 2 and 3. 4.1 It is submitted that the Trial Court has come to the correct conclusion that the head injury on the deceased was a simple one, therefore, the conviction has rightly been recorded under Sections324 and 304 PartII of the IPC. It is submitted that the Page 9 of 51 HC-NIC Page 9 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT conclusion of the Trial Court that the case does not fall under Section300 of the IPC is just and proper and as accused No.4 had no intention of killing the deceased, his conviction under Section304 PartII of the IPC and sentence of five years imprisonment is in accordance with law.
4.2 On the basis of the above submissions, it is urged that the Court may not interfere with the judgment and order under challenge.
5. The above rival submissions are required to be appreciated in the backdrop of the oral and documentary evidence led before the Trial Court, the important and relevant features of which may be briefly adverted to.
6. The complainant and injured witness, Vijay Sahu, is the brother of the deceased and has been examined as PW7 at Exhibit43. He narrates that on the day of the incident, when he was working between 10.30 p.m. and 11.00 p.m., the three brothers, namely, accused No.2, accused No.4 and the absconding accused, dragged the deceased outside from the place where he was Page 10 of 51 HC-NIC Page 10 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT working on his machine and beat him to death. When he came to know of this incident, he ran to the rescue of his brother and saw that the three accused had dragged the deceased outside. Juriya had a sword in his hand, Puriya also had a sword and Sania had a piece of wood in his hand. All the three accused were shouting "Maro maro" and were hitting the deceased. When the complainant tried to intervene, he was also given sword blows, first by Puriya on his shoulder and then by Juriya, on his head. The complainant fell down after which Sania hit him with a piece of wood. The complainant states that Puriya, Sania and their brother Juriya, have killed the deceased. This witness further states that he was also beaten by the accused persons and ran away to save his life. Juriya followed him to the neighbouring factory where he fell to the ground. He started asking for water. Thereafter, he became unconscious. After some time somebody gave him water. He further states that he gained and lost consciousness frequently, within minutes. He was then taken to the hospital in an unconscious state where he regained consciousness after fifteen minutes. He saw that Police personnel were present there. They Page 11 of 51 HC-NIC Page 11 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT questioned him regarding the incident. He later gave the complaint, which was read over to him, after which he signed it. He was hospitalized and remained in hospital for two days.
7. In crossexamination, this witness states that when he was taken to the hospital, he was conscious sometimes and at other times he slipped into unconsciousness. He is not aware of the time when he was taken to "Maskati Hospital" for treatment after the incident. While the complaint was being recorded, he lost consciousness thrice. This witness denies that he stated before the Police that accused No.1Munna Panda is innocent and has been falsely implicated. He further states that when his previous statement was being recorded by the Executive Magistrate, he was conscious for some time and lost consciousness sometimes. He admits that before the Executive Magistrate he has not taken the names of Sania Bisoi, Juriya Bisoi, Munna Panda and Babu Pradhan. This witness further admits, in crossexamination, that he recognized accused No.4, Puriya. As it was dark when the incident took place, he could not recognize any other accused persons. He denies any previous enmity Page 12 of 51 HC-NIC Page 12 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT against the accused persons. He denies that the accused persons are headstrong gangsters or that he and his brother had a longstanding quarrel with them.
8. In the complaint at Exhibit44, Vijay Sahu has not named accused Nos.1 and 3 at all. He has named accused No.4 and attributed a sword to him and a piece of wood to accused No.2. Juriya, the absconding accused, is stated to have been armed with a sword. He has stated that when he heard shouts of "Maro maro", he went down to the place where the deceased was working and found his brother fallen on the ground. Puriya and Juriya then attacked him on his head and left shoulder. When this witness intervened, they attacked him and he ran away to the neighbouring factory to save his life. Thereafter, all the accused persons went away. Though, in the complaint it is stated that Sania had a piece of wood in his hand, however, in his deposition, PW7 Vijay Sahu has attributed only a kick to the said accused.
9. PW8, Suraj Banvasi Sahu, is also the brother of the deceased and the complainant. He has been examined at Exhibit49. Nothing much turns upon his deposition, Page 13 of 51 HC-NIC Page 13 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT as he is not an eyewitness of the incident. He states that on the date and time of the incident he was at his house. He states that the deceased used to return home everyday between 9.00 p.m. to 9.15 p.m. On the day of the incident he did not return upto 11.00 p.m. This witness was waiting for him, and went to the factory to look for his brother. He saw that deceased was lying outside the factory. He shook the deceased and tried to give him water, but found that he was dead. There were about fifteen to twenty injuries inflicted with a sword and stick on the body of the deceased, who was bleeding. When he tried to revive the deceased, his brother Vijay came there, after about ten minutes. He was also wounded on his head, legs and shoulder and had been beaten with a sword and stick. Blood was oozing out of his wounds. The complainant told this witness to give the deceased water. This witness informed the complainant that the deceased had died. He states that he asked the complainant as to who had killed the deceased. The complainant replied that Puriya Bisoi, Juriya Bisoi and Sania Bisoi had killed their brother. This witness states that thereafter, the injured witness was taken Page 14 of 51 HC-NIC Page 14 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT to "Maskati Hospital" and was admitted there for three days.
10. In crossexamination, this witness admits that he has not seen any of the accused persons hit either the deceased or the injured witness. He further admits that he does not know from which weapons the deceased and injured witness received injuries. In light of this admission, his statement in the examinationin chief that the deceased and the injured witness had received injuries with a sword and a piece of wood, would not retain much relevance, being hearsay evidence.
11. It further emerges from the crossexamination of this witness that the complainant was frequently flitting between consciousness and unconsciousness when he was giving the complaint. This witness was constantly trying to revive the complainant.
12. PWs9, 10, 11 and 14 are coworkers of the deceased, but none of these witnesses have supported the case of the prosecution and have turned hostile.
13. Dr.Ishvarlal Jekishandas Parekh, who treated the Page 15 of 51 HC-NIC Page 15 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT injured witness and to whom the injured witness gave the history of the incident, has been examined as PW 12 at Exhibit59. He describes four injuries received by the injured witness. (i) The first injury is an incised wound over the right side front parietal region, admeasuring 6 cm x 1/2 cm x 1/2 cm. There was also bloodclot on the wound. (ii) The second injury was an incised wound over the temporal region, 5 cm away from the ear, admeasuring 1.5 cm x 1/2 cm x 1/2 cm. A bloodclot had formed over it. (iii) The third injury was an incised wound over the scapular region behind the shoulder, admeasuring 4 cm x 1/2 cm x 1/2 cm and the bone could be seen. (iv) The fourth injury was a skin deep small incised wound over the middle finger of the left hand, admeasuring 1/3 cm x 1/3 cm x 1/3 cm. Blood had clotted over it.
14. Dr.Ishvarlal Parekh states that said injuries were as described in the Inquiry Certificate at Exhibit60 and it can be said that they have been inflicted on a vital part of the body. In cross examination this witness states that injuries Nos.3 and 4 are simple in nature. He further states that the injuries described in the Injury Certificate can be Page 16 of 51 HC-NIC Page 16 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT inflicted by a sword.
15. PW13 is Dr.Iliyas Ishaqmohammad, whose deposition is at Exhibit61. He is the doctor who has performed the postmortem on the body of the deceased. He describes the injuries sustained by the deceased, which are as per the description contained in Column 7 of the Postmortem Report at Exhibit62. There are seventeen external injuries and four internal injuries. In all, twentyone injuries were found on the body of the deceased. Out of these seventeen injuries, four were incise, stab and chop wounds, on a vital part of the body such as the stomach and navel of the deceased, apart from the injury on the shoulder and arm. Out of the seventeen injuries, most of the injuries were serious in nature. The cause of death, as per the postmortem report, is "shock as a result of multiple chop wounds and stab injuries over the body". The certificate of the cause of death is at Exhibit
63.
16. PW15, Vasant Namdev Sevale, is the Investigating Officer, who has been examined at Exhibit75. He has registered the FIR and submitted the chargesheet Page 17 of 51 HC-NIC Page 17 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT against the accused persons after the investigation was complete. He has sent the muddamal articles for forensic examination. In crossexamination, this witness states that the complainant has stated that about two years prior to the incident there was a quarrel between the complainant, his brother and the present accused persons in their native place, on account of banana trees. He further states that it is true that the complainant has not stated in the complaint that accused No.2 has hit his brother, the deceased. From the above it appears that insofar as this aspect is concerned, the complainant has made an improvement by stating that accused No.2, Sania Bisoi had hit the deceased.
17. The Serological Report is at Exhibit77. The vest, underwear and pant of the deceased were found to contain blood of "O" Group, which was also found to be present on the shirt of accused No.2
18. The Arrest Panchnama of accused No.4, Puriya, is at Exhibit86. Though the Panch witnesses have turned hostile, the Investigating Officer has supported this Page 18 of 51 HC-NIC Page 18 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT Panchnama.
19. PW18, Harshadray Purushottam Pandya, is the second Investigating Officer, who has recovered the bloodstained shirt of accused No.2 and the sword and piece of wood (used as weapons of offence) from the hut of the accused. The Panchnama of the arrest of accused Nos.1 to 3 is at Exhibit86.
20. The Executive Magistrate, who has recorded the previous statement of the injured witness has been examined as PW19 at Exhibit113. He states that when he went to the hospital he found the injured witness to be conscious and introduced himself. He then took the statement of the injured witness, who told him his name, age, address and other details. On asking the injured witness what had happened, he stated that there was a fight, in which he got injured on the head. On asking him how the incident took place, the injured witness replied that he and his brother, the deceased, were working in the textile factory at 10.00 to 10.30 p.m., Puriya Bisoi and seven to eight other persons came there and attacked the deceased with a sword and killed him. When he came down to save his Page 19 of 51 HC-NIC Page 19 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT brother, he was also attacked with a sword by accused No.4. He states that there were several persons with accused No.4, whom he could not recognize in the dark. He states that the injured witness admitted that he had a previous enmity with Puriya Bisoi, who is the chief perpetrator of the crime.
21. PW19 has admitted in his crossexamination that while recording the statement he has not stated that Sania Bisoi, Juriya Bisoi, Munna Panda and Babu Pradhan were present at the time of the incident. He has further stated that the injured witness has not stated before him that Puriya Bisoi (accused No.4) has given sword blows to the deceased.
22. The previous statement of the injured witness is at Exhibit116, wherein questions have been asked by the Executive Magistrate which have been replied by the injured witness. In reply to at least three questions, the injured witness has named Puriya Bisoi (accused No.4) as the main person who attacked him and inflicted injuries upon his person.
23. In the background of the above oral and Page 20 of 51 HC-NIC Page 20 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT documentary evidence, we must examine whether the Trial Court has committed an error in acquitting accused No.4, Puriya Bisoi, for the offence under Section302 and by convicting him under Section304 PartII and sentencing him to five years imprisonment. We may also examine whether the acquittal of accused Nos.1, 2 and 3 by the Trial Court is justified, or not.
24. Before we conduct the above analysis, it would be apposite to refer to the judgments relied upon by the learned Additional Public Prosecutor on behalf of the appellant.
25. On the aspect whether the act on the part of accused No.4 would constitute the offence punishable under Section302 or 304 PartII of the IPC, reliance has been placed by the learned Additional Public Prosecutor upon the judgment in the case of Devendra Nath Srivastava Vs. State of Uttar Pradesh (supra), the relevant extract of which is reproduced hereinbelow :
"18. As to whether the act on the part of the appellant constitutes the offence punishable Page 21 of 51 HC-NIC Page 21 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT under Section 302 IPC or Section 304 Part I IPC, we are of the view that the incident has occurred after quarrel between the appellant and the deceased which is not a planned act. It is also established that the appellant was a drunkard. In our opinion, in the facts and circumstances of the case, the view taken by the High Court, that the appellant has committed offence punishable under Section 304 Part I IPC, requires no interference.
19. In State of A.P. v. Rayavarapu Punnayya, SCR at p.606, this Court, explaining the scheme of Penal Code relating to culpable homicide, has laid down the law as under: (SCC p.386, para 12) "12. In the scheme of the Penal Code, "culpable homicide" is genus and "murder"
its specie. Every "murder" is "culpable homicide" but not viceversa. Speaking generally, "culpable homicide" sans "special characteristics of murder", is "culpable homicide not amounting to murder". For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be Page 22 of 51 HC-NIC Page 22 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT termed as "culpable homicide of the second degree". This is punishable under the first part of Section 304. Then, there is "culpable homicide of the third degree". This is the lowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicide of this degree is punishable under the second part of Section 304."
21. In the same case i.e. State of A.P. v.
Rayavarapu Punnayya, this Court has further observed at SCR p.608 as under: (SCC pp.388 89, para 21) "21. ...whenever a court is confronted with the question whether the offence is "murder" or "culpable homicide not amounting to murder", on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the Page 23 of 51 HC-NIC Page 23 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT affirmative, the stage for considering the operation of Section 300 of the Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of "murder" contained in Section 300. If the answer to this question is in the negative the offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code." (emphasis supplied)
26. In Raj Bala Vs. State of Haryana and others (supra), the Supreme Court has elucidated upon the principles for sentencing and the duty of the Court while imposing sentence in the following terms :
"1. In Gopal Singh v. State of Uttrakahand, while focusing on the gravity of the crime and the Page 24 of 51 HC-NIC Page 24 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT concept of proportionality as regards the punishment, the Court had observed: (SCC pp.55152, para18) "18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the Page 25 of 51 HC-NIC Page 25 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the valuebased social mainstream may be the guiding factors. Needless to emphasise, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalised judicial discretion. Neither the personal perception of a Judge nor selfadhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of.
Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated hereinbefore and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be Page 26 of 51 HC-NIC Page 26 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual essence of just punishment." (emphasis supplied)
2. Seven years prior to that, in Shailesh Jasvantbhai v. State of Gujarat, it has been held that: (SCC pp.36162, paras 78) "7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order"
should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: "State of Page 27 of 51 HC-NIC Page 27 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT criminal law continues to beas it should bea decisive reflection of social consciousness of society."
Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration.
8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law, and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was Page 28 of 51 HC-NIC Page 28 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT illuminatingly stated by this Court in Sevaka Perumal v. State of T.N."
(emphasis supplied) And again: (SCC p.363, para13) "13. ...The court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and the victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should 'respond to the society's cry for justice against the criminal'."
3. It needs no special emphasis to state that prior to the said decision, there are series of judgments of this Court emphasizing on appropriate sentencing. Despite authorities existing and governing the field, it has come to the notice of this Court that sometimes the court of first instance as well as the appellate court which includes the High Court, either on individual notion or misplaced sympathy or personal perception Page 29 of 51 HC-NIC Page 29 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT seems to have been carried away by passion of mercy, being totally oblivious of lawful obligation to the collective as mandated by law and forgetting the oftquoted saying of Justice Benjamin N. Cardozo, "Justice, though due to the accused, is due to the accuser too" and follow an extremely liberal sentencing policy which has neither legal permissibility nor social acceptability.
4. We have commenced the judgment with the aforesaid pronouncements, and our anguished observations, for the present case, in essentiality, depicts an exercise of judicial discretion to be completely moving away from the objective parameters of law which clearly postulate that the prime objective of criminal law is the imposition of adequate, just and proportionate punishment which is commensurate with the gravity, nature of the crime and manner in which the offence is committed keeping in mind the social interest and the conscience of the society, as has been laid down in State of M.P. v. Babu Lal, State of M.P. v. Surendra Singh and State of Punjab v. Bawa Singh.
*** *** ***
16. A Court, while imposing sentence, has a Page 30 of 51 HC-NIC Page 30 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT duty to respond to the collective cry of the society. The legislature in its wisdom has conferred discretion on the Court but the duty of the court in such a situation becomes more difficult and complex. It has to exercise the discretion on reasonable and rational parameters. The discretion cannot be allowed to yield to fancy or notion. A Judge has to keep in mind the paramount concept of rule of law and the conscience of the collective and balance it with the principle of proportionality but when the discretion is exercised in a capricious manner, it tantamounts to relinquishment of duty and reckless abandonment of responsibility. One cannot remain a total alien to the demand of the sociocultural milieu regard being had to the command of law and also brush aside the agony of the victim or the survivors of the victim. Society waits with patience to see that justice is done. There is a hope on the part of the society and when the criminal culpability is established and the discretion is irrationally exercised by the court, the said hope is shattered and the patience is wrecked. It is the duty of the court not to exercise the discretion in such a manner as a consequence of which the expectation inherent in patience, which is Page 31 of 51 HC-NIC Page 31 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT the "finest part of fortitude" is destroyed. A Judge should never feel that the individuals who constitute the society as a whole is imperceptible to the exercise of discretion. He should always bear in mind that erroneous and fallacious exercise of discretion is perceived by a visible collective.
17. In the instant case, we are constrained to say that the learned Single Judge while dealing with the appeal preferred by the respondents has remained quite unmindful and unconcerned to the obvious and, therefore, the reduction of sentence by the High Court to the period already undergone is set aside and the sentence imposed by the learned trial Judge is restored."
(emphasis supplied)
27. The next judgment relied upon on behalf of the Ravinder Singh Vs. State of appellant is in the case of Haryana and others (supra) , on the aspect of proportionate sentence to be awarded for the crime. The relevant extract of the judgment is as under :
"11. The question of sentence is always a difficult task requiring balancing of various considerations. The question of awarding sentence is a matter of discretion to be exercised on consideration of Page 32 of 51 HC-NIC Page 32 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT circumstances aggravating and mitigating in the individual cases. The law courts have been consistent in the approach that a reasonable proportion has to be maintained between the seriousness of the crime and the punishment. While it is true that sentence disproportionately severe should not be passed that does not clothe the court with an option to award the sentence manifestly inadequate. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime.
12. In State of Karnataka vs. Krishnappa, this Court held thus: (SCC pp.8384, para 18) "18. ... The sentencing courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the Page 33 of 51 HC-NIC Page 33 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced. The High Court, in the facts and circumstances of the case, was not justified in interfering with the discretion exercised by the trial court and our answer to the question posed in the earlier part of the judgment is an emphatic -- No."
28. The judgment in the case of Sagar Vs. State of Haryana (supra), has also been relied upon to support the principle that the sentence must be just and proper and commensurate with the gravity and nature of the crime. The pronouncement of the Supreme Court in this regard is as follows :
"14. In view of the above, the law on the issue can be summarized to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society.
Page 34 of 51
HC-NIC Page 34 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The punishment should not be so lenient that it shocks the conscience of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers.
15. In view of the above, we are of the considered opinion that the High Court was not justified in reducing the sentence so drastically, and considering the number and nature of the injuries, the trial court had awarded the appropriate punishment."
29. In light of the above principles of law made applicable while evaluating the evidence on record, we find that the injured witness, Puriya (accused No.4) and his brother Juriya (absconding) have been named as the persons having swords in their hands. Puriya is stated to have given a sword blow on the left shoulder of the complainant, whereas Juriya is supposed to have given a sword blow on the head of the complainant.
Page 35 of 51
HC-NIC Page 35 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
Accused No.2, Sania, is stated to have had a piece of wood in his hand and beaten the complainant as well as the deceased. Insofar as the deceased is concerned, the injured complainant has not deposed regarding who had inflicted sword blows to him, but has only stated that all three brothers, accused No.2Sania, accused No.4 Puriya and Juriya, together beat him and the deceased.
The complainant then fled away to the neighbouring factory to save his life. In the complaint at Exhibit 44, the complainant has stated that accused No.4 had a sword in his hand. Juriya also had a sword and accused No.2 had a stick. He has stated that accused No.4, Puriya, gave a sword blow on the head of the deceased, whereas Juriya gave a sword blow on the left shoulder of the deceased. The accused persons were shouting "Maro maro" at the same time. Irrespective of minor discrepancies, the role of Puriya and his having inflicted sword blows, clearly emerges from the record.
30. In his statement before the Executive Magistrate at Exhibit116, the injured witness has specifically named accused No.4 as the main accused person who attacked the deceased and himself with a sword. The other accused persons are not named by him in this Page 36 of 51 HC-NIC Page 36 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT statement, as he states that it was dark. However, he has specifically named accused No.4, Puriya Bisoi, as being the main perpetrator of the incident. The injuries on the person of the injured witness are mostly incisewounds, for which he was hospitalized for two or three days. Though the injuries are stated to be simple, however, Dr.Ishvarlal Patel, who treated the injured complainant, has stated that an injury has been caused upon a vital part of the body, that is, the head.
31. As per the Postmortem Report, seventeen external injuries and four internal injuries were present on the body of the deceased. The deceased suffered, in all, twentyone injuries, both external and internal. The details of the injuries have been given in Column No.17 of the Postmortem Report. Most of the injuries are incise wounds, stab wounds and chop wounds, on vital parts of the body such as the abdomen and navel region.
32. PW13, Dr.Iliyas Ishaqmohammad, who performed the postmortem on the body of the deceased, has deposed that the injuries were antemortem and the deceased Page 37 of 51 HC-NIC Page 37 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT died due to shock on account of multiple chop and stab wounds all over the body.
33. From the evidence of the injured witness, it emerges that the deceased was working in the same factory as him. While the deceased was working at a machine on the ground floor, the injured witness was working on the upperstorey. The accused persons came to the factory and dragged the deceased outside. Thereafter, the deceased was given sword blows by accused No.4 and Juriya and the complainant was also attacked with a sword by them when he came to the rescue of his brother, upon hearing the commotion.
34. Juriya Bisoi is not before the Court as he was not put to trial with the other accused, having absconded. Insofar as the present accused persons are concerned, the main accused is accused No.4, Puriya, who has inflicted sword blows on the person of the deceased and the injured witness. The deceased died due to multiple incise wounds, stab wounds and chop wounds that were inflicted indiscriminately all over his body. The fact that there were twentyone injuries, including four internal ones, reveals that Page 38 of 51 HC-NIC Page 38 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT there was an intention on the part of Puriya to kill the deceased. It is not as though there was a sudden altercation or that the incident happened in the heat of the moment. There was no provocation from the side of the deceased to the accused persons. The deceased was working on the machine in the factory and it is the accused persons who came and dragged him out. Hence, they are clearly the aggressors. The deceased died as a result of sword injuries. The sword is proved to have been wielded by accused No.4, Puriya. As stated by the Supreme Court in State of A.P. Vs. Rayavarapu Punnayya [(1976) 4 SCC 382], the relevant portion of which has been extracted in the judgment of Devendra Nath Srivastava Vs. State of Uttar Pradesh (supra), culpable homicide is the genus and murder is the specie. All murder is culpable homicide but all culpable homicide does not amount to murder. Therefore, from the various degrees of culpable homicide, the greatest form of culpable homicide has been defined as murder, in Section300 of the IPC. To have a clearer understanding, we may look to the relevant provisions of law.
Page 39 of 51
HC-NIC Page 39 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
35. Section299 of the IPC reads as below :
"299. Culpable homicide - Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
36. Murder has been defined in Section300 IPC, reproduced below. Three exceptions have been carved out which take the case out of the definition of murder. Section300 of the IPC states as below :
"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 Secondly 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 Thirdly 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 Fourthly If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily Page 40 of 51 HC-NIC Page 40 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT 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."
37. We are called upon to examine whether the case against accused No.4, Puriya, would fall under exceptions secondly to fourthly or under the first part of Section300 IPC. In our considered view, the present case against accused No.4 would squarely fall under the first part of Section300 of the IPC, as the act by which the death of the deceased has been caused has been done with the intention of causing death. No mitigating circumstances emerge from the evidence on record to bring the case against Puriya within the ambit of any of the exceptions to Section300. Referring once again to the quotation from State of A.P. Vs. Rayavarapu Punnayya contained in the judgment of Devendra Nath Srivastava Vs. State of Uttar Pradesh (supra), the first question, whether the accused has done an act by doing which he has caused the death of another, is answered in this case. The second question whether the act of the accused would amount to culpable homicide as defined in Section299 IPC is also answered in the affirmative.
Page 41 of 51
HC-NIC Page 41 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
38. The evidence on record, insofar as accused No.4 is concerned, clearly reveals that he, along with Juriya, inflicted multiple sword blows on the body of the deceased that have resulted in the death of the deceased. It is not a case of a single or accidental blow having been inflicted. The fact that there were seventeen external injuries on the body of the deceased points out to the clear intention on the part of accused No.4 to cause the death of the deceased with a sharp and dangerous weapon such as a sword.
39. In the judgment under challenge, the Trial Court has not thought it necessary to give any reasons as to why it has not convicted accused No.4 under Section 302 of the IPC. What process of reasoning led the Trial Court to convict accused No.4 under Section304 PartII, also does not emerge from a close reading of the judgment. As stated earlier, in our view, there are no mitigating circumstances in the present case as far as accused No.4 is concerned, in order to justify the imposition of such a disproportionately lesser sentence, looking to the brutal manner in which the incident occurred. As has been held by the Supreme Page 42 of 51 HC-NIC Page 42 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT Court in Raj Bala Vs. State of Haryana and others (supra), while imposing sentence, the Court owes a duty to respond to the collective cry of society. Though the legislature, in its wisdom, has conferred discretion on the Court, however, such discretion has to be exercised reasonably, looking to the facts and circumstances of the case. Justice is required to be meted out not only to the accused but to the victim as well. The sentence should be proportionate and commensurate with the nature and gravity of the offence. To show misplaced sympathy in a case of such a heinous crime would amount to a travesty of justice, especially when it is against the weight of the evidence on record. In the present case we find sufficient evidence to prove that accused No.4 had the intention of killing the deceased, which is amply proved by the dangerous weapon (sword) that he wielded and the number of blows inflicted by him. Though, in this act he was aided by his brother Juriya who was also armed with a sword, however, we confine ourselves to Puriya only, as Juriya is not before us. It emerges from the evidence on record that both accused No.4 and Juriya kept on hitting the deceased with a sword Page 43 of 51 HC-NIC Page 43 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT indiscriminately. It is not a question of deciphering which blow was given by which accused person. The number of sword blows, resulting in multiple injuries all over the body of the deceased, clearly reveals that the intention of Puriya was to cause the death of the deceased.
40. In Rampal Singh Vs. State of Uttar Pradesh, reported in (2012) 8 SCC 289, a fine distinction between murder and culpable homicide not amounting to murder, has been drawn. Further, the distinction between the application of Section302 of the IPC on the one hand and Section304 on the other, has been lucidly explained as below :
"20. In Ajit Singh v. State of Punjab, the Court held that: (SCC p.468, para 20) "20. In order to hold whether an offence would fall under Section 302 or Section 304 Part I IPC, the courts have to be extremely cautious in examining whether the same falls under Section 300 IPC which states whether a culpable homicide is murder, or would it fall under its five Exceptions which lay down when culpable homicide is not murder..."
In other words, Section 300 states both, what is Page 44 of 51 HC-NIC Page 44 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT murder and what is not. First finds place in Section 300 in its four stated categories, while the second finds detailed mention in the stated five Exceptions to Section 300. The legislature in its wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to murder' as well as that 'not amounting to murder' in a composite manner in Section 300 of the Code.
21. Sections 302 and 304 of the Code are primarily the punitive provisions. They declare what punishment a person would be liable to be awarded, if he commits either of the offences. An analysis of these two sections must be done having regard to what is common to the offences and what is special to each one of them. The offence of culpable homicide is thus an offence which may or may not be murder. If it is murder, then it is culpable homicide amounting to murder, for which punishment is prescribed in Section 302 of the Code. Section 304 deals with cases not covered by Section 302 and it divides the offence into two distinct classes, that is, (a) those in which the death is intentionally caused; and (b) those in which the death is caused unintentionally but knowingly. In the former case the sentence of imprisonment is compulsory and the maximum sentence admissible is imprisonment for life. In the latter case, imprisonment is only optional, and the maximum sentence only extends to imprisonment for 10 years. The first Page 45 of 51 HC-NIC Page 45 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT clause of Section 304 includes only those cases in which offence is really 'murder', but mitigated by the presence of circumstances recognized in the Exceptions to Section 300 of the Code, the second clause deals only with the cases in which the accused has no intention of injuring anyone in particular. In this regard, we may also refer to the judgment of this Court in Fatta v. Emperor, 1151. C. 476 (Refer : Penal Law of India by Dr. Hari Singh Gour, Vol.3, 2009.)
22. Thus, where the act committed is done with the clear intention to kill the other person, it will be a murder within the meaning of Section 300 of the Code and punishable under Section 302 of the Code but where the act is done on grave and sudden provocation which is not sought or voluntarily provoked by the offender himself, the offence would fall under the Exceptions to Section 300 of the Code and is punishable under Section 304 of the Code. Another fine tool which would help in determining such matters is the extent of brutality or cruelty with which such an offence is committed.
23. An important corollary to this discussion is the marked distinction between the provisions of Section 304 Part I and Part II of the Code. Linguistic distinction between the two parts of Section 304 is evident from the very language of this Section. There are two apparent distinctions, one in relation to the punishment Page 46 of 51 HC-NIC Page 46 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT while other is founded on the intention of causing that act, without any intention but with the knowledge that the act is likely to cause death. It is neither advisable nor possible to state any straitjacket formula that would be universally applicable to all cases for such determination. Every case essentially must be decided on its own merits. The Court has to perform the very delicate function of applying the provisions of the Code to the facts of the case with a clear demarcation as to under what category of cases, the case at hand falls and accordingly punish the accused."
41. Applying the above principles of law to the facts and evidence in the present case, it clearly emerges that the element of intention to cause the death of the deceased is very clearly present. Hence, in our view, there was no justification on the part of the learned Judge of the Trial Court to have convicted accused No.4 under Section304 PartII of the IPC and sentenced him to only five years imprisonment. Accused No.4, Puriya, therefore, deserves to be convicted under Section302 of the IPC and his sentence is required to be enhanced to life imprisonment. In our view, to that extent, the judgment of the Trial Court is perverse and deserves to be set aside.
Page 47 of 51
HC-NIC Page 47 of 51 Created On Wed Sep 20 23:12:58 IST 2017
R/CR.A/773/2000 JUDGMENT
42. Insofar as accused No.2, Sania, is concerned, though it is stated by the complainant that he was present with a stick in his hand, however, the complainant has not attributed any blow to him in the complaint. In his deposition, the complainant has stated that accused No.4Puriya, Juriya and accused No.2Sania, were beating his brother. In cross examination, however, this witness states that he recognized Puriya Bisoi as being present at the time of the incident, but he did not recognize any other accused persons. In his statement to the Executive Magistrate as well, he has only named Puriya Bisoi and stated that there were some other persons with him whom he did not recognize. In the crossexamination, the Executive Magistrate categorically states that the injured witness did not name accused No.2Sania, Juriya, accused No.1Munna Panda and accused No.3Babu Pradhan as being present at the time of the incident. There are material discrepancies in the evidence of the injured witness regarding the presence of accused No.2, which create grave doubt regarding the presence of accused No.2. The Panch witnesses regarding the Page 48 of 51 HC-NIC Page 48 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT Panchnama of the recovery of the bloodstained shirt from accused No.2 have become hostile. Accused No.2 is supposed to have had a stick in his hand and not a sword. The complainant and injured witness has given two conflicting versions regarding the presence of accused No.2Sania at the time of the incident which is brought out by the deposition of the Executive Magistrate. Under such circumstances, there is no evidence worth the name and none to prove the case beyond reasonable doubt against accused No.2.
43. In the above view of the matter, we are in agreement with the conclusion arrived at by the Trial Court in acquitting accused No.2Sania of the charge under Section302 of the IPC.
44. Insofar as accused No.1Munna Panda and accused No.3Babu Pradhan are concerned, there is no evidence, whatsoever, regarding their participation in the incident. There is absolutley no material on record to indicate that they were among the four or five persons stated to have accompanied accused No.4 and Juriya on the night of the incident. In fact, the evidence against these accused is almost nonexistent and their Page 49 of 51 HC-NIC Page 49 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT presence at the place of incident is highly doubtful and remains unproved. The acquittal recorded by the Trial Court in respect of accused Nos.1 and 3, therefore, does not deserve interference.
45. In view of the above discussion and for reasons stated hereinabove, we deem it appropriate to pass the following order:
(i) Criminal Appeal No.773/2000 is allowed. The judgment of the Trial Court under challenge is hereby quashed and set aside to the extent that it convicts accused No.4, Puriya Bisoi under Section304 PartII and 324 of the IPC and sentences him to five years of rigorous imprisonment. Instead, accused No.4, Puriya Bisoi, stands convicted of the offence punishable under Section302 of the IPC and shall undergo rigorous imprisonment for life. Accused No.4 shall surrender within four weeks, failing which he shall be taken into custody.
(ii) Criminal Appeal No.774/2000 stands dismissed.Page 50 of 51
HC-NIC Page 50 of 51 Created On Wed Sep 20 23:12:58 IST 2017 R/CR.A/773/2000 JUDGMENT
(iii) The original Record and Proceedings be sent back to the concerned Trial Court.
(SMT. ABHILASHA KUMARI, J.) (A.J. SHASTRI, J.) Gaurav+ Page 51 of 51 HC-NIC Page 51 of 51 Created On Wed Sep 20 23:12:58 IST 2017