Holding

The conviction under section 304 Part I IPC is affirmed and the sentence is enhanced to five years of rigorous imprisonment.

Summary

The dispute arose when the respondents, armed, attacked Partap Singh after a protest over burnt sugarcane damaging his wheat crop, leading to his death. The trial court convicted the respondents under section 302 IPC (murder) and sentenced them to life imprisonment. The High Court, however, acquitted them of murder, convicted them under section 304 Part I IPC, and reduced the sentence to the time already served while increasing the fine, without providing clear reasons. On special leave under Article 136, the Supreme Court examined the evidence, found that the respondents exceeded the right of private defence and thus fell within section 304 Part I, and held that the High Court’s sentence was grossly inadequate. Consequently, the Court upheld the conviction under section 304 Part I and enhanced the punishment to five years of rigorous imprisonment, ordering the fine to be refunded if paid.

Issues considered

The appropriate charge: whether the respondents should be convicted under section 302 IPC or reduced to section 304 Part I IPC.
Whether the High Court correctly reduced the sentence to the period already undergone and enhanced the fine.
Whether the High Court provided sufficient reasoning for its conviction and sentencing.
Whether the Supreme Court may re‑appraise evidence under Article 136 when the High Court’s findings are erroneous.

Legislation cited

Code of Criminal Procedure, 1973s. 386
Indian Penal Code, 1860s. 148, s. 149, s. 302, s. 304(Part I), s. 323, s. 325

Subjects

murderculpable homicide not amounting to murderprivate defencesentence enhancementappeal under Article 136evidence evaluationhigh court sentencing powers

Judgment

SHAM SUNDER
A
v.
PURAN AND ANR.

SEPTEMBER 21, 1990

B [S. RATNAVEL PANDIAN AND M. FATHIMA BEEVI, JJ.]

Indian Penal Code, 1860: Sections 302, 304 Part-I-Conviction
-Life imprisonmenr-Second appeal-Converted to one under section
304 Part I and sentence reduced-No particular reasons given-Validity
of the conviction-Sentence-Whether adequate.
c Sentence: Awarding punishment-Relevant factors to be taken
into account-Measure of punishmenr to be proportionate to gravity of
offence. 1

Respondent I is the son of Respondent No. 2. Including Respon-
D dent No. 1 Respondent No. 2 had 4 sons. Respondent No. 2 owned a
sugarcane field adjoining the wheat field of one P. One of the sons of
Respondent-2 had burnt sugarcane patties causing damage to the wheat
crop of P, against which P protested before the respondents. The pro-
test was turned down. Shortly thereafter the respondent and the family
members reached the house of P. They were all armed. Respondents
E attacked P and he fell down. On the way to hospital P died. Most of the
accused as well as the family members of P S'ustained injuries. On a
complaint, F.I.R. was registered. After investigation, Prosecution filed
a case before the Additional Sessions Judge. Two eye-witnesses were
produced by the prosecution. They were relatives of the deceased and

F
there was no independent witness.

The Additional District Judge convicted the respondent for
offences nnder sections 302 IPC and 323, 325 read with 149 IPC. Both were
)
-
sentenced to imprisonment for lif.e ~nd a fine Rs.500 each under section
302 IPC. They were also sentenced to rigorous imprisonment ranging
from six montlis to one.year for the other offences. The other accused
G were convicted for mmor offences and released on probation. The re-
spondent appealed against the conviction and sentence. The High Court
acquitted the respondents of the major charge under section 302 IPC
and recorded the conviction under section 304 Part-I reducing the
sentence of life imprisonment to the term already undergone, and en-
hanced the sentence of fine. No appeal was preferred by the State.
H However, the complaint.filed an appeal by special leave. ).. -

662
..:. SHAM SUNDER v. PURAN 663

Disposing the appeal, this Court,

HELD I. There is the evidence of only the interested witnesses
who have the tendency to exaggerate and involve even innocent persons.
Most of the accused have sustained injuries and in explaining the same,
the prosecution witnesses have not come forward with a truthful
account. In the melee that ensued on account of the aggressive attitude B
of the respondents and other members of the family who participated
and used force against P and his associates, in all probabilities in the
exercise of right of private defence. However, the circumstances did not
warrant the causing of death and the respondents must be deemed to
have exceeded their right. The nature of the injuries indicate that they
were sufficient in the ordinary course of nature to cause death and had
been inflicted intentionally. In such circumstances, the act of the
c
respondents squarely falls under section 304 Part-I, IPC. The High
Court has not given any cogent or clear reasons for its conclusion and
whatever reason has been stated is erroneous. It is on the basis of the
statement given in the course of investigation by a person who was not
examined in the case that the High Court has drawn its conclusion. - 'o
However, the conviction under section 304 Part-I, IPC is maintained.

2. The High Court has reduced the sentence to the term of
imprisonment already undergone, and enhanced the fine. The respon-
dents have undergone imprisonment only for a short period of less than
six months and, in a grave crime like this, the sentenCe awarded is E
rather inadequate. No particular reason has been given by the High
Court for awarding such sentence. The Court in fixing the punishment
for any particular crime should take into consideration the nature of the
offence, the circumstances in which it was committed, and "the degree of
deliberation shown by the offender. The measure of punishment should
be proportionate to the gravity of the offence. The sentence imposed by I"
the High Court appears to be so grossly and entirely inadequate as to
involve a failure of justice. The Sentence is enhanced to one of rigorous
imprisonment for a period of five years.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 195 of 1984. G

From the Judgment and Order dated 30.1L1982 of the Punjab &
Haryana High Court in Cr!. Appeal No. 425 D.B./1982.

-0.P. Soni, Ms. Kamlesh Datta and S.K. Sabharwal for the
~ppellant. H
664 SUPREME COURT REPORTS [1990] Supp. I S.C.R. •
•
A U.R. Lalit and Uma Datta for the Respondents.

Mahabir Singh for the State of Haryana.

The Judgment of the Court was delivered by

B FATHIMA BEEVI, J. The respondents Puran and Tara Chand
along with Ved, Balwan, Dhapan, Jagdish and Lal Chand were tried
before the Additional Sessions Judge, Sonepat, for the murder of one
Partap Singh and causing injuries to others. The learned Judge by
~
judgment dated 18.5.1972 convicted these respondents for offences
under section 302, I.P.C., and sections 323, 325 read with 149, I.P.C.
They were sentenced to undergo imprisonment for life and ordered to
c pay a sum of Rs.500 each under section 302, I.P.C., R.I. for one year
under section 148, l.P.C., R.I. for one year under section 325 and R.I.
for six months under section 323, 1.P.C. The other accused were con-
victed for the minor offences and released on probation under sections
360/36-1, Cr. P.C. The respondents appealed against the conviction
D and sentence. The High Court by the impugned judgment dated
30. 11.1982 disposed of the appeal thus:
•
"Admittedly there was no prior enmity between the
parties. The quarrel arose out of a very insignificant matter
like the burning of dry sugarcane leaves on the common
E boundary of the fields of the two parties. The ensuing alter-
cation would probably have been forgotten had Partap
Singh deceased not died. Even when there is an altercation
arising out of a minor incident there is some tendency on
the part of the prosecution witness to exaggerate matters.
:!-
The three-eye-witnesses have of course fully supported the
F prosecution case but the investigating officer recorded the
statement of one Paras Ram at the time of making the
inquest report which gives a somewhat different version.
The learned trial judge has himself found that the object of
the unlawful assembly was not to commit the murder of the
deceased. It is precisely for this reason that five accused -~

G persons have been released on probation and only two
accused, i.e., Puran and Tara Chand appellants, have been
i,, convicted under section 302, I.P.C. We do not propose to
go into the details of the controversy and in the peculiar
~
~:
ii
circumstances of this case convert the conviction of Puran
and Tara Chand appellants into one under section 304, Part-
.
:1 H I, I. P. C., on the basis that in view of the statement made by
"

.. l
•. SHAM SUNDER v. PURAN [FATHIMA BEEVI, i.J 665

Paras Ram at the time when the investigating officer made
A
the inquest report a somewhat different version was given.
This Paras Ram was not produced as a witness by the pro·
secution. Since there was no prior enmity between ihe ·
parties, we order that sentence already undergone by
Puran and Tara Chand 'appellants will meet the ends of
justice. They are, however, ordered to pay a fine of
Rs.12,000 each. In defauit of payment of this fine, the
defaulter is ordered to undergo rigorous imprisonment for
five years. The sentences of imprisonment imposed upon
Puran and Tara Chand appellants on other counts are also
reduced to that already undergone by them. The total fine,
if realised, shall be paid to the next heirs of i>artap Singh
deceased as compensation.''
c
(emphasis supplied)

The High Court has, by this Cryptic order, acquitted respondents of
the major charge under section 302, I.P.C., and recorded their convic·
tion under section 304 Part-I reducing the sentence of life imprison- D
a'
men! to term of imprisonment already undergone while enhancing
the sentence of fine. The State has not preferred any appeal against
the order of acqµittal or reduction of sentence. The respond€nts. it
appears, have accepted the judgment. Sham Sunder, the de j(1cto
complainant, however, being agg,ieved approached this Court under
Article 136 of the Constitution. This Court has granted special leave to E
appeal.

The High Court, exercising power under section 386, Cr. P.C.,
in an appeal from a conviction may reverse ihe finding and sentence
and acquit the accused or alter the finding maintaining the sentence or
with or without altering the finding after the nature or the extent or the F
nature and extent of the sentence but not so as to enhance the same.
The powers of the High Court in dealing with the evidence are as wide
as that of the trial Court. As the final court of facts, the High Court has
also duty to examine the evidence and arrive at its own conclusion on
the entire material on record as to the guilt or otherwise of the appel·
!ants before it. G

It is true that the High Court is entitled to reappraise the
evidence in the case. It is also true that under Article 136. the Supreme
Court does not ordinarily reappraise the evidence for itself for
determining whether or not the High Court has come to a correct
conclusion on facts but where the High Court has completely missed H
666 SUPREME COURT REPORTS [1990] Supp. I S.C.R.

the real point requiring determination and has also on erroneous
A
grounds discredited the evidence and has further failed to consider the
fact that on account of long standing enmity between the parties, there
is a tendency to involve innocent persons and to exaggerate and lead
pre-judged evidence in regard to the occurrence, the Supreme Court
would be justified in going into the evidence for the purpose of satisfy-
B ing itself that the grave injustice has not resulted in the case.

We have extracted the materiaf portion of the judgment of the
High Court to indicate that the line of approach adopted by the High
Court is wholly wrong. There is no discussion of the evidence much ~
less any reasoning. The respondents herein along with five others had
been found guilty by the trial court accepting the testimony of the two
c eye-witnesses and other mah~rial evidence on record.

A brief resume of the facts is necessary. Lal Chand and Tara
Chand are brothers. Ved Singh, Pur_i'~, Balwan and Ishwar are the
sons of Tara Chand and Dhapan is his wife. Jagdish is the son of Lal
D Chand. Partap and Bhim Singh are brothers. Sham Sunder is the son
of Bhim Singh. Roshan is the son of Partap .. Tara Chand owns
sugarcane field adjoining the wheat field of Partap. On 10.3.1981 in •
the mornin_g_, Ved Singh burned sugarcane patties causing damage to
the wheat crop. The protest raised by Roshan was not heeded. Bhim
Singh arrived at the scene and altercation 'ensued. Partap later raised
E protest before Tara Chand. His grievance was not redressed. At about
6.00 P.M. Partap raised the protest before Puran who also turned
down the same. Shortly thereafter Pu ran and the other members of his.
family including his wife, brother and their children all numbering
about eight reached in front of the house of Partap. They were armed
and attacked Partap. The allegation is that the respondents Tara -'
F Chand and Puran had attacked Partap with jailies, first they gave
jailies blows from the prong side in the chest and when Partap fell
down, they gave jailies blows like lathi on his head, back and shoulder.
Partap died on his way to the hospital. It is further alleged that in the
course of the incident Lal Chand and Jagdish caused injuries to
Roshan; Ishwar caused injuries to Dhapan wife of Partap; Puran, Ved,
G Balwan caused injuries to Sham Sunder. It has come out in evidence
that Ved, Dhapan, Lal Chand, Puran and Ishwar also received injuries
in the course of the incident.

Sham Sunder and Roshan are the two eye-witnesses, besides
Smt. Dhapan the wife of deceased Partap. There had been no indepen- ,..
H dent witness. Sham Sunder and Roshan said that they had caused

.J

Ji
SHAM SUNDER v. PURAN [FATHIMA BEEVI, J.] 667

injuries to the members of the opposite party in self-defence. They do
A
not however state in what circumstances they had to use force. The
evidence does not disclose the genesis of the occurrence; how it
developed and culminated in fatal injuries to Partap. There had been
no enmity between the two.groups. The immediate provocation for the
quarrel is the damage to the wheat crops. It is admitted that Partap
raised his protest right from the morning till the arrival of Puran who B
was employee of the Medical College, Rohtak. The prosecution has, it
appears, given a twist when they say that at 6.00 P.M. Partap met
Puran who turned down his request and went home and after 15
minutes all the members of his family including the womenfolk
reached the house of Partap and started the assault. It is significant to
note that the women and even the minor children of both families were
present and received injuries recording their presence at the place. It
c
would therefore appea1 that it was a continuous transaction and when
Partap persistently raisec the protest and started abusing Puran, other
members of his household had come out. The quarrel had taken a
serious turn and in the course of further development fatal in juries had
been caused to Partap. The plea of the respondents was that they did D
not cause any injury, that there was a Panchayat where a large crowd
assembled and there .had be~n brick-batting and altercation. The· plea
of private defence was not specifically set up. However, if there are
material in evidence to indicate that the incident could not have
happened in. the manner spoken to by the eye-witnesses and in all
probability the respondents had used the force exercising the right of E
private defence, then accused are entitled to the benefit thereof.
Whether the respondents have in such circumstances exceeded their
right and are justified in causing death, has necessarily to be
considered.

In the absence of a full discussion of the evidence by the High F
Court, we have been constrained to consider the materials on record.
We have seen that there is the evidence of only the interested witnes-
ses who have the tendency to exaggerate and involve even innocent
persons. We have seen that JllOSt of the accused have sustained injuries
and in explaining the same, the prosecution witn.esses have not come
forward with a truthful account. We are led to draw the inference G
that in the melee and ensued on account of the aggressive attitude of
Partap, the respondents and-other members of the family participated
and used the force against Partap and his associates in all probabilities
in the exercise of right of private defence; However, the circumstances
did not warrant the causing of death and the respondents must be
deemed to_ have exce~ded their- ri~ht. The nature of the injqries indi- H
668 SUPREME COURT REF.ORIS f 1990] Supp. 1 S.C.R

A eate that injuries sufficient in the ordinary course of nature to cause
death had been inflicted Intentionally. In such circumstances., the act
of the respondents squarely falls under section 304 Part-I, l.P.C.
While we agree with the conclusion arrived at by the High Court, we
record that the High Court has not given any cogent or clear reasons
for its conclusion and whatever reason has been stated is erroneous. ll
B
is on the basis of the statement given in the course of investigation by a
person who was not examined in the case that the High Court has
drawn its conclusion. We, however, maintain the conviction tmder
section 304 Part-I, l.P .C.

The High Court has reduced the sentence to the term of impri-
c sonment already undergone while enhancing the fine. It is pointed out
that the respondents have undergone only imprisonment for a short
period of less than six months and, in a grave crime like this, the
sente!lce awarded is rather inadequate. No particular reason has been
given by the High Court for awarding such sentence. The court in
fixing the punishment for any particular crime should take into con-
D sideration the nature of the offence, the circumstances in whcih it was
committed, and the degi;ee of deliberation shown by the offender. The
measure of punishment should be proportionate to the gravity of the
offence. The sentence imposed. by the High Court appears to be so
grossly and entirely inadequate as to involve a failure of justice. We
are of opinion that to meet the ends of justice, the sentence has to be
E enhanced.

In the result, we maintain the conviction of the respondents but
enhance the sentence to one of rigorous imprisonment for a period of
five years. The respondents should surrender to the bail to undergo
the unexpired portion of the sentence. The fine, if paid, shall be
F refunded to the respondents 1 and 2.

The appeal is disposed of as above.

G.N. Appeal disposed ()f.