Kedar and Others vs State of U.P.

H.G. Ramesh, J.—This Criminal appeal has been preferred by the accused appellants, namely Kedar, Shivnath, Narendra, Shiv Bachan, Mangala, Smt. Munia, Ram Bachan, Ram Chandra and Ram Kishun against the judgment and order dated 21st of March, 1983 passed by the IV Addl. Sessions Judge, Ghazipur in Sessions Trial No. 114 of 1982 (State vs. Kedar & others), whereby accused-appellants Kedar and Sheonath were convicted and sentenced to undergo two years'' R.I. U/s. 440 IPC, six months'' R.I. under Section 323 /34 IPC, one year''s R.I. U/s. 147 IPC, five years'' R.I. U/s. 326 /149 IPC, six months'' R.I. U/s. 323 /149 IPC. Accused-appellant Narendra was convicted and sentenced to undergo two years'' R.I. U/s. 440 IPC, six months R.I. U/s. 323 /34 IPC, 18 months'' R.I. U/s. 148 IPC, five years'' R.I. U/s. 326 /149 IPC, six months'' R.I. U/s. 323 /149 IPC. Accused-appellant Sheo Bachan was convicted and sentenced to undergo two years'' R.I. U/s. 440 IPC, six months'' R.I. U/s. 323 IPC, one year''s R.I. U/s. 147 IPC, five years'' R.I. U/s. 326 /149 IPC, six months'' R.I. U/s. 323 /149 IPC. Accused-appellant Ram Bachan was convicted and sentenced to undergo 18 months'' R.I. U/s. 148 IPC, life imprisonment u/s. 302 IPC, six months'' R.I. U/s. 323 /149 IPC. Accused-appellants Mangala, Smt. Munia, Ram Chandar and Ramkishun were convicted and sentenced to undergo one year''s R.I. U/s. 147 IPC, five years'' R.I. U/s. 326 /149 , six months'' R.I. U/s. 323 /149 IPC. All the sentences were ordered to run concurrently.

Out of the nine accused-appellants, accused-appellants, namely, Kedar, Shiv Nath, Mangala and Smt. Munia have died, as per report of the Chief Judicial Magistrate, Ghazipur dated 17.7.2015 and as such, the appeal on their behalf stands dismissed as having abated.

The prosecution case in nutshell was that on 21.8.1981 PW1 Sheochand and his deceased brother Deepchand were at work at the house of PW4 Lachhmi Kalwar in the main abadi of Village Tajpur which lies to the north of the railway station and in their absence accused Kedar, Sheo Bachan, Sheonath, Narendra around 5 PM, started demolishing a hut raised by them over the land in respect of which litigations were going on between them and accused Kedar and others and when Smt. Salabia remonstrated against the high handedness, accused Sheo Bachan gave her some lathi blows, as a result of which, she received lacerated wounds on her head. The incident was pacified and the accused Sheo Bachan and others came back to their house. After the incident, Urmila, the daughter of deceased Deepchand, went to the house of Lachhmi Kalwar and informed her father Deepchand (deceased) and her uncle PW1 Sheochand about the incident, whereupon they both obtained permission from Lachhmi Kalwar and rushed towards their house when on their way they reached near the house of accused Kedar around 5:30 PM all the aforesaid accused, out of whom Narendra and Ram Bachan were armed with spears and rest with lathis, intercepted them and at the instigation of Smt. Mania started beating them. Accused Ram Bachan during the incident is said to have given the fatal spear blow which landed on the chest of the deceased Deepchand, who fell down and died instantaneously. PW1 Sheochand is said to have snatched the lathi from one of the assailants Smt. Munia and wielded it in his defence. On the alarm a number of witnesses, including Mohan (PW2), Soyamber, Dharamdeo and others, who were not produced, reached on the scene of the occurrence and witnessed the incident. It is said that out of the assailants, accused Ramkishun, Mangala, Sheo Bachan, Sheonath, Kedar and Smt. Munia were overpowered on the spot by the witnesses and the rest managed to slip away.

After the incident, PW1 Sheochand prepared a written report (Ext.ka 1) on the spot. Immediately thereafter a police party headed by PW8 S.I. Ganga Sagar Yadava, the then Station Officer, P.S. Karimuddinpur, which had come to Tajpur railway station to find out some clue in case Crime No. 90 under Section 380 IPC of that police station, arrived on the spot on hearing the alarm. PW1 Sheochand submitted a written report (Ext.ka 1) to S.I. Ganga Sagar Yadava, who took down the contents of the F.I.R. in his case diary. As the scene of the incident was being over crowded, PW8 S.I. Ganga Sagar Yadava collected the samples of blood stained and ordinary earth from the spot through a memo (Ext.ka 9) and after sealing both the samples and making an endorsement (Ext.ka 1A) on the back of the written report, sent them to the police station through constable Ram Adhar with the instruction to bring Jild panchayatnama etc. from the police station. S.I. Ganga Sagar Yadava then recorded the statements of PW1 Sheochand and his mother PW3 Smt. Salabia and formally arrested the six accused apprehended by the witnesses and villagers and also took their statements. Thereafter he sent the accused and the two injured of the prosecution side Sheochand and Smt. Salabia to the police station through Constable Sarvanand Singh, Jai Prakash Pandey and Banarasi. In the mean time Constable Ram Adhar returned back with the police paper. Thereafter S.I. Doodhnath Singh, who was not produced, took the inquest proceedings and prepared inquest report (Ext.ka 10), Challan Naash, Photo Naash and letter to C.M.O. (Ext. ka 11 to ka 13). The dead body of Deepchand was then sealed and was handed over to Constable Ram Adhar Singh and village Chaukidar Ram Briksh for being taken to mortuary for postmortem examination,

The post mortem of the dead body of the deceased was conducted by PW 5 Dr. P.C. Srivastava at 2 PM on 22.8.1981, who found the following injuries on the body of the deceased:

Age of the deceased about 30 years. The death had occurred about 3/4th day before. Rigour mortis present in upper and lower extremities.

Ante-mortem injuries:

Punctured wound, margins sharp, 5cm x 2cm x chest cavity deep, obliquely right side chest 7cm above right nipple at 2 O'' clock position.

Lacerated wound 3cm x 2cm x bone deep left side scalp, 8cm above left ear.

On internal examination, he found the membrances pale and 2nd rib of right side and body of sternum and its cartilage out. He also found trachea and bronchi punctured through and through and the pool of blood present in chest cavity. He also found avorta punctured anteriorly and semi digested rice and Daal present in the stomach. He found the large and small intestines full of faecal matters and gases. Gall bladder was half full. According to him the death of the victim had occurred due to shock and haemorrhage as a result of ante-mortem injury No. 1.

The two victims Sheochand and Smt. Salabia were medically examined by PW6 Dr. C.S.K. Rai, P.H.C. Mohammadabad, who found the following injuries on their persons:

Injuries of Sheochand examined on 22.8.1981 at 9 AM:

Lacerated wound 1cm x 1/4cm x bone deep on the front of nose 2cm below the right eye-brow with swelling. Suspected fracture of nosal bone. Advised x-ray.

Lacerated wound with abrasion 2cm x 1/4cm x muscle deep on the right side of nose 1cm below the right eye.

Lacerated wound 1cm x 1/2cm x muscle deep on the right side of face 4cm below and lateral from right eye.

Lacerated wound 2cm x 1 1/2 cm x muscle deep on the front side right of lower lip with swelling.

Abrasion 13 cm x 2cm on the front of chest obliquely 4cm below the right clavicle.

Contusion 3cm x 1 1/2cm on the front of right forearm 11 cm below the right elbow joint.

Injuries of Smt. Salabia examined on 22.8.1981 at 9.20 AM:

Lacerated wound 1/2 cm x 1cm x muscle deep on the right side of fore-head 6cm above the right eyebrow.

Lacerated wound 1cm x 1/4 cm x muscle deep on the right side of fore-head 5cm below the injury No. 1.

Contusion with abrasion 7cm x 3cm on the lower side of right eye with swelling around the eyes.

According to Dr. C.S.K. Rai (PW 6), the injuries Nos. 2 to 6 of Sheochand and both injuries of Smt. Salabia were simple and all the injuries of both the victims had been caused by some blunt object. He had kept injury No. 1 of Sheochand under observation and had opined that the injuries of both the victims were about 3/4th day old at the time of their medical examination.

PW 8 S.I. Ganga Sagar Yadav started investigation of the case on the same day and recorded the statements of Kishun, Mohan, Soyambar, Dharamdeo, Khedan and Ramkrit, who were not produced before the trial court. He thereafter inspected the place of occurrence and prepared a site plan (Ext.ka 14). He also visited the place of the first occurrence where Smt. Salabia had been beaten up and had found the Chhappar of Motichand having been damaged. He thereafter searched for the other accused, but could not succeed to arrest them as they could not be traced out. On 22.8.1981 he recorded the statements of Km. Urmila (not produced), Lachhmi Kalwar (PW 4) and some other villagers. He again searched for the accused Ram Chandar, Ram Bachan and Narendra, but could not be traced out, hence processes under Sections 82 /83 Cr.P.C. had been initiated. On 27.8.1981 he recorded the statement of Doodh Nath Upadhya and executed the processes issued against the absconding accused and on 28.8.1981 after completion of investigation, he submitted the charge sheet against the accused persons.

In order to prove its case, the prosecution has examined PW1 Sheochand, the informant and the victim of the incident, PW2 Mohan, an eye witness of the occurrence, PW3 Smt. Salabia, the mother of PW1 Sheochand, who had received injuries in the first incident, PW 4 Lachhmi Kalwar, at whose house Deep Chand (deceased) and Sheochand were at work on the fateful date of the incident, PW5 Dr. P.C. Srivastava, who had conducted the autopsy of the dead body of Deepchand, PW6 Dr. C.S.K. Rai, who had medically examined the injured Sheochand and Smt. Salabia, PW7 Ramji Pandey, under whose supervision the chick FIR of the case (Ext.ka 5) was prepared and PW8 S.I. Ganga Sagar Yadava, the Investigating Officer of this case. The prosecution has also filed a large number of documents, affidavits of Suryanath Misra, a Clerk of C.M.O. Office, Bhola Nath, a peon of C.M.O. Office and H.C. Sadho Singh Malkhana Moharrir, all formal witnesses.

All the accused-appellants denied the prosecution case and stated that they had been falsely implicated in the offence due to enmity.

After hearing the parties, vide impugned judgment and order, the trial Court convicted and sentenced all the accused appellants, asabove.

Against the said judgment and order, the present appeal has been preferred by the accused appellants.

We have heard Sri V.P. Srivastava, learned senior counsel for the accused-appellants and learned Addl. Government Advocate for the State and have also gone through the entire record.

Learned counsel for the accused appellants have challenged the conviction and sentence of the accused appellants on the grounds that the prosecution was not able to bring home the guilt of the appellants from the evidence, but the trial Court has illegally convicted and sentenced the accused-appellants. There are major contradictions in the statements of prosecution witnesses with the medical evidence. The medical version also does not support the prosecution story.

The questions arise for consideration are:

(i) Whether the prosecution has been able to prove that the deceased-Deepchand died homicidal death as a result of the injuries inflicted upon him during the fight?

(ii) Whether the prosecution has been able to prove that the accused-Ram Bachan committed murder of the deceased-Deepchand beyond reasonable doubt and the Trial court was justified in convicting him for such offence?

(iii) Whether the trial court was justified in convicting each of the accused-persons suitably for the offences alleged to have been committed by them?

(iv) Whether the conviction and sentences awarded needs modification or appropriate sentence has been awarded?

Firstly, we would like to decide first and second points. To prove its case, the prosecution has produced as many as eight witnesses. The trial court, while holding the accused persons guilty, mainly based its judgment on the evidence of P.W.-1, Sheochand, the real brother of the deceased. Sheochand, P.W.-1, in his evidence has stated that after Chakbandi, certain piece of land has been given on Patta to him and his deceased-brother, Deepchand, and the other brother-Motichand, which has been possessed by them after demarcation and the said land was continuing in their possession since 1974. Said land was being used by them as the Abadi land on which they have raised Chappar. On the date of the incident, when they were performing labour work at the place of one Laxmi Kalwar, at about 5:00 PM, my niece (brother''s daughter), namely, Urmila, came and informed us that accused-persons had beaten grand mother (Aazi) and demolished the hut (Chappar) on being asked by the mother not to do so, the accused-persons beaten the mother also. On returning to home, when we (myself and deceased-brother) were going to accused-Kedar''s house to make the complaint, the accused-persons, namely, Shiv Nath, Ram Bachan, Narendra, Shiv Bachan, Kedar, Mangla, Ramchandra, Smt. Munia, and Ram Kishun attacked us by blowing Lathis (Club) and spears (Ballam) and when we made noise some other villagers reached at the place of incident. Accused-persons, namely, Ram Bachan and Narendra were carrying spears. Accused-Ram Bahcan inflicted injury in the chest of my deceased-brother, Deepchand by inserting spear as a result of which deceased-Deepchand fell down and died on the spot. Reacting to it, I also after snatching the Lathi (Club) from the hands of Munia and defended myself from the blow of spear made by accused-Narendra upon me. Therefore, I only sustained only injuries of Lathi (Club). My deceased-brother, Deepchand, sustained injuries of spears and Lathi (club) both. P.W.-1, Sheochand in his evidence, had stated that accused-Munia was exhorting the accused persons. However, it is to be noted that, PW-1, Sheochand, real brother of the deceased-Deepchand and an eye-witness of the incident, in his evidence, had also admitted that accused persons also sustained injuries of Lathi (Club) blown by me. He further stated that after the incident, the accused-persons, Ram Chandra, Narendra and Ram Bachan could not be caught on the spot, but other accused persons have been caught by the villagers present.

From the evidence of the PW-1, Sheochand, it appears that the fight broke out on the incident of demolition of the Chappar (hut) over the land in dispute and it is also clear that the land dispute was going on in the civil court since long, which ultimately resulted in this fatal incident.

It is also to be taken note of that to support the prosecution story that the fight broke out on the fateful day of the incident of Chapper (hut) being demolished by the accused-persons, no strong reason has been given that as to why on the day of the incident the accused-persons demolished the Chapper (hut) when the dispute of the land was already going on since long in the civil Court coupled with the fact that it has not come any where in the prosecution''s story that on the said fateful day of the incident, any altercation, brawl or any other dispute took place prior to fight broke out, which led to such fateful fight between the rival parties.

In the cross-examination of P.W-1, Sheochand, it has also been admitted by P.W-1, Sheochand that he alongwith other persons, while going to the house of accused-Kedar, was abusing the accused-persons and in the midway, both the rival parties faced each other as a result of which incident of such fight broke out.

The other contradiction in the evidence of PW-1, Sheochand, is that in the cross examination, he stated that accused-persons, Shivnath and Kedar also sustained injuries as a result of police beating not by his blows of Lathi whereas in his statement, he stated that as a result of his blows of Lathis, Shivnath and Kedar also sustained injuries. It clearly goes to show that both the parties were involved in a fierce fighting with each other due to an old dispute of a piece of land as a result of which the incident occurred.

Therefore, from the evidence/statement of the P.W.-1, Sheochand, it can be safely held that as a result of old dispute over a certain piece of land, fight broken-out between the rival parties in which both the parties used Lathis (Clubs) and other objects and accused-persons as well as the victims both sustained injuries and as a result of such injuries, deceased-Deepchand, subsequently died.

It is also clear from the evidence/statement of the, PW-1, Sheochand that the accused-Ram Bachan, who is alleged to have pierced spear in the chest of the deceased-Deepchand, could not be caught on the spot. Thus, from the evidence of P.W-1 itself it is clear that the accused-Ram Bachan, like other accused-persons, was not caught on the spot of the incident and as such it cannot be safely said that as a result of blow of spear made by him, the deceased-Deepchand died.

P,W,-2, Mohan, in his statement has only stated that there was a civil dispute over the land, between him and the accused-appellants, which was going on since long in the civil court, however, the accused persons have never created any disturbance over his land.

P.W.3, Salabia, mother of the deceased-Deepchand, in her evidence/statement, has stated that the accused persons demolished our Chappar and on being prohibited, accused persons hit me by Lathi (Club). She in her evidence has stated that her sons, namely, deceased-Deepchand and Shivchand-injured did not come to home on the day of incident. She stated that her daughter-in-law, namely, Urmila, told her that deceased-Deep Chand, had been murdered in the way, while returning to home. On being told so, when I went on the spot of the incident, I also saw dead body of Deep Chand.

In her evidence, P.W-3, Salabia, mother of the deceased-Deepchand, had no where stated that she witnessed the killing of her deceased son, Deepchand, by the accused-Ram Bachan, by piercing spear in his chest, as has been stated by P.W.-1, Sheochand in his statement, nor she was present on the spot. She made the statement before the Court on the basis of the information received from her daughter-in-law. Therefore, the evidence/statement of the P.W.-1 is not corroborated by the evidence of P.W.-2, Salabia, the mother of the deceased-Deepchand.

In the evidence, P.W.-4, Laxmiram, stated that the deceased-Deepchand was working as a mason in the construction of his house, when he was raising construction of his house, and Shivchand was working as a labour. At about 05:30 PM, Deepchand came to me and requested for leave as a fight broke out at his residence, however, Deep Chand did not tell that who informed him about the fight at the residence.

In the evidence of P.W.-4, nothing concrete came out except the information about the fight and the request for leave made by the deceased-Deepchand.

Fifth prosecution''s witness (P.W-5) was Dr. P.C. Srivastava, who examined the dead body of the deceased-Deepchand and conducted post-mortem. In his Post mortem report, P.W-5 had observed that the deceased-Deepchand died due to the injuries caused by the Lathi (Club) and spears.

The sixth prosecution''s witness (P.W-6) was Dr. C.S.K. Rai, Incharge Chief Medical Officer, Primary Health Centre, Centre Mohammadabad, who has examined the injured Sheochand and Smt. Salabia on 22.8.1981 and proved their medical reports, respectively.

The seventh prosecution''s witness (P.W-7) was Head Constable Ramji Pandey, who at the relevant time was posted as Head Moharir, Police Station Karimuddinpur, District Ghazipur, who scribed the First Information Report on the basis of the written complaint handed over to him by Shivchand (PW-1).

Eighth witness (P.W.-8) produced by the prosecution was Ganga Sagar Yadav, the then Station Officer, Police Station Karimuddinpur, District Ghazipur. P.W-8 in his evidence had stated that the accused persons, namely, Kedar and Shivnath also sustained some injuries, however, he did not ask for their medical examination. He recorded the statement of accused-Kedar, who denied of attacking the rival party at their residence. However, it is wrong to say that the accused-appellants had asked to lodge a cross First Information Report. PW-8, in the evidence, falsified the evidence of PW-1 (Shivchand) that PW-1 handed over baton (Danda) to him (P.W.8), which had been used by P.W-1 in his defence.

On the other hand, accused persons also produced some witnesses in support of their case. DW-1, Satyandra, in his evidence had stated that the deceased-Deepchand and injured Shivchand, alongwith others, carrying spear and Lathis came to the residence of Shivnath and started abusing him and on hearing the noise, when Kedar came out of his house and asked from them that what happened they started beating Kedar by saying that he had crossed his limit.

DW-2, Moti Lal, in his evidence, also stated that deceased-Deepchand and injured Shivchand, alongwith others, carrying spear and Lathis came to the residence of Shivnath and started abusing him and on hearing the noise, when Kedar alongwith Shiv Nath, came out of their house and asked from them that what happened they started beating them by abusing and saying that they had crossed limit. On being attacked, the accused-persons did not run away, they also started fighting and attacking the other party in which deceased-Deepchand sustained injuries and fell down.

In the evidence, P.W.-1, Shivchand, made a statement to the effect that when he alongwith deceased-Deepchand, were going to the home of accused-Kedar, to enquire about the incident of demolition of Chappar (Hut) and assault on their mother, the accused-persons, who were assembled, attacked them. PW-1 also stated that the accused-persons Ram Bachan and Narendra were carrying spears and accused-Ram Bachan inflicted injury of spears on the chest of deceased-Deepchand as a result of which he fell down and died on the spot. However, P.W-1 in his statement has also admitted that he also blown lathi (club) on the accused persons as a result of which the accused persons also sustained injuries, but the lathi was blown by him in order to defend himself.

From the evidence of the evidenced of P.W.-1, it appears that although the accused-persons assembled there, but it is clear that there was no common object to commit murder of the deceased-Deepchand. The incident was neither premedated nor there appears to be such motive to kill any one. In the evidence, it has also come that the P.W.-1 also attacked accused-persons by snatching Lathi (Club), though claimed the attack was made in order to defend himself to ward off attacks made by the accused persons. But, it is natural that any interested witness will give such evidence in order to prove his case.

Further, the injuries sustained by the P.W.-1 also goes to show that the injury was caused to him was due to blow of Lathi (Club) and it has also been stated by PW-1 that he also attacked accused persons and the accused persons also sustained injuries as a result of such attack.

P.W.-2, Mohan, who is said to be an independent witness, in his evidence, to some extent corroborated the evidence of P.W-1, but, in the evidence of P.W.-2 it has also come that both the rival parties were involved in the fight. In the evidence of P.W-2, it has come that the deceased-Deepchand and P.W-1, Shivchand were running towards the home of the accused persons and on reaching there, they have been attacked by the accused persons. It is natural reaction that when one party would provoke or proceed to attack the other side, and where there is longstanding enmity, the other side would instantly react. That is what has happened in the present case as a result of which one person, namely, Deep Chand, the deceased, died during the course of the action and reaction. Whatever has happened, which resulted in the death of the deceased-Deepchand, has happened as result of incident which happened in the spur of the moment, which at best can be taken as an act which has been done with the knowledge, but without there being any premeditation or motive to kill any one and as such the offence committed by the accused-Ram Bachan, can, at best be held to have been committed under Section 304 , Part I, IPC, and, therefore, the punishment of awarding sentence to accused-Ram Bachan be requires to be reduced accordingly.

In a fight over a piece of land, as a result of rivalry, between two rival parties, with the civil dispute going on since long, the possibility of such a fight, causing injuries to the persons of both the parties, involved in the fight, is always there, but none of the persons, involved in such fight, would think that as a result of blow of a lathi or spear, one would die. Therefore, from the evidence brought on record, in the case in hand, it can be safely inferred that the intent of accused-Ram Bachan was not to kill deceased-Deepchand. Therefore, at best Ram Bachan would have been tried, under Section 304 , Part I, of the Indian Penal Code (IPC).

Thus, we find that the intention of the accused-appellant Ram Bachan, who was also convicted for Life imprisonment under Section 302 IPC to kill the deceased Deepchand, has not been proved beyond a reasonable doubt and in any case the accused-appellant Ram Bachan is entitled to some leniency in awarding punishment of imprisonment for life. Instead of life imprisonment, he may be awarded punishment for some lesser period. It is not possible therefore to sustain the sentence under Section 302 of the IPC, which requires that the act by which death is caused, must be done with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death. Though it is not possible to attribute intention it is equally not possible to hold that the act was done without the knowledge that it is likely to cause death. Here, the case appears to be that in a dispute over a small piece of land, a fierce fight broke out, in which persons from both the rival parties, sustained injuries, some simple injuries and some grievous injuries and as a result of such grievous injuries, one person of one party died. Therefore, in such an incident of fight, motive, of none of the accused-persons, cannot be attributed to kill the injured person. At best the incident can be treated to have occurred due to an old dispute over a small piece of land, which all of a sudden, broken-out on the demolition of the Chappar of the victims and on the alleged beating of their mother on the objection being raised by mother. From the evidence brought on record, it can safely be inferred that the incident has occurred not as a result of pre-planned attack. The incident occurred in the spur of moment for which both the rival parties can be held to be responsible and as such the question No. (iii) is answered in negative and it is held that the trial court erred in awarding conviction, which was rather on higher side, and as such the question No. (iv) is also being in negative. The conviction awarded by the trial court requires modification, which is being modified by this Court. The overt act of Ram Bachan could at best be treated the offence having been committed under Section 304 , Part I of the IPC.

In the case of Sevaka Perumal, etc. Vs. State of Tamil Nadu, , the Apex Court in the matter of awarding proper sentence to the accused in a criminal trial has cautioned the Courts as under:

"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."

In the case of State of Madhya Pradesh Vs. Ghanshyam Singh, a division bench of the M.P. High Court converted the conviction of Ghanshyam Singh from 302 IPC to 304, Part-I IPC and awarded custodial sentence of 2 years. It was observed by the Apex Court that lesser sentence should not be imposed merely on the ground of long pendency of matter. In that case, it was further observed that two years'' custodial sentence for the offence under Section 304 , Part-I, IPC was not proper and the sentence was enhanced to six years.

In the case of Dhananjay Chatterjee alias Dhana Vs. State of W.B., , this Court has observed that shockingly large number of criminals go unpunished thereby increasingly, encouraging the criminals and in the ultimate making justice suffer by weakening the system''s creditability. The imposition of appropriate punishment is the manner in which the Court responds to the society''s cry for justice against the criminal. Justice demands that Courts should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime. The Court must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering the imposition of appropriate punishment. Similar view has also been expressed in Ravji alias Ram Chandra Vs. State of Rajasthan, . It has been held in the said case that it is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. 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 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". If for extremely heinous crime of murder perpetrated in a very brutal manner without any provocation, most deterrent punishment is not given, the case of deterrent punishment will lose its relevance.

In a case of assault between two groups in regard to the right to bid for certain shamlat land, consequent to which two persons died due to the injuries suffered in the attack, the trial Court held that sentence of 8 years with a fine of Rs. 1,000 each would serve the ends of justice. This sentence was reduced by the High Court to a period of 5 years. The Supreme Court held that the sentence awarded by the High Court was reasonable. [Vide - Tarsem Singh and Others Vs. State of Punjab, ].

Having regard to the injuries inflicted upon the body of the deceased, which ultimately resulted in the death of the deceased, we are of the view that the accused persons, themselves would neither have anticipated nor the knowledge of death of the deceased by the injuries inflicted upon the deceased by the blow of lathis (Club), except Ram Bachan, who though has inflicted injuries on the deceased by spears, but he also would not have anticipated the death of the deceased by his act. Therefore, their motive cannot be said to be of inflicting such injuries to the deceased, which may ultimately result in death of the deceased.

Thus, in view of the discussions made above, in modification of the punishment imposed by the Trial court on the accused persons, namely, Ram Bachan, Narendra, Sheo Bachan, Ram Chander and Ram Kishun, we are of the view that all the accused- persons, except Ram Bachan, can at best, be held guilty of offences under Section 149 read with Section 326 of the Indian Penal Code. Our view finds support from the decision of this Court in the case of Raghubir Singh Vs. State of Uttar Pradesh and Others wherein this Court in paragraphs 23 & 24 held as follows:

"23. In the present case, we have seen that none of the individual injuries actually inflicted could be said to be sufficient in the ordinary course of nature to cause death, though the proposition cannot be disputed that the death had resulted due to the injuries inflicted. But we find all the injuries except one landed on non-vital parts of the deceased''s body. The injury on the head is also only scalp deep, and has not caused any internal damage. Even the injury which was imputed to the spear wielded by the appellant Raghubir was on the lower part of the upper arm, although there was a fracture of an underlying bone. But there was no effort to repeat that injury. Two other injuries were on the right arm and were a lacerated wound and a contused traumatic swelling. There was a contusion with a swelling over the right forearm, under which there was a fracture of a bone. The last injury was also a contusion with a swelling on the left thigh, under which the bone was broken.

No attempt was made to assault the deceased on his chest, or to make any other assault on the head or other vital part of his body. From a perusal of the injuries, at least this could be inferred as indicated above, that there was no intention to cause the death of the deceased or even to cause any fatal injury to the deceased, though there could have been a common intention to cause grievous injuries to the deceased, which had in fact been caused."

The question No. (i) & (ii), thus, is answered in negative.

Now we take up the case for determination of points No. 3rd and 4th. From the discussions made herein above, it may be said that the trial Court has committed error in law in awarding the aforesaid conviction and sentence for life and therefore, sentences imposed on the accused appellants needs modification.

In the present case, we are of the view that the accused-appellant Ram Bachan is guilty of committing the act which caused the death of the deceased Deepchand since the act was done with the knowledge i.e. it is likely to cause death within the meaning of Section 304 Part-I of the IPC.

In the circumstances, the appeal is allowed in part, however, we reduce the sentence imposed upon the accused-appellant Ram Bachan to a period of 8 (eight) years under Section 304 Part-I of I.P.C.

So far as the other accused-appellants, namely Narendra, Shiv Bachan, Ram Chandra and Ram Kishun are concerned, the sentence of five years'' R.I. imposed upon them under Section 326 /149 IPC is reduced to three years'' R.I. The sentences awarded to all the accused appellants under other sections are not being interfered with. However, the sentences awarded to each of the accused appellants shall run concurrently. The accused persons, however, will be entitled for setting off the period of detention, if any, already undergone against the sentence of imprisonment, awarded, as provided under Section 428 of the Code of Criminal Procedure, 1973.

Accordingly, the judgment and order dated 21st of March, 1983 passed by the IV Addl. Sessions Judge, Ghazipur in Sessions Trial No. 114 of 1982 (State vs. Kedar & others) convicting and sentencing the appellants, as aforesaid, is modified to extent, indicated above. Since the appellants are on bail, the Chief Judicial Magistrate, Ghazipur is directed to take the appellants into custody and send them to jail for serving out the sentence as awarded by this Court.

The Office is directed to communicate this order to the C.J.M. concerned for compliance within a period of one month.