UGGARSAIN versus THE STATE OF HARYANA & ORS. on 3 July 2023

1. These appeals, by special leave, arise from the judgment andorders[1] passed by the High Court of Punjab and Haryana[2], convertingFthe decision of conviction given by the trial court from Section 302 of theIndian Penal Code, 1860 (hereafter “IPC”) to Section 304-Part II IPC.These appeals have been preferred by the informant/complainant.

2. The prosecution alleged that on the eve of Holika Dahan, i.e.,07.03.2012, Krishan (A-1) abused Subhash (the deceased). On the nextGday, Brahmjit, son of Krishan (A6), inflicted danda blows upon Subhashat about 10.00/11.00 AM. Due to this, at about 3.00 PM, whenPawan, Uggarsain and Subhash (deceased) were sitting in front of theirhouse, Brahmjit came near their house and started abusing them, which 1 Dated 27.08.2019 and 03.09.2019.H2 In Criminal Appeal bearing No. 249 DB of 2016

aggravated the situation. Thereafter, all the accused, namely Raju, sonof Krishan (A2), Krishan, Parveen (A3), Sunder- son of Amit(A4), Sunder-son of Rajpal (A8), Nar Singh (A-7), Sandeep (A-5) andothers reached the spot, with weapons. Raju inflicted blow on the rightshoulder of Sita Ram (PW1). Krishan inflicted a blow at the back of SitaRam with an iron pipe and Brahmjit inflicted a farsa blow on the right ofSita Ram’s head. Sunder was armed with a rod; Nar Singh and Sandeepwere carrying farsas with them. They caused injuries on Pawan,Uggarsain and Subhash. The injured were taken to hospital.

3. On 09.03.2012, on the receipt of intimation, the police registeredthe case under Sections 147, 148, 149 and 323 IPC. Subash, who wasgravely wounded, having received multiple injuries, was removed to thehospital; later, a surgery too was performed on him. However, he did notsurvive and passed away on 12.3.2012. Thereupon, Section 302 IPCwas added in the FIR, on 13.3.2012. Postmortem was conducted, andthe doctor (PW5- Dr. Kunal Khanna) recorded in the post-mortem reportthat the death was caused by injuries sustained by the deceased on thehead and its attendant complications. The police arrested the accused.Later, weapons were recovered on the basis of disclosure statementsmade by them. On the statement of PW1-Sita Ram, the prosecutionmoved an application under section 319 of the Criminal Procedure Code(hereafter “Cr.P.C.”) for summoning an additional accused, namelySunder.

4. All the eight accused persons were charged with and tried foroffences punishable under Sections 148, 323 and 302 read with section149 IPC. The prosecution examined twenty-two witnesses and recordedtheir deposition. PW.3- Dr. Sant Lal Beniwal did medico-legal examinationof Sita Ram (PW1), Uggarsain (PW2) and Pawan. He recorded differentinjuries caused on the complainants’ bodies and stated that the probableduration of injuries was within six hours by blunt weapon. PW8- Dr.Pradeep Kumar stated that Subash (deceased) had received only oneinjury. PW4- Dharmender Singh prepared the site plan. The defenceexamined two witnesses. DW1-Bikram Singh deposed that he wasauthorized to produce, and accordingly brought a computerized attendanceregister stating that on 8.3.2012 (the day of the incident), one accused,i.e., Parveen Parmar had performed his duties as a security guard from7.00 AM to 7.00 PM. DW2- Dr. Naresh Kumar, who had medico legallyexamined the accused Krishan and Brahmjit and recorded a fracture of AB

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Athe right clavicle bone of Krishan and a nasal bone fracture of Brahmjit,also deposed in favour of the defence.

5. The trial court held that all the accused persons reaching thespot together armed with weapons and their attack on the victims,including the deceased exhibited the intention of an unlawful assembly,Bto inflict deadly injuries. The nature of injuries found on the deceasedindicated common intention of the assembly extended to causing death,which in fact, occurred. The trial court held that the prosecution’s inabilityto explain the injuries on the accused did not absolve them of their role inthe attack and causing the death of Subhash, because the evidence reliedon was credible. The evidence of two witnesses consistently supportedCthe prosecution case in their statements before the police as well as incourt. Their testimonies were corroborated by medical evidence. Thetrial court[3] convicted all the accused as charged and sentenced them torigorous imprisonment for life under Section 302 r/w Section 149 IPCand one-year’s rigorous imprisonment under Section 148 IPC; six monthsDrigorous imprisonment for the offence under Section 323 read with Section149 IPC.

6. The accused appealed to the High Court, which by the impugnedjudgment, partly allowed their pleas and converted their convictions underSection 302 read with 149 IPC to Section 304 Part II read with SectionE149 IPC. It, however, affirmed the convictions under Section 148 andSection 323 read with Section 149 IPC. The High Court observed thatthe lack of explanation of injuries received by Krishan and Bharmjitundermined the prosecution story and that Subash, the deceased, hadreceived only one injury, according to PW.8- Dr. Pardeep Kumar. Finally,Fthe High Court held that the case fell under Exception 4 to Section 300IPC, as tempers were running high between the parties, and a suddenfight occurred when the complainant party reached in front of Krishan’shouse, which meant that the accused did not act in a pre-meditatedmanner. Aggrieved, the informant Uggarsain appealed to this court,against the conversion of conviction and corresponding reduction ofGsentence.

7. During the hearing, this court indicated that these appeals wouldbe confined to the extent of appropriateness of sentences undergone by 3 Judgment dated 11.02.2016 and order dated 17.02.2016, in Sessions Trials No. 160 ofH30.07.2012, 275 of 04.12.2012 and 114 of 15.04.2013.

different accused persons for causing the same offence. The differentperiods undergone by convicts are: Krishan had undergone 09 years, 05months and 04 days of imprisonment with remissions; Raju underwent03 years, 01 month and 01 day of imprisonment; Parveen had suffered01 year, 11 months and 27 days of imprisonment; Sunder s/o Amit Lalhad undergone 02 years and 05 days of imprisonment; Sandeep hadundergone 01 year, 11 months and 12 days of imprisonment; Brahamjithad undergone 08 years, 11 months and 19 days of imprisonment (includingremissions); Nar Singh had undergone 01 year and 04 months ofimprisonment and Sunder s/o Rajpal had undergone 11 months and 16days of imprisonment.

8. The appellants argued that the High Court was wrong in inferringthat the injuries were caused due to a sudden fight. Counsel highlightedthat the accused who were convicted concurrently, had deliberately gonenear the informant/victims’ house to cause deadly injuries- in fact, oneof the informant parties died as a consequence. Having regard to theestablished facts, the object of the assembly was for use of such force,which resulted in death. Therefore, the sentencing in the present casehad to be fit and appropriate, and the impugned judgment gravely erredin adopting the standard of sentence undergone, which resulted in widelydifferent and disparate results. At one end of the spectrum, one of theaccused (Sundar s/o Rajpal) suffered incarceration for a little over 11months, whereas Krishan had undergone 09 years, 05 months and 04days. The appellant informants urged that this court should adopt asomewhat uniform sentencing standard when the role of each accusedwas practically indistinguishable.

9. On behalf of the accused, it was pointed out that the HighCourt had, in fact, gone by the salutary principles indicated by thiscourt, in that the relative ages of the accused, their familycircumstances, the length of time they spent in custody, as well as thelength of time that had elapsed since the commission of the crime, allwere considered.

10. This court has, time and again, stated that the principle ofproportionality should guide the sentencing process. In Ahmed HusseinVali Mohammed Saiyed v. State of Gujarat,[4 ]it was held that thesentence should “deter the criminal from achieving the avowed object 4 2009 [8] SCR 719

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Ato (sic break the) law,” and the endeavour should be to impose an“appropriate sentence.” The court also held that imposing “meagresentences””merely on account of lapse of time” would becounterproductive. Likewise, in Jameel v. State of U. P.,[5] while advocatingthat sentencing should be fact dependent exercises, the court alsoemphasised that “the law should adopt the corrective machinery orBdeterrence based on factual matrix. By deft modulation, sentencingprocess be stern where it should be, and tempered with mercy whereit warrants to be. The facts and given circumstances in each case,the nature of the crime, the manner in which it was planned andcommitted, the motive for commission of the crime, the conduct ofCthe accused, the nature of weapons used and all other attendingcircumstances are relevant facts which would enter into the area ofconsideration.”

11. Again, in Guru Basavaraj v. State of Karnataka,[6] the courtstressed that it “is the duty of the court to see that appropriateDsentence is imposed regard being had to the commission of the crimeand its impact on the social order” and that sentencing includes“adequate punishment”. In B.G. Goswami v. Delhi Administration[7],the court considered the issue of punishment and observed that punishmentis designed to protect society by deterring potential offenders as well asprevent the guilty party from repeating the offence; it is also designed toEreform the offender and reclaim him as a law-abiding citizen for thegood of the society as a whole. Reformatory, deterrent and punitiveaspects of punishment thus play their due part in judicial thinking whiledetermining the question of awarding appropriate sentences.

12. In Shyam Sunder v Puran & Anr[8], the accused-appellantFwas convicted under Section 304 Part I IPC. The appellate court reducedthe sentence to the term of imprisonment already undergone, i.e., sixmonths. However, it enhanced the fine. This court ruled that sentenceawarded was inadequate. Proceeding further, it opined that: - “... Thecourt in fixing the punishment for any particular crime should takeinto consideration the nature of the offence, the circumstances inGwhich it was committed, the degree of deliberation shown by theoffender. The measure of punishment should be proportionate to 5 2009 [15] SCR 7126 2012 [8] SCR 1897 1974 (1) SCR 222H8 1990 Suppl [1] SCR 662

the gravity of the offence. The sentence imposed by the High Courtappears to be so grossly and entirely inadequate as to involve afailure of justice. We are of opinion that to meet the ends of justice,the sentence has to be enhanced...”. This court enhanced the sentenceto one of rigorous imprisonment for a period of five years. This courthas emphasized, in that sentencing depends on the facts, and the adequacyis determined by factors such as “the nature of crime, the manner inwhich it is committed, the propensity shown and the brutalityreflected” [Ravda Sashikala v State of Andhra Pradesh[9]]. Otherdecisions, like: State of M.P.v. Bablu[10]; Raj Kumar[11 ]and State of Punjabv. Saurabh Bakshi[12] too, have stressed the significance and importanceof imposing appropriate, “adequate” or “proportionate” punishments.

13. In the present case, the High Court noted the respective agesof the accused-i.e., Krishan (61 years); Raju (40 years); Parveen (32years); Sundar (39 years); Sandeep (25 years); Nar Singh (41 years)and Sunder s/o Rajpal (36 years). The court noted that Bramhajit hadserved in the army. Apart from these, the court noted the relative familycircumstances: the number of children each accused had. It then adopteda uniform rule, i.e., the period of sentence undergone by the accused, asthe appropriate sentence.

14. As noted earlier, all the accused were found concurrently guiltyunder Section 148 IPC; they were armed with different kinds ofimplements and weapons, that were capable of inflicting deadly injuries.The postmortem report of Subhash revealed at least six serious headinjuries, including fracture and haemorrhage in different places. Pawan,Uggarsain and Sita Ram, others from the complainant party alsoconcededly suffered injuries. Though the High Court was of the opinionthat no explanation was given by the prosecution about the injuries onthe accused, their nature does not seem to have been serious. At anyrate, the court did not find that sufficient reason to upset the sentenceunder Section 149 read with Section 304 II IPC.

15. The sentencing in this case, to put it mildly, is inexplicable (ifnot downright bizarre). On the one hand, Krishan underwent sentencefor 9 years 4 months- at the other end of the spectrum, Sunder s/o 9 2017 [2] SCR 37910 2014 [9] S.C.R. 46711 2013 (5) SCR 97912 2015 (3) SCR 590

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ARajpal underwent only 11 months. No rationale appears from thereasoning of the High Court for this wide disparity. It is not as though thecourt took note of the role ascribed to the accused (such a course wasnot possible, given the nature of the evidence). If it were assumed thatthe age of the accused played a role, then Krishan, at 61 years- whoBserved 9 years and Brahmajit, who had served in the army, and wasdetained for over 8 years got the stiffest sentence. On the other end ofthe scale, younger persons were left relatively unscathed, having servedbetween 3 years and 11 months.

16. The impugned judgment, in this court’s opinion, fell into errorCin not considering the gravity of the offence. Having held all the accusedcriminally liable, under Section 304 Part II read with Section 149 IPCand also not having found any distinguishing feature in the form ofseparate roles played by each of them, the imposition of the “sentenceundergone” criteria, amounted to an aberration, and the sentencing isfor that reason, flawed. This court is, therefore, of the view that givenDthe totality of circumstances (which includes the fact that the accusedhave been at large for the past four years), the appropriate sentencewould be five years rigorous imprisonment. However, at the same time,the court is cognizant of the fact Krishan and Bramhajit served morethan that period. Therefore, the impugned judgment, as far as they areEconcerned, is left undisturbed. Consequently, the sentence of Raju,Parveen, Sunder s/o Amit Lal, Sandeep, Nar Singh, and Sunder s/o Rajpalis hereby modified; they are hereby sentenced to undergo RigorousImprisonment for five years. They shall surrender and serve the rest oftheir sentences within six weeks from today.F17. The appeals are partly allowed, in the above terms. No costs.

17. The appeals are partly allowed, in the above terms. No costs.

Ankit Gyan(Assisted by : Kritika and Aarsh Choudhary, LCRAs)

Appeals partly allowed.

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