1. Leave granted.
2. This appeal is directed against the judgment and order dated 09.09.2022 in CRA (DB) 4 of 2022, whereby the Division Bench of the High Court of Judicature at Calcutta has modified the judgment of conviction dated 22.12.2021 and order of sentence dated 23.12.2021, as passed by Additional Sessions Judge, Special Court (EC Act), Alipore in Sessions Trial Case No. 02 (09) 2001 arising out of Sessions Case no. 71 (01) 2001 corresponding to Chitpore Police Station Case No. 324 of 1999, whereby the appellant was convicted of the offence under Section 302 of the Penal Code, 1860 (for short, ‘IPC’) and was sentenced to suffer rigorous imprisonment for life; to pay a fine of Rs. 10,000/-; and in default, to suffer simple imprisonment for a period of six months. The High Court modified conviction to that of the offence under Section 304 Part-II IPC and reduced the substantive sentence to that of rigorous imprisonment for a period of ten years and also directed to pay a fine of Rs. 50,000/-; and in default, to suffer further rigorous imprisonment for a period of one year.
3. Shorn of unnecessary details, the prosecution case has been that on 29.09.1999, at around 23 : 05-23 : 15 hours, Narayan Chandra Roy, a Constable (informant - PW-2), after his duty hours, changed into plain clothes and boarded a Double Decker Trolly Bus bearing no. WB-04/2145 for reaching his destination at Dunlop Police Quarters from Shayambazar Crossing. After boarding, he noticed an altercation taking place on the first floor of the bus between some passengers including the appellant and Surendra Prasad Gupta (‘the deceased’/‘the victim’), who was also a coresident of Shaymbazaar Police Quarters. He noticed that those passengers were trying to assault the deceased so he intervened and tried to resist. However, two passengers and the appellant abused and assaulted both of them. The appellant ultimately kicked the deceased, who was standing on the steps, out of the bus with force; and as the deceased tried to catch hold of the T-shirt (‘genji’) of the informant, both of them fell down from the running bus. The deceased sustained severe head injuries and was taken to R. G. Kar Medical College and Hospital, Kolkata by the informant, where he was admitted and the informant was discharged after primary treatment.
4. The informant thereafter visited Chitpore Police Station, where his statement was recorded and PS Case No. 324 of 1999 dated 30.09.1999 was registered for offence under Section 307/34 IPC. Thereafter, the Investigating Officer visited the hospital to record the statement of the said victim but, he remained unconscious and ultimately succumbed to his injuries at about 2 : 45 a.m. The post-mortem examination (by PW-11) revealed the cause of death to be head injuries. The case was then converted to the offence punishable under Sections 302/34 IPC. In the midst of investigation, the case was transferred to Detective Department, Lalbazar. The Investigating Officer seized a lost property from the bus, which led to the identification of the appellant and ultimately to his arrest on 02.11.1999. The informant attended test identification parade and identified the appellant by touching his body and stated before the Judicial Magistrate (PW-10) that it was the appellant who pressed his neck, slapped him, threw fists and blows and pushed him to the first floor of the bus, with the help of two other passengers. He further stated that after slapping him, the appellant started assaulting the deceased, who was right behind the appellant, and when both, he and the deceased were going down the staircase from the first floor of the bus, the appellant kicked the deceased on his leg, causing him to fall. However, while falling, the deceased caught hold of the informant's genji and both of them fell out of the running/moving bus.
5. The charge-sheet was submitted on 02.11.2000 against the appellant for offences under Sections 302, 307, 326, 34 IPC. The Additional Chief Judicial Magistrate, Sealdah committed the case to the Court of the Sessions Judge, South 24 Praganas who, thereafter, transferred the case to the Court of Additional Sessions Judge, Special Court (EC Act) for trial.
6. After framing charges against the appellant, the prosecution examined a total of 13 witnesses and produced the necessary documents. The appellant was examined under Section 313 of the Criminal Procedure Code, 1973 where he pleaded innocence.
7. In its judgment dated 22.12.2021, after appreciating the oral and documentary evidence, the Trial Court held that the prosecution had been able to conclusively prove its case against the appellant, making it a clear-cut case of murder. The Trial Court, accordingly, convicted the appellant of the offence under Section 302 IPC. Thereafter, by its order dated 23.12.2021, the Trial Court awarded the punishment to the appellant of rigorous imprisonment for life together with fine in the sum of Rs. 10,000/-and in default of payment of fine, to suffer simple imprisonment for a period of six months.
8. In the appeal preferred by the appellant against the judgment of conviction and order of sentence aforesaid, the High Court, in its impugned judgment and order dated 09.09.2022, modified the conviction of the appellant to that of the offence under Section 304 Part-II IPC and reduced the sentence to that for a period of ten years and also directed him to pay a fine of Rs. 50,000/- and in default, to suffer rigorous imprisonment for a period of one year.
9. The High Court examined the relevant evidence on record and affirmed the findings of the Trial Court that the appellant was guilty of killing the victim while particularly relying on the testimony of PW-2. The High Court, inter alia, observed as under:—
“28. Evidence of an injured, as per settled law, must be given due weightage being a stamped witness, thus, his presence at the scene of crime cannot be doubted. His statement is generally considered to be very reliable, and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. From that point of view appellants objection to procedural irregularities such as, in our view, non-examination of public witness and non-production of any document to prove the link between recovered bag and the appellant, does not make any difference to the prosecution case. In fact, the testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence.
29. In view of above, it is difficult to comprehend the circumstances in which the charge of killing Surendra Prasad Gupta (victim of this case) against the accused/appellant cannot be leveled. Thus, learned Judge has rightly found the appellant guilty of killing Surendra Prasad Gupta.”
10. The High Court held that in the instant case, the appellant possessed the knowledge of the fatality of his action but then, sudden provocation and fighting suppressed the element of intention. The High Court, therefore, proceeded to alter the conviction of the appellant to that of the offence of culpable homicide not amounting to murder under Section 304 Part-II IPC and proceeded to modify the sentence accordingly. The High Court observed and held as under:—
“32. In our case, there was an incident of altercation and assault between the appellant and victim. In course of altercation injured (PW-2) intervened but appellant assaulted both of them and ultimately kicked the victim to throw out of the bus. As a result, both the injured and victim fell down from the bus and victim succumbed to his head injuries on the next day at R.G. Kar Medical College and Hospital.
33. Therefore, fact before us does not lead us to any doubt that the appellant did have knowledge of the fatality of the injury after falling down from the running bus but the sudden provocation and fighting suppressed the element of intention. Thus, in our view, benefit of Section 304 part II ought to have been accorded by the learned trial Court.
34. For the reason recorded above, the conviction of the appellant under Section 302 of IPC is modified as conviction under Section 304 part II of IPC and substantive sentence of life imprisonment is reduced to sentence of rigorous imprisonment for 10 years and also to pay a fine of Rs. 50,000/- in default to suffer further rigorous imprisonment for one (1) year.”
11. In the petition seeking leave to appeal against the aforesaid judgment and order dated 09.09.2022 as passed by the High Court, this Court had issued notice limited only to the question of quantum of sentence. Having regard to a short point involved in the matter and looking to the overall circumstances, we have heard learned counsel for the parties finally at this stage itself.
12. As regards sentence, learned counsel for the appellant has strenuously argued that even on the facts established by the prosecution, it had been a matter of commotion and scuffle in a running bus, with several persons getting involved in pushing and pulling. In the given circumstances, the High Court has rightly observed that sudden provocation and fighting suppressed the element of intention on the part of the appellant. That being the position, the appellant could have only been convicted, at the most, of an offence under Section 323 IPC and even if, in view of demise of the victim, his conviction under Section 304 Part-II IPC is maintained, sentence of imprisonment for a period of ten years remains too harsh and rather disproportionate, particularly when the High Court has enhanced the fine amount from Rs. 10,000/- to Rs. 50,000/- and has also enhanced the default sentence from simple imprisonment for a period of six months to that of rigorous imprisonment for a period of one year.
13. Per contra, learned counsel appearing for the respondent-State has duly supported the order impugned and has contended that looking to the indisputable facts where the appellant was a part of the group of passengers, who indulged in abusing the police personnel like the victim and the informant in slang expressions and the appellant knowingly kicked the victim out of bus, the sentence as awarded remains just and proper.
14. During the course of submissions, reference has been made to a decision of this Court in the case of State Of M.P v. Ghanshyam Singh . : (2003) 8 SCC 13, particularly as regards the principle of proportionality in prescribing liability according to the criminality of action.
15. Having given thoughtful consideration to the rival submissions and having examined the record, we are of the considered view that an appropriate reduction in the quantum of sentence is warranted in the given set of facts and circumstances.
16. In the case of Ghanshyam Singh (supra), the victims were assaulted by a group of persons, including the respondent, with different weapons including fire-arms. The allegation against the respondent had been that he caused fatal injuries on one of the victims by use of fire-arm. However, the conviction was recorded under Section 304 Part-I IPC after the Court found that the offending act was done by the respondent in the course of sudden and free fight. The said accused-respondent was, accordingly, sentenced by the High Court to the period of imprisonment already undergone, which was about two years.
17. While examining the question of awarding proper sentence, this Court underscored the principle of proportionality and observed, inter alia, as under:
“13. Criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Judges, in essence, affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence, sometimes the desirability of keeping him out of circulation, and sometimes even the tragic results of his crime. Inevitably, these considerations cause a departure from just deserts as the basis of punishment and create cases of apparent injustice that are serious and widespread.
14. Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment has some very undesirable practical consequences.
15. After giving due consideration to the facts and circumstances of each case, for deciding just and appropriate sentence to be awarded for an offence, the aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the court. Such act of balancing is indeed a difficult task. It has been very aptly indicated in Dennis Councle McGautha v. State of California [402 US 183 (1971) : 28 L.Ed.2d 711 (1971)] that no formula of a foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case is the only way in which such judgment may be equitably distinguished.”
18. In the said case, this Court found that the High Court had taken too liberal a view of the matter and, therefore, enhanced the punishment in respect of custodial sentence to a period of six years while not altering the fine imposed with default stipulations.
19. After examining the facts of the present case with reference to the principles aforesaid, we are clearly of the view that while the appellant has rightly been convicted of the offence under Section 304 Part-II IPC, the cumulative effect of the core facts and the surrounding factors of the present case of scuffle and free fight, involving multiple persons in a running bus, the act of the appellant could reasonably fall within Exception-4 of Section 300 IPC, being commission of an act of culpable homicide without premeditation in a sudden fight in the heat of passion upon a sudden quarrel. The appellant has not been shown to have taken undue advantage or having acted in cruel or unusual manner. He remains liable, nevertheless, for doing an act with the knowledge that it was likely to cause death. Therefore, his conviction under Section 304 Part-II IPC is to be maintained, but awarding the punishment with maximum term of imprisonment, i.e., ten years, appears to be disproportionate to the criminality of action and does not appear justified. It is also noticed that the High Court has enhanced the fine to Rs. 50,000/-from Rs. 10,000/- and default sentence to rigorous imprisonment for a period of one year from that of simple imprisonment for a period of six months.
20. Taking the overall circumstances into account, in our view, while maintaining the punishment of fine with default stipulations as awarded by the High Court, reducing the sentence of imprisonment from ten years to six years would serve the cause of justice.
21. Accordingly, and in view of the above, this appeal succeeds in part and is allowed to the extent and in the manner that while maintaining the conviction of the appellant of the offence under Section 304 Part-II IPC, the substantive sentence of imprisonment is reduced to that for a period of six years. The other stipulations in the order impugned as regards fine and default sentencing are maintained.
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