IMPORTANT POINT
Undue sympathy to impose inadequate sentence would do more harm to justice system and it is duty of Court to award proper sentence having regard to nature of offence and manner in which it was executed.

JUDGMENT

Arijit Pasayat, J.-In our country where large number of people live below the poverty line, destruction of a small quantity of crops, that too by animals in many cases lead to fights and invariably loss of lives. These are normally not pre-meditated and tempers rise at the spot, physical force is used and by the time sanity prevails, damage is done. Neighbours or even friends and relatives forget the existing comity, and animal instincts take over. The case at hand belongs to such category of cases.

2. These two appeals are inter-linked being directed against the same judgment rendered by a Division Bench of the Rajasthan High Court at Jodhpur. By the impugned judgment the High Court altered conviction of the 5 respondents from Section 302 read with Section 149 and 148, 341 of the Indian Penal Code, 1860 (in short the IPC ) to Section 304 Part I read with Section 149, 148 and 341 IPC. Criminal Appeal No. 646/1999 has been filed by the informant while criminal appeal No. 647/1999 has been filed by the State of Rajasthan.

3. Five respondents (hereinafter referred to as the accused ) were found guilty of the offences punishable under Section 302 read with Sections 149 and 148, 341 of the IPC by the trial Court. Instead of life imprisonment as awarded for the first offence, the High Court restricted the custodial sentence to the period undergone which was about 3 years. Accused persons had not seriously contested the occurrence before the High Court. They have only contended that the offence was not covered by Section 302 read with Section 149.

4. A brief reference to the factual aspects would be necessary.

5. On 9.3.1995 over a trifle issue of damage of crop by goats there was altercation between Adu Ram-informant (appellant in criminal appeal No. 646/1999) and Poora Ram (hereinafter referred to as the deceased ) on one side and the accused persons on the other. According to the informant, when he noticed that the goats of the accused Chola had damaged part of the crop, there was exchange of hot words and the respondents-accused surrounded the deceased with the intention to kill him, started beating him with lathies and axes resulting his instantaneous death. Information was lodged at the police station and investigation was undertaken and on completion thereof the charge sheet was placed.

6. Fourteen witnesses were examined to further the prosecution version. While the accused persons took the plea that they have found the dead body of the deceased in their fields and with the suspicion that they had caused his murder, they have been implicated. The trial court placed reliance on the evidence of eye-witness i.e. Ruparam (PW-1), Prahlad (PW-5) and Lata (PW-11). It is to be noted that doctor (PW-2) who conducted the post mortem found 34 injuries including several fracture injuries. Accordingly, the trial Court recorded conviction as aforesaid. The High Court noted the fact that the fracture injuries were all seen on the hand and other non-vital parts of the body and there was no grievous injury on the head. All the injuries on the head were simple in nature. Accordingly, the conviction was altered to Section 304 Part I IPC. Taking note of the fact that sometime has been spent during trial, custodial sentence was reduced to the period undergone. The fine from Rs. 2,000/- was enhanced to Rs. 10,000/-. It was directed that the fine as awarded if deposited, is to be paid to the widow of the deceased as compensation.

7. Learned counsel for the appellants submitted that alteration of conviction is indefensible. In any event, the imposition of sentence to period undergone is clearly irrational.

8. Learned counsel for the respondents-accused, however, submitted that there was no injury noticed on any vital part. On the other hand injuries on different part of the body clearly indicate that no particular injury was intended. As a matter of fact, there were only simple injuries on the vital parts of the body.

9. It was further submitted