IMPORTANT POINT
Sentence – Principle of Proportionality should guide sentencing process – Punishment is designed to protect society by deterring potential offenders as well as prevent guilty party from repeating offence.

JUDGMENT :

(S. Ravindra Bhat, J.)

1. These appeals, by special leave, arise from the judgment and orders, [Dated 27.08.2019 and 03.09.2019] passed by the High Court of Punjab and Haryana, [In Criminal Appeal bearing No. 249 DB of 2016], converting the decision of conviction given by the trial court from Section 302 of the Indian 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 next day, Brahmjit, son of Krishan (A6), inflicted danda blows upon Subhash at about 10.00/11.00 AM. Due to this, at about 3.00 PM, when Pawan, Uggarsain and Subhash (deceased) were sitting in front of their house, Brahmjit came near their house and started abusing them, which aggravated the situation. Thereafter, all the accused, namely Raju, son of Krishan (A2), Krishan, Parveen (A3), Sunder- son of Amit (A4), Sunder-son of Rajpal (A8), Nar Singh (A-7), Sandeep (A-5) and others reached the spot, with weapons. Raju inflicted blow on the right shoulder of Sita Ram (PW1). Krishan inflicted a blow at the back of Sita Ram with an iron pipe and Brahmjit inflicted a farsa blow on the right of Sita Ram’s head. Sunder was armed with a rod; Nar Singh and Sandeep were 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 registered the case under Sections 147, 148, 149 and 323 IPC. Subash, who was gravely wounded, having received multiple injuries, was removed to the hospital; later, a surgery too was performed on him. However, he did not survive and passed away on 12.3.2012. Thereupon, Section 302 IPC was added in the FIR, on 13.3.2012. Postmortem was conducted, and the doctor (PW5- Dr. Kunal Khanna) recorded in the post-mortem report that the death was caused by injuries sustained by the deceased on the head and its attendant complications. The police arrested the accused. Later, weapons were recovered on the basis of disclosure statements made by them. On the statement of PW1-Sita Ram, the prosecution moved an application under section 319 of the Criminal Procedure Code (hereafter “Cr.P.C.”) for summoning an additional accused, namely Sunder.

4. All the eight accused persons were charged with and tried for offences punishable under Sections 148, 323 and 302 read with section 149 IPC. The prosecution examined twenty-two witnesses and recorded their deposition. PW.3- Dr. Sant Lal Beniwal did medico-legal examination of Sita Ram (PW1), Uggarsain (PW2) and Pawan. He recorded different injuries caused on the complainants’ bodies and stated that the probable duration of injuries was within six hours by blunt weapon. PW8- Dr. Pradeep Kumar stated that Subash (deceased) had received only one injury. PW4- Dharmender Singh prepared the site plan. The defence examined two witnesses. DW1-Bikram Singh deposed that he was authorized to produce, and accordingly brought a computerized attendance register 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 from 7.00 AM to 7.00 PM. DW2- Dr. Naresh Kumar, who had medico legally examined the accused Krishan and Brahmjit and recorded a fracture of the 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 the spot together armed with weapons and their attack on the victims, including the deceased exhibited the intention of an unlawful assembly, to inflict deadly injuries. The nature of injuries found on the deceased indicated common intention of the assembly extended to causing death, which in fact, occurred. The trial court held that the prosecution’s inability to explain the injuries on the accused did not absolve