' ABDUR RAHMEN KHAN, J.---Although, initially petition for leave to appeal was filed to impugn the legality of the sentence awarded to the appellant but by order dated 1-3-1995 of the Court the office was directed to treat the petition as an appeal under Article 185(2) of the Constitution because the High Court while accepting the revision for enhancement converted the sentence of life imprisonment imposed upon the appellant by the trial Judge, into death.
2. The learned trial Judge through his judgment dated 22-7-1990 found the appellant and his brother Maqbool Ahmad guilty of the murder of Lal Din and on conviction under section 302/34, P.P.C. Sentenced each of them to life imprisonment and a fine of Rs,10,000 or in default to undergo further two years' R.I. In case of recovery of fine half of it was ordered to be given to the legal heirs of the decoeased. Both the convicts filed appeal in the High Court and the complainant also preferred revision for enhancement of the sentence. The learned Division Bench of the High Court by the impugned judgment dated 23-11-1993 accepted the appeal of Maqbool Ahmad and acquitted him and not only the appeal of the present appellant was dismissed but the revision petition for enhancement filed against him was accepted and sentence was enhanced to death.
3. Ahmad Ali (P.W.6) reported the murder of his brother Lal Din to the police at 6-00 p.m. On 10-3- 1989. It was stated in the report that the nephew of the appellant known as "Goonga", a boy of 6/7 years of age, was blowing dust in the street for which Lal Din abused him and scared him. After a little while when he, his wife Mst. Rashida and his brother Akbar Ali were present in the house and his another brother Lal Din wanted to fetch milk and when he reached the gate of the house he was confronted by the appellant and the acquitted accused who started abusing him and warned him with dire consequences for driving off "Goonga". Both of them stabbed Lal Din with Khanjar on various parts of his body who fell down inside the gate of the house and died of the injuries.
Complainant's brother Akbar Ali and wife Mst. Rashida were named as eye-witnesses. Motive was stated one as explained above.
4. In order to appreciate the present case in its correct perspective it will be proper to refer in brief the evidence examined by prosecution at the trial.
' P.W.6 Ahmad Ali is complainant who lodged the F.I.R. He almost reiterated whatever was stated in the F.I.R. And, therefore, there is no need to repeat it. The trend of cross-examination of this witness shows that the cross-examiner wanted to prove that the motive for the offence was the quarrel between Sharafat Ali, his son and 'Goonga" which resulted into exchange of abuses between Manzoor Ahmad and Lal Din deceased and then they fought each other and injured each other.
The relevant part of the cross-examination in this context is reproduced: "It is also incorrect that the occurrence took place at about 4 p.m. Out of the quarrel between my son Sharafat Ali and Goonga. It is also incorrect that there was exchange of abuses between Manzoor Ahmad accused and Lal Din deceased. It is also incorrect that I also reached armed there later on and by that time Manzoor Ahmad accused and Lal Din deceased had all alone caught each other. It is also incorrect that Manzoor Ahmad accused was injured by the deceased. It is also incorrect that Lal Din had injured Manzoor Ahmad and because of the quarrel between the children the matter flared up there and then and in that quarrel Lal Din deceased received injuries."
' P.W.7 Akbar Ali is another eye-witness and he is also brother of the deceased. He stated that "Goonga" a nephew of both the accused was blowing dust in front of the shop of Lal Din who abused him and warned him. About one hour of that when he, Ahmad Ali and Mst. Rashida were present in the house and Lal Din wanted to bring milk and at that time Lal Din was still present in the house near the gate when the appellant and his brother reached there armed with daggers and raised. Lalkara that they would teach lesson to Lal Din for abusing "Goonga". Both the accused then gave blows to Lal Din with dagger with which Lal Din fell on the ground and died there and then. They tried to catch the accused "when Manzoor accused struck against a wall". Both of them ran away. In the cross-examination of this witness the same line of defence was adopted as in the cross-examination of P.W.6 when it was suggested to him "It is also incorrect that over a quarrel of Sharafat Ali son of Ahmad Ali and Goonga the occurrence took place after the exchange of abuses between Manzoor Ahmad and Lal Din. It is also incorrect that Manzoor Ahmad had reached there by chance and picked knife from the shop and after he was inflicted injuries by the deceased he also because of sudden and flare of the matter and to save himself from the repetition of blows by the deceased he also injured the deceased".
5. Another important witness is the Investigating Officer who appeared as P.W.8. He stated that after recording the report he went to the spot and found the dead body on the spot. He collected blood-stained earth from the place of occurrence. He arrested the accused on 15-3-1989. Manzoor Ahmad was injured and he prepared his injury sheet and examined him through a Doctor. He effected recovery of blood-stained 'dagger' at the behest of the appellant. The witness then prepared the site plan and recorded the statements of the witnesses. This witness was also put similar suggestions as to the eye-witnesses in order to prove that the quarrel had ensued between the appellant and the deceased and during that quarrel the appellant was beaten by the deceased and then the appellant in turn injured him. Saeed Ahmad Khan Lodhi, D.S.P., was examined as C.W.1 who had verified the investigation. According to this witness the occurrence had taken place in "Daurri at point No,1 in site plan Exh.PG". The defence counsel tried to prove the defence plea through him as suggested to the other witnesses but the witness denied the correctness of this plea and instead testified that the allegations in the F.I.R. Were true.
6. The acquitted accused in his statement under section 342, Cr.P.0 denied the charge and pleaded innocence and false involvement. On the other hand the appellant in his statement under section 342, Cr.P.0 took specific plea in these words:-- "False story has been concocted by the prosecution, actually a quarrel took place between Sharafat Ali and Goonga my nephew in the street in front of shop owned by Lal Din deceased, I reached there by chance, Lal Din deceased after exchange of abuses with me attacked on me firstly with Dang, caused injuries to me. In sudden flare up and in order to save my life from repeating blows of deceased I picked up knife from the shop and caused injuries to the deceased in the street, I was all alone, my brother Maqbool was not present at the spot, none of the witnesses was present at the spot. None had seen the occurrence, all the witnesses being brother and closely relatives of the deceased had concocted this story and falsely implicated my brother and myself."
7. The learned trial Judge discussed the defence plea and held it to be false and unreliable and accepted the prosecution version as correct and confidence inspiring. The relevant portion of the judgment in this respect is reproduced:-- "The defence version is that Manzoor Ahmad accused injured the deceased in his defence as he was under the apprehension of receiving grievous injuries as he had already been injured by the deceased. The injuries suffered by the accused has been declared simple rather it is mere abrasion on the non-vital part of the body. Such abrasion is not necessarily caused by a sota as it is version of the defence. According to the doctor it can be a result of blow of sota but this being the result of hit with some hard substance as it is alleged by the prosecution that it was caused when he hit against a wall also cannot be ruled out. Anyhow, if the defence version is presumed to be correct for the sake of arguments mere an abrasion suffered by the accused was not sufficient to give the right to murder the deceased with sharp-edged weapon.
' The motive and the occurrence both are admitted by the accused although in some other words.
There is no previous enmity in-between both the parties. In the absence of previous enmity there is no chance of the substitution of the accused. It is a day time occurrence, therefore, there is no question of identification of accused. The plea of the defence that Manzoor Ahmad accused took a knife from a shop is also not plausible. The deceased suffered as many as seven injuries on his body. Some on the front side while the others on the back side. It is very difficult for one accused to give such blows on both sides of the body. Their choice of weapons, seats of injuries and force used by the accused give clear proof of the intention of both the accused for the murder of deceased.
Medical evidence also corroborates the oral testimony of two eye-witnesses. Recovery of blood- stained earth and other circumstantial evidence also support the prosecution story.
' The upshot of the above discussion is that both the accused came to the spot armed with sharp- edged weapons from their house and in furtherance of their common intention they injured Lal Din deceased as a result of which he expired. Both the accused have been attributed fatal injuries and they are, therefore, guilty of murder of Lal Din deceased individually and collectively. "
8. In appeal the learned Judge in the High Court acquitted Maqbool Ahmad as his case was held to be having distinguishable feature and his active participation in the crime as doubtful. Although we have reservation about the correctness of the conclusion reached by the High Court for acquittal of co-accused Maqbool Ahmad but as neither the State nor the complainant have chosen to challenge this acquittal, therefore, in the peculiar circumstances of the case, we do not deem it proper to re-open the controversy regarding the acquittal by giving suo motu notice to him.
9. The learned counsel appearing for the appellant at the outset submitted that he would not plead for acquittal but would only confine his arguments for 'reduction in sentence. I find that the eye account furnished by P.W.6 and P.W.7 who were the inmates of the house, where the occurrence took place, is quite natural, consistent and trustworthy and this finds support from the recovery of blood from the spot and is corroborated by medical evidence and the plea of the appellant. All these are sufficient to hold the appellant guilty of the offence. The learned Advocate being conscious of this overwhelming evidence for enabling the High Court and the trial Court to render the finding of guilt against the appellant, conceded that he had no case for acquittal. He further submitted that the offence committed by the appellant would although fall under section 302, P.P.C. And not under section 304, P.P.0 but still the appellant would not deserve normal penalty of death as the murder was committed in sudden flare up on the spot without any premeditation. It is correct that the offence in this case is not covered by Exception 4 to section 300, P.P.0 because all the ingredients provided in that exception must co-exist to attract its application. In the instant case the murder was committed at point No,1 from where blood was recovered and which is situated inside the house of the deceased and the appellant had no business to be there which indicates that the appellant had trespassed into the house of the deceased, therefore, the pleas of the offence being without premeditation in a sudden fight in the heat of passions upon a sudden quarrel are not available. Similarly the offender cannot be said as not to have acted in a cruel and unusual manner because he gave numerous blows to an unarmed and helpless person without any legal or moral justification. Moreover, the right of private defence is also not available to the appellant because; firstly, there is no evidence that he was assaulted as it could not be proved that the abrasion found on his person was the result of any assault by the deceased. But even if there was any assault by an unarmed person that could not reasonably cause the apprehension of death or grievous hurt. Now the question to be resolved is; as to whether, the appellant deserved the normal penalty of death as is awardable for the commission of, murder under section 367 (5), Cr.P.C. Or some reasons exist to justify the imposition of lesser penalty. This incident has been described in two ways; one, in the F.I.R. Supported at the trial by the witnesses and the other by the appellant in his statement under section 342, Cr.P.C. The one told in the F.I.R has already been commented upon and similarly the one pleaded by the appellant in his statement has also been reproduced above. Out of the two versions, the one adopted by the prosecution is supported by eye-witnesses, although related but not inimical as there was no previous medical evidence, spot shown in the site plan, statements of the P.W.8, the investigating officer, and C.W.1 the D.S.P. Who confirmed the investigation to show the place of occurrence at point No,1 which is inside the house of the deceased. On the other hand the plea of the appellant in his statement does not find support from any ocular account and only the medical report of the appellant is advanced in its support.
The injury as given by the medical officer appearing as P.W.4 and his statement is as under:-- "An abrasion mark 4-1/2 " x 1/4" with scab and over some part it was being peeled off, over back upper middle lower part left forearm."
' This was described a simple in nature and with blunt mean. There is no proof that the injury was caused by the deceased rather it suggests to be result of some skin disease or cause of striking against some hard surface and this injury can also be explained on several other grounds. P.W.7 has given the reason for this injury as "we tried to catch hold of the accused when Manzoor Ahmad accused struck against a wall". This portion of the statement has not been challenged or discredited in cross-examination. I am, therefore, of the view that in absence of any proof that the injury was caused by the blow of the deceased there remains no justification for showing any indulgence in matter of awarding normal sentence provided under the law. The prosecution has been able to prove that the murder committed by the appellant, was in most cruel and brutal manner as a defenceless and an unarmed person was given numerous injuries on vital parts of his body when he was lying down in a helpless state. On the other hand, the appellant has not been able to prove any mitigating circumstance to justify lesser penalty. Even otherwise, keeping in view seven incised wounds on the person of the deceased almost all on very vital parts of his body would suggest that the appellant dealt with deceased very brutally and callously on a very petty grievance It is settled law "to punish the offender in proportion to the character and extent of his guilt, to be deterrent for him and for the rest of the society without being u necessarily harsh or needlessly indulgent".
In view of all these, facts the High Court was legally correct in converting the sentence of life imprisonment into death which is normal penalty for the type of murder perpetrated by the appellant. The appeal is found without merits and is, accordingly, dismissed.