Judgment BRAJ NANDAN PRASAD SINGH, J. 1. Though eight persons were put on trial, four having been acquitted of the charges on benefit of doubts, four only suffered conviction on being tried by Shri AKhilesh Chandra, 11th Additional Sessions Judge, Gaya and Kameshwar Yadav and Hari Yadav, who suffered conviction under Section 302 of the Indian Penal Code (IPC) were sentenced to suffer rigorous imprisonment for a term of ten years on that count. Said Kameshwar Yadav also suffered conviction under Section 323, IPC along with Jaldhari Yadav and Parmeshwar Yadav for which they were sentenced to suffer rigorous imprisonment for a term of one year with a rider that sentences of Kameshwar Yadav was to run concurrently. Against findings of trial Judge three appeals were preferred which were heard together and are being disposed of by this common Judgment. 2. Basic features of the prosecution case which are not in much details, can be recapitulated with brevity. Both Kameshwar Yadav and Chander Dusadh had purchased parts of plot No. 1/555 through two sale deeds, and while in case of Kameshwar Yadav, the executant of the deed was Barka Khanam, wife of Gazi Khijer Heyat, in case of Chander Dusadh, executant of the deed was Bibi Mausam Khatoon, and the instrument through which conveyance was made to Chander Dusadh happened to be Exhibit 2. Allegedly, though the land sold to Chander Dusadh, fell west to the canal, land sold to Kameshwar Yadav was east to the canal. Since both Kameshwar Yadav and Chander Dusadh had been putting their claims over the piece of land, lying west to the canal, on 11th August, 1981 while lands of both the vendees were being measured and a wordy duel ensued between both the parties Kameshwar Yadav did not show gesture to relinquish his claim over the land falling west to the canal, and rather cautioned Chander Dusadh to meet grave consequences in case he would resist his claim. The ball was set in, motion by Kameshwar Yadav, who exhorted others to eliminate Chander Dusadh, which was followed by assault on Kali Dusadh by hard and blunt object by said Kameshwar Yadav. Jaldhari Yadav too followed the pursuit, and assaulted Kali Dusadh on right arm. Parmeshwar Yadav too assaulted him on his back, and pursuant thereto Hari Yadav dealt farsa blow on head of Chander Dusadh who dropped injured smeared with blood. Jaldhari Yadav too followed the pursuit, and assaulted Kali Dusadh on right arm. Parmeshwar Yadav too assaulted him on his back, and pursuant thereto Hari Yadav dealt farsa blow on head of Chander Dusadh who dropped injured smeared with blood. After Chander Dusadh had dropped injured, Kameshwar Yadav dealt another blow on his hand by a hard blunt object. After alarms were raised by Kali Dusadh, the assailants had retreated from the field resorting to firing. The injured Chander Dusadh was carried to the Police Station who was still unconscious, and with these accusations statement of Kali Dusadh was recorded by Sherghati police Station at 22 p.m. on 11th August, 1981. 3. As usual, investigation followed during which the Investigating officer, it seems, recorded statement of witnesses got injured examined by the doctor, visited place of occurrence, got autopsy held over the dead body of Chander Dusadh, who was dead by that time, and on conclusion of investigation, laid charge sheet before the Court. In the eventual trial, State had examined altogether ten witnesses including two doctors. Police Officer, injured and other witnesses. Defence of the appellants and others, who were acquitted of the charges, was that of plain innocence and they ascribed their false implication due to land dispute between the parties, and their claim over the land purchased by them, having been resisted by members of the prosecution party. The defence, however, had not chosen to examine any witness to strengthen the plea of innocence. The trial Court however, on examining probative value of testimony of witnesses, while acquitted four accused persons, recorded finding of guilt and sentenced appellants in the manner stated above. 4. The facts of the case, as has been noticed, are tell-tale. Though narrations made by witnesses have been fairly spelt out in Judgment of the Court below, their basic features may be noticed to appreciate the contentions raised. Bisu Bhuiya PW 1 states about assault on Chander Dusadh with garasa by Hari Yadav, and with lathi, by Kameshwar Yadav. He also states about assault on Kali Dusadh, by Kameshwar Yadav, Kishun Yadav, Hari Yadav, Parmeshwar Yadav, Bhuja Yadav, Rohan Yadav and Gopal Yadav. He however, failed to identify individual assailant by name in the Court, as while Hari Yadav was identified as Bhuja Yadav, Parmeshwar Yadav was identified as Gopal Yadav. Similarly, he identified Gopal Yadav as Rohan Yadav. He also states about assault on Kali Dusadh, by Kameshwar Yadav, Kishun Yadav, Hari Yadav, Parmeshwar Yadav, Bhuja Yadav, Rohan Yadav and Gopal Yadav. He however, failed to identify individual assailant by name in the Court, as while Hari Yadav was identified as Bhuja Yadav, Parmeshwar Yadav was identified as Gopal Yadav. Similarly, he identified Gopal Yadav as Rohan Yadav. Though this witness hails from village Gamaharia, he claimed to have witnessed the incident in village Singh Pokhar. He however, did not appear to be conversant with any person of village Singh Pokhar, and probably for that reason, he made error in identification of some of the accused persons during trial, and that apart, all these persons were not suggested to be assailants of Kali Dusadh, who were named by him. For these reasons, there did not appear to be good reason to treat this witness credible as eye-witness. 5. Barat Dusadh PW 3 was the son of deceased Chander Dusadh. He witnessed the incident, while measurement of the land was being carried on by Amin Babu, there being rival claims between his father and Kameshwar Yadav, for the land falling west to the canal. The incident took place following exhortation made by Kameshwar Yadav and assault made by said Kameshwar Yadav, Jaldhari Yadav and Parmeshwar Yadav on Kali Dusadh. Hari Yadav dealt farsa blow on head of his father, when the latter dropped injured, and then Kameshwar Yadav dealt lathi, blow on him. Though his father was carried to hospital and thereafter to medical college hospital, he succumbed to the injuries. Kali Dusadh PW 4 was son of the injured and also stamped witness, as he too had suffered injuries during the incident. He was cultivating land on 11th August, 1981, in the evening hours when measurement of the land was being made by Amin. Kameshwar and Hari Yadav were insisting on them to relinquish their claim over the land falling west to the canal, for which his father had not succumbed. Thereafter, Kameshwar Yadav, Jaldhari Yadav and Parmeshwar Yadav assaulted him with hard and blunt object, followed by assault on head of his father by Hari with farsa. After his father had dropped injured, Kameshwar Yadav dealt lathi, blows on him. Almost similar narrations were made by Aminullah Khan PW 5 and Gazi Khijer Heyat PW 6 also, about assault made on Chander Dusadh and Kali Dusadh. 6. After his father had dropped injured, Kameshwar Yadav dealt lathi, blows on him. Almost similar narrations were made by Aminullah Khan PW 5 and Gazi Khijer Heyat PW 6 also, about assault made on Chander Dusadh and Kali Dusadh. 6. Dr. M.K. Sinha PW 8, who held autopsy over the dead body of Chander Dusadh, noticed following ante mortem injuries : (i) Recently healed liner wound of length 4" over top of head. On dissection underlined tissues were found infilterated with blackish blood clot. There was fracture of both parietal bones. On removal of skull cap, there was presence of extradural and subdural haemotoma over superior surface of both cerebral hemisphere. Brain and meninges were found grossly congested. (ii) Healed abrasion over front of lower on part of the right knee with presence of dry, black scale over the area, size l-l/4"xl/2". (iii) Swelling over antero lateral aspect of right arm upper part size 2- 1/2" circumference. In estimation of the doctor, while injury No. (i) was grievous and dangerous to life caused by sharp cutting weapon. Other injuries were simple in nature caused by hard blunt object. Injury No. (i) in ordinary course of nature was sufficient to cause death and cause of death was due to shock, compression and coma mainly due to injury No. (i). It seems that while Chander Dusadh was alive and had not succumbed to the injuries, he was examined by Dr. Sarjug Prasad Gupta PW 10 who stated to have noticed following injuries on his person : (i) Lacerated wound 3"xl/2"x 1/4" over left parietal region. The patient was in semi conscious and in delirium, may be due to convulsion. (ii) Swelling over dorsum of right hand and in 5th finger (little finger) giving suspicion of fracture of 5th finger. Injury No. (i) was simple in nature caused by hard and blunt substance. Opinion of injury No. (ii) was kept reserved. The State had also examined Police Officer who had recorded statement of Kali Dusadh and had carried out onerous task of investigation of the case. He, however did not find either marks of violence or blood at the place of occurrence. Opinion of injury No. (ii) was kept reserved. The State had also examined Police Officer who had recorded statement of Kali Dusadh and had carried out onerous task of investigation of the case. He, however did not find either marks of violence or blood at the place of occurrence. 7 While evaluating intrinsic value of the testimony of witnesses, trial Court assigned good reasons for placing reliance on them and had repelled the contentions raised at Bar on behalf of the defence about positive findings of the doctor to be in conflict with ocular testimony of witnesses. Similar contentions were raised here too, which can be negatived for good reasons. Though Dr. Sarju Prasad Gupta PW 10 while examining injuries on the person of Chander Dusadh noticed that injuries on parietal region of head was lacerated wound, his opinion about possibility of such injuries by a weapon are two-fold. The doctor says that lacerated wound was not possible by farsa and at the same time, he would be emphatic that fracture on parietal bone is possible by farsa also. However, this finding of the doctor was not end of the chapter, as when autopsy was held over the dead body of Chander Dusadh by Dr. M.K. Sinha PW 8, there was recently healed liner wound on the top of the head and was fracture of both parietal bones. The doctor was of firm opinion that this injury, which was dangerous to life, was likely to be caused by sharp cutting weapon. For other injury, which was abrasion and swelling, none else but Kameshwar Yadav was made answerable by the witnesses. Though Dr. Gupta on examining injuries did not notice any fracture in injury No. 1 on Chander Dusadh, it came to notice of Dr. M.K. Sinha PW 8 during dissection, that there was also fracture of both parietal bones. Though liner abrasion in opinion of Dr. Sinha was possible by lathi as well, it can be cause even by sharp edged weapon. Gupta on examining injuries did not notice any fracture in injury No. 1 on Chander Dusadh, it came to notice of Dr. M.K. Sinha PW 8 during dissection, that there was also fracture of both parietal bones. Though liner abrasion in opinion of Dr. Sinha was possible by lathi as well, it can be cause even by sharp edged weapon. I may usefully refer to opinion of Modi in the celebrated book "Modis Medical Jurisprudence and Toxicology (22nd Edition)" in which author says that when there are clean cut edges of the wound and the wounds are gaping, that shows the features of the incised wounds and conversely, the author says while dealing with incised looking wound, that occasionally on wounds, produced by a blunt weapon or by fall, skin splits and may look like incised wound when inflicted on tense structures covering the bones, such as the scalp, eye brow etc. If margin of the wound was sharp it could be inferred that it was caused by sharp weapon. In view of these findings of Dr. Sinha, I am of the view that this finding was most acceptable based on proper observation of the features of the wound and hence hypothetical finding of Dr. Gupta in case of injuries on parietal region of Chander Dusadh, did not impress me much. Besides medical evidence what is also to be kept in view is that in the FIR recorded on the oral statement of Kali Dusadh (PW 4) immediately after the occurrence, it was specifically stated that the injury on head of Chander Dusadh was caused by a sharp edged weapon and in that view of the matter, I am of the view that medical evidence and ocular evidence are wholly consistent. The evidences available on the record did suggest that Chander Dusadh died after fortnight of the receipt of the injuries and finding of the Dr. Sihna is that in case of head injury of this nature, if there is proper treatment, only then the patient can survive for ten days or so, otherwise he will collapse within 2-3 days. Chander Dusadh, as has been evidence of the witnesses, was referred to Medical College, Gaya for treatment from Sherghati Hospital. Though Dr. Sihna is that in case of head injury of this nature, if there is proper treatment, only then the patient can survive for ten days or so, otherwise he will collapse within 2-3 days. Chander Dusadh, as has been evidence of the witnesses, was referred to Medical College, Gaya for treatment from Sherghati Hospital. Though Dr. Sinha had also opined that it may be that both the injuries were caused on Chander Dusadh 2-3 days prior to his death, it is neither possible nor feasible to say with mathematical precision about the time of receipt of injury preceding death of an injured, this being simple on estimation made by the doctor. 8. Those who claimed to be ocular witnesses to the incident happen to be Barat Dusadh PW 3 , Kali Dusadh PW 4, Aminullah Khan PW 5 and Gazi Khijer Heyat PW 6. Both Barat Dusadh and Kali Dusadh were sons of the deceased, and there is no gainsaying the fact that Kali Dusadh by virtue of being injured also happens to be stamped witness. Aminullah Khan PW 5 and Gazi Khijer Heyat PW 6 being quite independent witnesses, deserve all credence. Isolated statement of Gazi Khijer Heyat PW 6 that when he turned back, he found Chander Dusadh dropped injured with blood oozing from the head, wound not make his exclusion from being eye-witness as totality of his evidence had to be taken into consideration to Judge his credibility. Land disputed and rival claims made by the parties were the genesis of the incident which had been well established by cogent evidence. There being no marks of violence at the place of occurrence or blood having not been collected by the Investigating Officer would not impair bona fide, of the prosecution version. As for the place of occurrence, regard being had to its physical feature, the trial Court had assigned good reasons that the objective finding of the investigating officer did not run counter to the prosecution version about occurrence having been taken place on the land of Chander Dusadh. Likewise, stray statement made by PW 1 about Hari Yadav assaulting Chander Dusadh with garasa (somewhat a different sharp edged weapon) did not diminish the probative value of evidence laid before the trial Court by other ocular witnesses. 9. Likewise, stray statement made by PW 1 about Hari Yadav assaulting Chander Dusadh with garasa (somewhat a different sharp edged weapon) did not diminish the probative value of evidence laid before the trial Court by other ocular witnesses. 9. However, what disturbs me is the finding of the Court below about guilt and also the sentence awarded to Hari Yadav and Kameshwar Yadav. Even though Kameshwar Yadav was not suggested to be the author of the fatal injury found on Chander Dusadh finding of guilt was recorded by trial Court against him under section 302, IPC. The doctor has recorded positive finding that cause of death was injury No. (i), which in ordinary course of nature was sufficient to cause death, and this is not in dispute that Hari Yadav happened to be the author of said fatal injury. However, injury Nos. (ii) and (iii) can be attributed to Kameshwar Yadav which was in the nature of abrasion and swelling and were also simple in nature. These injuries, that apart were on right knee and right arm. Not even common intention to make him answerable under section 302/34, IPC can be attributed to this appellant regard being had to the nature of injuries, and also the weapon held by him and in that view of the matter, while setting aside his conviction under section 302, IPC, Kameshwar Yadav is convicted under section 323, IPC and is sentenced to the period already undergone by him in view of the fact that he had suffered trauma of protracted prosecution for about two decades. Jaldhari Yadav, Kameshwar Yadav and Parmeshwar Yadav, too suffered conviction under section 323, IPC, and regard being had to the nature of injuries which were bruises and swelling and that too simple in nature, while upholding finding of guilt recorded against them by the trial Court, their sentence too is reduced to the period already undergone by them on the same analogy stated above. However, what disturbs me is the sentence awarded to Hari Yadav by the trial Judge, as even though trial Judge found him guilty under section 302, IPC, he awarded sentence for only ten years rigorous imprisonment which as not in tune with the punishment prescribed under the statute as once he was found guilty under section 302, IPC. However, what disturbs me is the sentence awarded to Hari Yadav by the trial Judge, as even though trial Judge found him guilty under section 302, IPC, he awarded sentence for only ten years rigorous imprisonment which as not in tune with the punishment prescribed under the statute as once he was found guilty under section 302, IPC. Not less than life imprisonment could have been awarded to him and same analogy would apply in case of Kameshwar Yadav also. Though punishment prescribed by the trial Judge as against Hari Yadav and Kameshwar Yadav was not in tune with the legislative policy, no reasonings were assigned by the trial Judge as to what persuaded him to inflict punishment lesser than that prescribed under the statute. The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. Indeed the requirement is that punishment need not be disproportionate to the culpability of each kind of criminal conduct. Practice of punishing of serious crime with equal severity is not unknown in civilized society. The trial Judge being Additional Sessions Judge, by virtue of his office which he holds, is expected to be quite mature and awarding of ten years rigorous imprisonment in case of conviction of the accused under section 302, IPC was not in tune with the sentencing policy prescribed by the Parliament under the statute. When the matter was first taken up notice was directed to be issued to these two appellants for enhancement of sentence which was accepted by the learned counsel appearing for them. The counsel was heard on the issue and the submission /was that since the State had not moved this Court for enhancement of sentence this Court should be rather loath in enhancement of sentence to his appellant. However, I am of the view , which is no longer res integra crystallized by catena of decisions that notwithstanding the provisions of law contained in Section 377 of the Code of Criminal Procedure, the Court as an effective instrument for administration of criminal justice keeps constant vigil and wherever it feels that justice had suffered, it takes upon itself as its bounden duty to suo motu, act so as to enhance punishment where there is flagrant abuse of law. Even in exercise of revisional jurisdiction, the Court can suo motu enhance sentence in appropriate cases and for which reliance can be placed on a decision of the Apex Court reported in AIR 1976 SC 2205 , Nadir Khan V/s. State and AIR 1977 SC 1177 , Eknath Shankarrao Mukkawar V/s. State of Maharashtra. Since justice had suffered and there has been flagrant abuse of the law due to inadequacy of sentence awarded to Hari Yadav by the trial Judge, while enhancing sentence, Hari Yadav, whose finding of guilt recorded by the trial Court is upheld, is sentenced to life imprisonment and with this modification, all the appeals are dismissed. Since appellant Hari Yadav is on bail, his bail bonds are cancelled and it is directed that trial Court shall take all effective steps to consign him to custody to serve out the sentence awarded to him.