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2009 DIGILAW 66 (GUJ)

Ashokbhai Ranabhai Jadav v. State of Gujarat

2009-02-05

JAYANT PATEL, RAJESH H.SHUKLA

body2009
JUDGMENT : Jayant Patel, J. The present appeal is directed against the Judgment and Order dated 27.06.2001 passed by the learned Sessions Judge in Sessions Case No.240/00, whereby the learned Sessions Judge has convicted the appellant-accused for the offences punishable under Sections 302 and 324 of the Indian Penal Code and has imposed sentence for life imprisonment with a fine of Rs. 1,000/- and for imprisonment of 6 months with the fine of Rs. 500/- respectively. 2. It appears that as per the prosecution case, on 02.12.1999, at about 10.00 to 10.30 at night, the accused with an intention to cause death of Ramsing Lalaram Pandit inflicted knife blow on his chest which was sufficient to cause death of a human being in normal circumstances. As per the prosecution, the accused also caused injuries on the various parts of the body of one another person Jitendra Jaichandbhai Jain on the same day and as the accused was having a dangerous knife, he also committed offence under Section 135 of Bombay Police Act by committing breach of the Notification issued by the Police Commissioner for such purpose. 3. In support of the prosecution case, the following witnesses have been examined: P.W. No. Name Exh. 1. Complainant Nanusing Padamsing Solanki 8 2. Injured Jitendra Jaychandbhai Jain 10 3. Rajesh Rampadarath Yadav 11 4. Omprakash Asharam 12 5. Kailashkumar Baidhnath Karvariya 14 6. Maheshbhai Laluprasad Varma 16 7. Dineshbhai Lakhaji Thakor (hostile) 18 10. Dr. Soneshkumar Bhagwandas Lalwani 29 11. Dahyabhai Khemabhai Solanki (hostile) 31 12. Bipinbhai Gopalbhai Gadhvi 12 13. Kamlesh Lalsingh 35 14. Sukhdevsinh Sadasinh Chudasama (P.I.) 37 The following documents have been produced in support of the prosecution case: Sr. No. Particulars Exh. 1. Complaint of Nanusingh Padamsing Solanki 9 2. Inquest Panchnama of dead body of deceased Ramsing Lalaram 19 3. Panchnama of place of offence 38 4. Panchnama of physical condition and cloths seized of the accused. 17 5. Panchnama of the pant seized of deceased Ramsing Lalaram. 36 6. Panchnama of other cloths seized of the deceased. 15 7. Panchnama of seized cloths of injured Jitendrabhai. 39 8. Recovery panchama of the knife of the accused. 13 9. Medical Certificate of the injuries of Ramsing Lalaram. 22 10. Medical Certificate of the injuries of Mohan @ Mogan. 30 11. Medical Certificate of the injuries of Jitendra. 23 12. Panchnama of other cloths seized of the deceased. 15 7. Panchnama of seized cloths of injured Jitendrabhai. 39 8. Recovery panchama of the knife of the accused. 13 9. Medical Certificate of the injuries of Ramsing Lalaram. 22 10. Medical Certificate of the injuries of Mohan @ Mogan. 30 11. Medical Certificate of the injuries of Jitendra. 23 12. Post Mortem report of the dead body of the deceased. 25 13. Acknowledgment of forwarding note of the Muddamal sent to FSL. 40 14. Receipt of FSL 41 15. Report of FSL 42 4. The learned Sessions Judge, thereafter has recorded the statement under Section 313 of the CRPC, wherein the accused has denied the accusation as well as the evidence against him. The learned Sessions Judge, after appreciating the evidence on record and after considering the submissions made by both the sides, has found that the prosecution has been able to prove beyond reasonable doubt that the accused has committed offence under Sections 302 and 324 of IPC. The learned Judge therefore, has convicted the accused for both the aforesaid offences, but has acquitted the accused for the offence under Section 135(1) of the Bombay Police Act. The learned Sessions Judge, thereafter, has also heard the accused on the aspects of punishment and ultimately, has sentenced the accused for life imprisonment with the fine of Rs. 1,000/- for the offence under Section 302 of the IPC and has also imposed sentence for 6 months with a fine of Rs. 500/- for the offence under Section 324 of IPC. It is under these circumstances, the present appeal before this Court. 5. We have considered the record and proceedings, the evidence on record as well as the documents produced by the prosecution. It appears that Nanusing Padamsing Solanki, P.W.1 is the eyewitness to the incident of causing death by the accused of deceased Ramsing. The accused was earlier serving with the said witness at lorry owned by the said eyewitness. As per the Nanusing, P.W.1, the accused was indulging himself in outlined business (prohibited business) and therefore, he was removed from service. As per the said eyewitness, on 02.12.1999, the accused came to his lorry at about 9.30 at night and had taken one omlette from his lorry and he was in drunken condition. As per the said eyewitness, the accused had gone away at a distance of about 100 Ft. As per the said eyewitness, on 02.12.1999, the accused came to his lorry at about 9.30 at night and had taken one omlette from his lorry and he was in drunken condition. As per the said eyewitness, the accused had gone away at a distance of about 100 Ft. from his lorry and had beaten one Bhaiyaji whose name was not known to the said eyewitness. Thereafter, one customer, who was at the lorry of the P.W.1, whose name is not remembered by him, was sitting to take food. At that time, the accused showed the knife to him and asked him to get up. The said customer went to pangalla to buy pan. The accused pulled the said person from the pangalla and gave a blow to the said person and he was caught. As per the said P.W.1, thereafter, the accused also gave blow of knife to one Madrasi who was serving with one person selling Idli Sambhar and went away. The knife which was used by the accused was described by the said witness as small Rampuri knife and is also identified by him. In the cross-examination of the said eyewitness, nothing serious has been found to contradict the incident and the involvement of the accused therein. It goes to the extent in the cross-examination that after the aforesaid incident, the accused had also come to his lorry and had taken omlette from his lorry. The said P.W.1-eyewitness is also the complainant, whose complaint is exhibited at Exh.9 and in the said complaint, it was stated that Ashok-accused was identifying himself as Dada. 6. The injury to deceased Ramsing is supported by medical evidence of Dr. Dharmila Gunwant Shah, P.W.8, Exh. 21. The Doctor has stated as per the certificate that one blow on the left rib on the chest was given and such could be inflicted with any sharp cutting instrument. She has also opined that such injury could be caused by Rampuri knife which was duly identified as Article 11. She had stated that the patient had died at 00.30 Hrs. in the hospital. Further, the Post Mortem Report is produced and duly proved by the deposition of the Dr. Yogesh M. Jadav, P.W.9, Exh.24. She has also opined that such injury could be caused by Rampuri knife which was duly identified as Article 11. She had stated that the patient had died at 00.30 Hrs. in the hospital. Further, the Post Mortem Report is produced and duly proved by the deposition of the Dr. Yogesh M. Jadav, P.W.9, Exh.24. As per the PM Report supported by the deposition of the said Doctor, the injury is tallying with the Certificate and the injury as per the Post Mortem Report is as under:- "Injury No. I internally wound is directed upwards and out wards and posterially cavity deep in a way it cuts skin, subcutaneous tissue, intercostal space, pleaura, lungs(1.5 cm medial border of lt.lower lobe) pericardium, lt ventricle (4 X 1.5 cm) and ends in lt ventricle cavity, blood and clots found about 300ml in left thoracic cavity. Rt.thoracic cavity empty. Rt.lung is congested. Injury No.2 goes deep to thoracic cavity suggestive of surgical procedure for ICD." The cause of death as per the Post Mortem Report is shock and hemorrhage due to sustained injury over body. The said P.W.9 Dr. Yogesh M.Jadav has opined that external injury No. I was sufficient enough to cause natural death in normal circumstances of a human being and he has also deposed that the death was due to the injury caused on the body. It is also stated by him that such injury could be caused by Rampuri knife (Article 11) duly identified. Nothing has come out in the cross-examination of the said Doctor to doubt the reliability or otherwise. 7. The discovery of the knife, Article 11, is proved by the deposition of Omprakash Asharam, P.W.4, Exh.12. The discovery of cloths is also proved by the deposition of Kailashkumar Baidhnath Karvariya, P.W.5, Exh.14. The inquest panchnama is proved by deposition of Dinesh Lakhaji Thakor, P.W.7, Exh.18. 8. As per the FSL report, the bloodstains are found of "B" Group on the cloths of the deceased Ramsing, accused as well as on the knife(Rampuri Chappu) discovered by the prosecution from the accused. The blood group of the deceased is certified as "B" blood group. The forwarding letter of Mudammal is Exh.40, acknowledgement is Exh.41 and FSL report is Exh.42. 9. It appears that Jitendra Jaichandbhai Jain, P.W.2 himself is an injured witness due to the injuries caused to him by the accused. His deposition is at Exh.10. The blood group of the deceased is certified as "B" blood group. The forwarding letter of Mudammal is Exh.40, acknowledgement is Exh.41 and FSL report is Exh.42. 9. It appears that Jitendra Jaichandbhai Jain, P.W.2 himself is an injured witness due to the injuries caused to him by the accused. His deposition is at Exh.10. He has stated that when he was taking omlette, the accused who was identified by him in the Court had come to him and was showing the knife by moving it. The said injured witness told the accused that he should not show the knife, otherwise the police would arrest him. The complainant Nanubhai (P.W.1) was annoyed due to such behaviour of the accused and he told him that the accused would spoil his business/customers. Thereafter, the accused went away. After having omlettee, the said injured witness had gone to the pangalla for taking panmasala and when he was talking to pangallawala, the accused gave him 3 blows, one on the lower abdomen, second on the left side of the buttocks and third on the left knee. When he was about to give fourth blow, Nanubhai, P.W.1 took him away and separated them. Thereafter, the said injured witness was taken to the hospital. Nothing has come out to contradict the aforesaid say of the said witness in his cross-examination. The said incident is supported by the deposition of Rajesh Rampadarath Yadav-P.W.3-Exh.11. The said Rajesh Yadav is the pangallawala, who has stated that Jitendra was on his galla and after taking his pan, when he was going, the accused had given knife blows to Jitendra and Jitendra started crying. Therefore, he took Jitendra to the Hospital. He has also stated that he knows the accused Ashok who was working with omlette lorry of Nanubhai (P.W.1) and he has also identified the accused who was present in the Court. In the cross-examination of the said witness, no other material is found to the contrary. 10. Dr. Dharmila G.Shah, P.W.8, Exh.21, has deposed that after Ramsing Lalaram Pandit was brought to the hospital at about 10.50 at night, another patient, Jitendra Jaichandbhai Jain was brought to the hospital at about 12.10 at night. She has stated for the injuries mentioned in the Certificate issued by Dr. Bansal, copy produced at Exh.23. 10. Dr. Dharmila G.Shah, P.W.8, Exh.21, has deposed that after Ramsing Lalaram Pandit was brought to the hospital at about 10.50 at night, another patient, Jitendra Jaichandbhai Jain was brought to the hospital at about 12.10 at night. She has stated for the injuries mentioned in the Certificate issued by Dr. Bansal, copy produced at Exh.23. The said Doctor has referred to four injuries, as stated in the Certificate and also opined that such injury could be caused by sharp cutting instrument like Article 11(Rampuri knife). Hence, the injury, as stated by the injured witness Jitendra Jaichandbhai Jain is supported by the medical evidence of the Doctor together with the Certificate produced. The discovery of knife, the cloths of the accused, the cloth of the victim Jitendra are proved by the evidence in the same manner as referred to for deceased Ramsing. 11. The prosecution has also led the evidence by examining Dr. Soneshkumar Lalvani, P.W.10, Exh.29 for showing the injury caused by the accused on the very day to Mohan Velubhai (Madrasi) and the medical certificate is also produced at Exh.30 and duly admitted by the said Doctor. 12. The Investigation Officer has been examined for supporting the investigation at P.W.14, Exh.37 by the prosecution. The said Investigation Officer has stated to have undertaken the investigation, discovery panchnama, inquest, the arrest of the accused, Post Mortem, and others for completing the investigation. No contradiction is found in the cross-examination of the said Investigation Officer to dislodge or to obviate the case of the prosecution. 13. The learned counsel for the appellant raised the contention that it was a case of self defence by the accused and the incident has occurred during the course of self-defence. 14. Whereas, on behalf of the State, the learned APP contended that no such defence is taken even in the cross-examination by the accused before the learned Sessions Judge. 15. The learned APP appears to be right in submitting that such was not a defence put forward by the accused before the Trial Court. Therefore, it can be said to be a new case put forward by the accused for the first time before this Court. Had it been a case where the evidence was there on record, possibly at the appellate stage also, such plea could be entertained and considered. Therefore, it can be said to be a new case put forward by the accused for the first time before this Court. Had it been a case where the evidence was there on record, possibly at the appellate stage also, such plea could be entertained and considered. The learned counsel for the appellant-accused has not been able to show any question put even in the cross-examination of any of the witness pertaining to the self-defence by the accused and the incident arising there from. 16. In the cross-examination of Nanusing, P.W.1, it is transpired that the incident had continued for about 1 hour and the said Nanusing did not go to save deceased Ramsing since he was busy with the customers and therefore, it was submitted that when such incident continued for one hour, this Court may consider the matter as if the case of self-defence by the accused in a scuffle and the incident arising there from resulting into the death of deceased Ramsing. It was also submitted that therefore, this Court may consider the case under Section 304 Part-II of IPC instead of offence under Section 302 of the IPC. 17. We cannot agree with the aforesaid case put forward by the learned counsel for the appellant-accused for two reasons; one obvious is that nowhere in any of the cross-examination of any of the witness, there is any suggestion for self-defence by the accused and the incident arising there from. The second is that even on the body of the accused, there are no injury marks whatsoever found, even of simple abrasion. Therefore, the contention lacks merit. 18. The learned counsel for the appellant-accused next contended that there is contradiction in the evidence, if considered qua the injury sustained by Jitendra through the accused. It was submitted that as per the FSL report, the blood found over the cloth of injured Jitendra, P.W.2, was of "O" group, whereas, the blood found on the knife is shown as of "B" group. Therefore, it was submitted that the case put forward by the prosecution for injury caused to Jitendra by the accused appears to be concocted or unbelievable. Therefore, it was submitted that the case put forward by the prosecution for injury caused to Jitendra by the accused appears to be concocted or unbelievable. She also contended that such case put forward by the prosecution of not tallying with the FSL report qua injury caused to Jitendra shows that there was some scuffle amongst the accused, Ramsing, Jitendra and other and the incident happened on account of sudden provocation and therefore, it would not be a case under Section 302 of the IPC, but at the most, may be a case falling under Part-II of Section 304 of IPC. Therefore, she submitted that this Court may consider the said aspects accordingly and it will also have a consequential effect on the quantum of punishment. 19. If the contention is closely scrutinised with the record, it appears that the incident of causing death of Ramsing by the accused is different and during different period than that of causing injury by the accused to Jitendra, P.W.2. Dr. Dharmila Gunwant Shah, P.W.8, Exh. 21, in her deposition has expressly stated that deceased Ramsing was brought on 02.12.1999 at about 10.50 hrs. at night to the hospital whereas Jitendra Jain, another injured witness and victim was brought to the hospital at 12.10 hours at night. This shows the gap between the incident happened with deceased Ramsing and with injured witness Jitendra Jain. It appears that as per the prosecution case and also proved on record that at about 09.00 "O" Clock at night, as stated by the eyewitness Nanusing, the incident first happened with deceased Ramsing and the accused. The injury caused to Jitendra is thereafter. Therefore, the contention on behalf of the accused is not on factual premise as per the record that there was scuffle between the accused Ramsing and Jitendra. Testing it on normal prudence, such could have been if the time of the incident was simultaneous for the assault given by the accused to the deceased as well as to injured Jitendra. Such is not the fact situation. Therefore, such contention of the learned counsel for the accused cannot be accepted. 20. It was next contended by the learned counsel for the accused that this Court may reduce the punishment in view of the contradiction in the evidence about the same blood group not found on the knife recovered from the accused of Jitendra, i.e. "O" group. Therefore, such contention of the learned counsel for the accused cannot be accepted. 20. It was next contended by the learned counsel for the accused that this Court may reduce the punishment in view of the contradiction in the evidence about the same blood group not found on the knife recovered from the accused of Jitendra, i.e. "O" group. It was also submitted that there is evidence on record that there was dispute between the accused and Ramsing. It continued for about one hour. The injured Jitendra has not referred to the incident of Ramsing in his deposition and therefore, keeping in view the overall facts and circumstances, it was also submitted that there was no motive coming on record for killing Ramsing by the accused. It was therefore, submitted that keeping in view the facts and circumstances, this Court may take lenient view by considering the case as falling under Section 304 Part-II of IPC instead of Section 302 of IPC or in any case, sentence imposed may be reduced accordingly. 21. It has come on record that the accused was indulging himself into outlined business as stated by the eyewitness Nanusing, P.W.1. In the cross-examination, it has also come on record that the accused was selling liquor and was also consuming the liquor. As stated in the complaint, the accused was identifying himself as Dada-Headstrong person. As stated above, it does not appear to be a case of causing injury out of the sudden provocation nor by way of self-defence. The blow given to the deceased by the accused is a single blow sufficient enough to cause death of a person. That itself may not involve the aspects of motive for considering the case under Section 302 of the IPC. 22. At this stage, it would be worthwhile to extract certain observations of the Apex Court in the case of Pulicherla Nagaraju v. State of Andhra Pradesh reported at AIR 2006 SC 3010 . In the said decision, the Apex Court after considering the decision in the case of Virsa Singh ( AIR 1958 SC 465 ) and another decision in the case of Jagrup Singh v. State of Hariyana reported in AIR 1981 SC page 1552 had observed at para 18 inter alia as under: "18. In the said decision, the Apex Court after considering the decision in the case of Virsa Singh ( AIR 1958 SC 465 ) and another decision in the case of Jagrup Singh v. State of Hariyana reported in AIR 1981 SC page 1552 had observed at para 18 inter alia as under: "18. Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. It is for the courts to ensure that the cases of murder punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any premeditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may." 23. Therefore, if the aforesaid circumstances are taken into consideration with the facts of the present case, merely because nothing has come out on record for the motive or intention coupled with the circumstance of the conduct and record of the accused, as that of identifying himself as headstrong person(dada) and causing injury to other two persons on the same day; one injured Jitendra, P.W.2 and another Madrasi, shows that such aspects of motive or intention would not dilute the intention on the part of the accused to kill deceased Ramsing by a single blow as opined by the Doctor of sufficient enough to cause death with a weapon like Rampuri knife and resulting into death of deceased Ramsing. Therefore, we are not in agreement with the contention of the learned counsel for the appellant-accused that there was no intention on the part of the accused to cause death of the deceased Ramsing, even if no evidence coming on record of motive or any past history. 24. At this stage, we may extract the observations made by the Apex Court in the case of Molu & Ors. v. State of Hariyana reported at AIR (1976) SC 2499 at para 11, the relevant of which reads as under: "11. Finally it was argued by the appellants, following the reasons given by the Sessions Judge, that there was no adequate motive for the accused to commit murder of two persons and to cause injuries to others. It is well settled that where the direct evidence regarding the assault is worthy of credence and can be believed, the question of motive becomes more or less academic. Sometimes the motive is clear and can be proved and sometimes, however, the motive is shrouded in mystery and it is very difficult to locate the same. If, however, the evidence of the eye-witnesses is creditworthy and is believed by the Court which has placed implicit reliance on them, the question whether there is any motive or not becomes wholly irrelevant. For these reasons, therefore, we agree with the High Court that the prosecution has been able to prove the case against the appellants beyond reasonable doubt." 25. Therefore, considering the facts and circumstances, the motive would not assume importance if the aforesaid decision of the Apex Court is taken into consideration. 26. The aforesaid carries us to examine the further question of proportionality of the punishment. The Apex Court in the case of Siriya alias Shri Lal v. State of MP reported at AIR 2008 SC 2314 , had an occasion to consider the same. It was inter alia observed at paras 6, 7, 8, 9 and 10 as under: "6. The next question is whether any lenience in sentence is called for. 7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. The next question is whether any lenience in sentence is called for. 7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of "order" should meet the challenges confronting the society. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. 8. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu, 1991 (3) SCC 471 . 9. The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. This position was illuminatingly stated by this Court in Sevaka Perumal etc. v. State of Tamil Nadu, 1991 (3) SCC 471 . 9. The 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 practise 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 desert as the basis of punishment and create cases of apparent injustice that are serious and widespread. 10. 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 MCG Dauth v. State of Callifornia, 28 L.D. 2d 711 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." 27. 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." 27. In the present case, the accused as was identifying himself as headstrong person, and having killed one person and thereafter, having caused injury to the additional two persons, and with the circumstance that after killing Ramsing, the accused went to the lorry of Nanusing, P.W.1, and took snack of omlette shows that the accused has no sentiment whatsoever for the human life and also have no repent to the action of killing Ramsing nor such killing has disturbed himself. Therefore, when the prosecution has been able to prove the case under Section 302 of IPC for the death of deceased Ramsing, any leniency can not be shown by treating the case under Section 304 Part-II of the IPC by reducing the punishment as contended by the learned counsel for the accused-appellant. 28. In view of the above, the appeal is without merits and deserves to be dismissed. Hence, dismissed. Appeal dismissed.