State of M.P. Vs.
Kashiram & Ors.  INSC 196 (2 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 191 OF 2009
(Arising out of SLP (Crl.) No. 1507 of 2007) State of M.P. ..Appellant Versus
Kashiram & Ors. ..Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment rendered by a learned Single Judge of the
Madhya Pradesh High Court. The respondents faced trial for alleged commission
of offences punishable under Section 307 read with Sections 149 and 148 of the
Indian Penal Code, 1860 (in short the `IPC'). Learned Additional Sessions
Judge, Shihore, found the accused respondents guilty and sentenced each to
undergo rigorous imprisonment for five years with fine and 6 months rigorous
imprisonment for the other two offences. By the impugned judgment the High
Court held that the appropriate conviction would be under Section 326 read with
Section 149 IPC. Custodial sentence was reduced to the period already
undergone, while the fine amount of Rs.500/- was enhanced to Rs.20,000/-.
version as unfolded during trial is as follows:
On 21.7.1987 at about
4 O'clock in the evening the complainant- victim Jai Singh (PW5) was at the
grass field for the purpose of grazing the cattle. The wife of respondent Lila
Kishan and wife of Bapulal came there to collect some leaves in the field.
Thereafter on account of some earlier enmity the respondents armed with rifle,
sticks and axe came there and the accused Lilakishan, Bapu and Kashiram caught
hold of the said victim while other accused Jagannath and Amar Singh tied his
hands and legs by turban and accused Laakhan with the help of clothes pressed
Thereafter, his legs
were caught by the respondents Bapu and Lila Kishan, while Kashiram chopped off
the lower part of the left leg. Gangaram stood there with rifle. The victim
sustained injuries on his back, right eye and left leg. After the incident the
accused persons ran away from the spot.
However, the victim
reached the field of Chain Singh and mentioned the incident to him. Umrao Singh
and Roop Singh took him to his home. They called the watchman and mentioned him
the incident. Due to heavy rain, Jai Singh lodged the report to Police, Ahmadpur
on 22.7.1988 at 6.40. On registering the offence, the victim was referred to
hospital. The M.L.C. Report was prepared. He was admitted in the hospital and
remained under treatment. On completion of the investigation, the accused
persons were charge sheeted under Sections 147, 148, 149 and 326 and 307 IPC.
The Trial court
believed the evidence of the victim PW 5 and also the other evidences brought
on record and recorded conviction and imposed sentences as aforestated. The
accused persons preferred an appeal before the High Court where the basic stand
was that offence under Section 307 IPC is not made out. The High Court held
that there was no material on record to show that the injury was sufficient to
cause death in the ordinary course of nature. It was observed that chopping of
the leg from the body cannot be treated sufficient to cause death. As noted
above with the aforesaid observation the conviction and the sentence were
support of the appeal learned counsel for the appellant-State submitted that
the High Court has completely overlooked the gruesome nature of the offence. It
has also overlooked the evidence of PW1, the Doctor that the injury could have
counsel for the respondent on the other hand supported the judgment of the High
dismay we observe that the High Court has completely overlooked the evidence on
record and the impugned judgment shows total non-application of mind. The High
Court observed that the doctor has not stated that the injury was sufficient to
cause death in the ordinary course of nature. PW 1 had noted that 1/3 of the
leg was chopped off below the knee.
He had categorically
stated that the injury could have caused death. The Doctor (PW14) i.e. the
Radiologist clearly stated that the aforesaid chopping of the leg was grievous
in nature. With some strange logic the High Court observed that merely on the
testimony of PW1 it cannot be assumed that the injury was sufficient to cause
death in ordinary course of nature.
evidence of PW5 the victim clearly shows the gruesome nature of the attack and
the intention of the accused persons. According to him, accused Ram Singh and
Bapulal caught hold of him. He was laid down on the ground and the accused
Krishan Lal chopped out the left foot and Ram Singh caught hold of his left leg
and Bapulal caught hold of his right leg, Arjun caught hold of his leg and
Krishan Lal kept his legs on his left hand and put clothes in his mouth and
caught hold of his head. Leela Krishan said that his foot jaw has been chopped
off and the heels should also be chopped out. Accused Suraj Singh kept his leg
on a log of wood and Leela Krishan chopped out his feet by axe from above the
ankle. The trial court noticed that the leg was chopped out between the knee
and the ankle. Krishan Lal asked Ram Singh to keep the chopped pieces of the
leg in the bag and Ram Singh picked up the pieces of legs and kept them in the
Though accused Arjun
Singh asked that both his eyes should be taken out, accused Ganga Ram told him
that chopping of his one leg was sufficient to cause his death.
307 relates to attempt to murder. It reads as follows:
any act with such intention or knowledge, and under such circumstances that, if
he by that act caused death, he would be guilty of murder, shall be punished
with imprisonment of either 5 description for a term which may extend to ten
years, and shall also be liable to fine; and, if hurt is caused to any person
by such act, the offender shall be liable either to (imprisonment for life), or
to such punishment as is hereinbefore mentioned."
justify a conviction under this Section, it is not essential that bodily injury
capable of causing death should have been inflicted. Although the nature of
injury actually caused may often give considerable assistance in coming to a
finding as to the intention of the accused, such intention may also be deduced
from other circumstances, and may even, in some cases, be ascertained without
any reference at all to actual wounds. The Section makes a distinction between
an act of the accused and its result, if any. Such an act may not be attended
by any result so far as the person assaulted is concerned, but still there may
be cases in which the culprit would be liable under this Section. It is not
necessary that the injury actually caused to the victim of the assault should
be sufficient under ordinary circumstances to cause the death of the person
assaulted. What the Court has to see is whether the act, irrespective of its
result, was done with the intention or knowledge and under circumstances
mentioned in the Section. An attempt in order to be criminal need not be the
penultimate act. It is sufficient in law, if there is present an intent coupled
with some overt act in execution thereof.
is sufficient to justify a conviction under Section 307 if there is present an
intent coupled with some overt act in execution thereof. It is not essential
that bodily injury capable of causing death should have been inflicted. The
Section makes a distinction between the act of the accused and its result, if
any. The Court has to see whether the act, irrespective of its result, was done
with the intention or knowledge and under circumstances mentioned in the Section.
Therefore, an accused charged under Section 307 IPC cannot be acquitted merely
because the injuries inflicted on the victim were in the nature of a simple
position was highlighted in State of Maharashtra v. Balram Bama Patil and Ors. (1983
(2) SCC 28), Girija Shanker v. State of Uttar Pradesh (2004 (3) SCC 793), R.
Parkash v. State of Karnataka (JT 2004 (2) SC 348) and State of Madhya Pradesh
v. Saleem @ Chamaru & Anr. [2005 (5) SCC 554].
there was intention to kill or knowledge that death will be caused is a
question of fact and would depend on the facts of a given case.
that the injury inflicted by the accused was simple or minor will not by itself
rule out application of Section 307 IPC. The determinative question is
intention or knowledge, as the case may be, and not nature of the injury.
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
Naidu (AIR 1991 SC 1463).
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
MCGDautha v. State of Callifornia: 402 US 183: 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.
object should be to protect the society and to deter the criminal in achieving
the avowed object of law by imposing appropriate sentence. It is expected that
the Courts would operate the sentencing system so as to impose such sentence
which reflects the conscience of the society and the sentencing process has to
be stern where it should be.
of sentence without considering its effect on the social order in many cases
may be in reality a futile exercise. The social impact of the crime, e.g. where
it relates to offences against women, dacoity, kidnapping, misappropriation of
public money, treason and other offences involving moral turpitude or moral
delinquency which have great impact on social order, and public interest,
cannot be lost sight of and per se require exemplary treatment. Any liberal
attitude by imposing meager sentences or taking too sympathetic view merely on
account of lapse of time in respect of such offences will be result-wise
counter productive in the long run and against societal interest which needs to
be cared for and strengthened by string of deterrence inbuilt in the sentencing
Court will be failing in its duty if appropriate punishment is not awarded for
a crime which has been committed not only against the individual victim but
also against the society to which the criminal and victim belong. The
punishment to be awarded for a crime must not be irrelevant but it should
conform to and be consistent with the atrocity and brutality with which the
crime has been perpetrated, the enormity of the crime warranting public
abhorrence and it should "respond to the society's cry for justice against
also baffles us as to how the High Court uniformly directed reduction of
sentence to the period already undergone. The various periods of custody
suffered by the respondents during trial are as follows:
Kashi Ram 2 years 21
days 10 Lela Krishan 2 years 12 days Kesh lal 17 days Ram Singh 4 months and
20 days Arjun Singh 4 months and 15 days Suraj Singh 4 months and 20 days Bapu
Lal 2 years and 12 days
the High Court directed suspension of sentence. By then they had suffered
custody for about 3 months 15 days more. There was no similarity in the period
of sentence already suffered by the accused persons when the High Court passed
the impugned judgment.
at from any angle the judgment of the High Court is clearly unsustainable,
deserves to be set aside which we direct. The judgment of the trial court
stands restored so far as conviction as well as the sentences are concerned.
appeal is allowed.
(Dr. ARIJIT PASAYAT)