State of U.P.  INSC 1702 (6 November 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF
2009 (Arising out of S.L.P. (Crl.) No. 4917 of 2009 Jameel .... Appellant(s)
Versus State of U.P. .... Respondent(s)
This appeal is directed against the judgment and order of the High
Court of Judicature at Allahabad, Lucknow Bench passed in Criminal Appeal No. 8
of 1996 dated 04.07.2007 in and by which, it dismissed the appeal insofar as
the appellant herein is concerned and confirmed the conviction and sentence
imposed on him by the Addl. District and Sessions Judge, Lucknow in Sessions
Trial No. 323 of 1994 under Section 308 IPC for a period of two years.
According to the prosecution, on 21.04.1989, at about 4.00 p.m. in the evening
the accused persons Dastgir and Jameel injured Hasib Mohammad, son of Ikram
Ali-the Complainant assaulting with lathis on the way near granary while
carrying seeds to the fields in village Khwaja Ka Purwa, hamlet of Rojoli under
Police Station Chinhat, District Lucknow. The said incident was witnessed by
Rashid and Siddique. The cause of the incident as stated was that one day
before the incident, the accused persons Jameel and Dastagir reaped two bundles
of hay more from the fields of informant Ikram Ali. It was he, who made a
complaint to the police which was registered at 7.30 p.m. on 21.04.1989.
sent to Balrampur hospital for medical examination where Dr. T.N. Singh, the
emergency medical officer Balrampur, Lucknow examined him at 8.45 p.m. on
21.04.1989 and found the following injuries:- 2 i) One ruptured wound 4 X 1.5
cm deep under observation on the left side of the head, 7 cm above the
was bleeding and swelling around the injury.
X-ray of injury on the head of Hasib was conducted on 22.04.1989 by Dr. Amit
Kumar - Radiologist Balrampur. After completion of the investigation, charge-
sheets being exhibits K-5 and K-6 were filed against Jameel and Dastgir on
31.05.1989 and 09.06.1989 respectively under Section 308 IPC.
prosecution examined the informant Ikram Ali as PW-1, Smt. Mehrunisa wife of
injured Hasib as PW-2, injured Hasib as PW-3, Dr. T.N. Singh as PW-4, Dr. Amit
Kumar as PW-5 and Police Inspector/Investigating Officer Shri Mahraj Singh as
accused denied the charges leveled against them in the statement under Section
313 CrPC and stated that the case was instituted due to enmity. In defence, no
evidence was produced on behalf of the accused persons.
they filed an application stating that the 3 prosecution case does not fall
under Section 308 and it falls under Section 324 IPC.
trial Court found that in the incident both the accused persons participated in
inflicting injury to Hasib with the common intention and were liable equally in
inflicting one injury on Head, therefore, the offence under Section 308 is
proved against the accused persons. In view of the said conclusion, the trial
Court convicted the accused persons i.e. Dastgir and Jameel under Section 308
IPC on 22.12.1995 and punished with two years rigorous imprisonment.
Aggrieved by the aforesaid conviction and sentence, both the accused persons
preferred Criminal Appeal No.8 of 1996 before the High Court of Judicature at
Allahabad, Lucknow Bench. The High Court by the impugned order and taking note
of the statement of the injured found Dastgir not guilty and acquitted him,
however, confirmed the conviction and sentence insofar as Jameel and dismissed
his appeal on 04.07.2007. Questioning the 4 same, the present appellant-Jameel
has filed the above appeal by way of special leave.
We heard Mr. R.K. Singh, learned counsel for the appellant and Mr.
Ratnakar Das, learned senior counsel for the State of U.P.
On 17.07.2009, this Court issued notice only on the question of
sentence; hence, there is no need to traverse all the factual details as stated
in the trial Court and the High Court. The only question that arises for
consideration in this appeal is whether the quantum of sentence, namely, two
years' rigorous imprisonment awarded for an offence under Section 308 IPC is
reasonable and acceptable.
Learned counsel appearing for the appellant, after taking us
through all the relevant materials, contended that in the facts and
circumstances led in by prosecution the only offence made out is Section 323
and in view of the fact that the appellant had undergone nearly eight months in
custody, the conviction and sentence awarded by the trial Court and confirmed
by the High Court are to be modified accordingly, and he may be set at liberty
forthwith. On the other hand, 5 learned senior counsel appearing for the State
of U.P. by pointing out the injury, medical report and ingredients of Sections
320, 324 and 325 IPC submitted that taking note of the head injury by use of
lathi which is a grievous injury in terms of clause 7 of Section 320 IPC as
certified by doctor, there is no ground for interference and reduction of
sentence is not warranted.
We have carefully perused all the oral and documentary evidence as
well as considered the rival contentions of both the parties. In view of the
limited notice only as regards to question of sentence, let us find out whether
the prosecution has established its case and award of two years' rigorous
imprisonment is quite reasonable and acceptable.
Before going into the acceptability or reasonableness about the
sentence awarded to the appellant-accused, let us consider the well-established
principles in awarding proper and appropriate sentence.
Recently, this Court, in Gurmukh Singh v. State of Haryana, JT
2009 (11) SC 122 = 2009 (11) SCALE 688, 6 enumerated the various considerations
which will be taken into account while determining the sentence which read as
These are some factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. These factors are only
illustrative in character and not exhaustive. Each case has to be seen from its
special perspective. The relevant factors are as under:
or previous enmity;
Whether the incident had taken place on the spur of the moment;
intention/knowledge of the accused while inflicting the blow or injury;
Whether the death ensued instantaneously or the victim died after several days;
gravity, dimension and nature of injury;
age and general health condition of the accused;
Whether the injury was caused without pre- meditation in a sudden fight;
nature and size of weapon used for inflicting the injury and the force with
which the blow was inflicted;
criminal background and adverse history of the accused;
Whether the injury inflicted was not sufficient in the ordinary course of
nature to cause death but the death was because of shock;
of other criminal cases pending against the accused;
Incident occurred within the family members or close relations;
conduct and behaviour of the accused after the incident. Whether the accused
had taken the injured/the deceased to the hospital immediately to ensure that
he/she gets proper medical treatment? These are some of the factors which can
be taken into consideration while granting an appropriate sentence to the
accused. The list of circumstances enumerated above is only illustrative and
not exhaustive. In our considered view, proper and appropriate sentence to the
accused is the bounded obligation and duty of the court. The endeavour of the
court must be to ensure that the accused receives appropriate sentence, in
other words, sentence should be according to the gravity of the offence. These
are some of the relevant factors which are required to be kept in view while
convicting and sentencing the accused."
The general policy which the courts have followed with regard to
sentencing is that the punishment must be appropriate and proportional to the
gravity of the offence committed. Imposition of appropriate punishment is the
manner in which the Courts respond to the society's cry for justice against the
criminals. Justice demands that Courts should impose punishment befitting the
crime so that the Courts reflect public abhorrence of the crime.
In operating the sentencing system, law should adopt the corrective
machinery or deterrence based on factual matrix. By deft modulation, sentencing
process be stern where it should 8 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.
It was 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. The sentencing Courts are expected to consider all relevant facts
and circumstances bearing on the question of sentence and proceed to impose a
sentence commensurate with the gravity of the offence.
As far as complicity of the appellant-Jameel is concerned, the
prosecution has established its case beyond doubt that he hit on the head with
a lathi and injured Md. Hasib. It has been established and proved from the
statement of the injured PW-3 and his wife PW-2. It is also clear from the
evidence of 9 PW-2 that she had accompanied her husband-PW-3 and father-in-law
to the Police Station.
From the medical report Ext. Ka-2 and supplementary medical
report, it is clear that injury was inflicted on the left side head i.e. 7 cm
above left eye-brow. There was a fracture of left parital bone and according to
Dr. Amit Kumar - PW-5 the bone of the head of Hasib was found fractured. As per
Section 323 IPC, whoever, except in the case provided for by Section 334,
voluntarily causes hurt, shall be punished with the imprisonment of either
description for a term which may extend to one year, or with fine which may
extend to one thousand rupees, or with both. In the light of the evidence of
the doctors' medical report, Section 323 is not at all applicable as argued by
learned counsel for the appellant. On the other hand, grievous hurt has been
defined in Section 320 which reads thus:- "320. Grievous hurt.--The
following kinds of hurt only are designated as "grievous":--
privation of the sight of either eye.
privation of the hearing of either ear, 10 Fourthly.--Privation of any member
or permanent impairing of the powers of any member or joint.
disfiguration of the head or face.
or dislocation of a bone or tooth.
hurt which endangers life or which causes the sufferer to be during the space
of twenty days in severe bodily pain, or unable to follow his ordinary
of strong medical evidence in the form of oral and documentary, the injuries
sustained by the injured PW-3 comes under `Seventhly' of Section 320 i.e.
fracture or dislocation of a bone. Voluntarily causing hurt by dangerous
weapons or means has been explained in Section 324 and punishment for
voluntarily causing grievous hurt is with imprisonment which may extend to
seven years and shall also be liable to fine. The trial Court as well as the
High Court, taking note of the enmity and intention of the accused and nature
of injuries, evidence of both oral and documentary and medical evidence,
concluded and awarded punishment under Section 308 IPC. The relevant Section is
as follows:- "308. Attempt to commit culpable homicide.--Whoever does any
act with such intention or knowledge and under such circumstances that, if he
by that act caused death, he would be 11 guilty of culpable homicide not
amounting to murder, shall be punished with imprisonment of either description
for a term which may extend to three years, or with fine, or with both; and, if
hurt is caused to any person by such act, shall be punished with imprisonment
of either description for a term which may extend to seven years, or with fine,
or with both."
of the materials placed by prosecution, analyzed by the trial Court and
approved by the High Court, we are not inclined to reduce the sentence. We have
already pointed out about the proof regarding enmity, intention and causing
those circumstances and in the light of the materials placed, we are of the
view that there is no valid ground for reduction of sentence as claimed by the
the appeal fails and the same is dismissed.
.........................................J. (P. SATHASIVAM)
..........................................J. (J.M. PANCHAL)
NOVEMBER 06, 2009.