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CASE NO.: Appeal (crl.)  1334 of 2004

PETITIONER: State of Madhya Pradesh

RESPONDENT: Kedar Yadav      

DATE OF JUDGMENT: 30/11/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.  

       Challenge in this appeal is to the judgment of a learned  Single Judge of the Madhya Pradesh High Court.  By the  impugned judgment learned Single Judge while upholding the  conviction of the respondent for an offence punishable under  Section 307 of the Indian Penal Code, 1860 (in short the ’IPC’)  reduced the sentence to the period already undergone which  was about 1 year and three months.  The trial court had found  the respondent guilty and had imposed sentence of ten years  rigorous imprisonment and fine of Rs.1,000/- with default  stipulation.

       Background facts in a nutshell are as follows:

The respondent allegedly assaulted the complainant-  Parvat Singh by an axe causing several grievous injuries.   Complainant Parvat Singh (PW 10) lodged a report at the  police station to the effect that while he was doing night duty  at Dr. Ajay Lal Christian Hospital, the accused hit him on his  head by the sharp edge of an axe and other parts of the body.   Other persons were present there, who witnessed the incident.   They carried the complainant to the hospital for treatment.  Information was lodged at the Police Station and investigation  was undertaken.  The informant was treated at the hospital for  multiple injuries sustained by him. After completion of  investigation, charge sheet was filed and the matter was taken  up for trial.  Accused took the plea of false implication.   According to the medical report and the statement of the  doctor, there was a cut wound on the upper part of partial  bone which was straight cut and there was a parallel straight  cut below said injury and there was a cross cut wound on the  left acromiyo caviculas wound and the doctor had advised to  get x-ray of head, chest and left shoulder.  According to  statement of witnesses and doctors and medical report on the  day of incident there were injuries on the body of complainant  caused by sharp edged weapon.  Therefore, there was no  dispute as to presence of injuries on the body of the  complainant.

       Placing reliance on the evidence of the victim and others,  the trial court found the accused guilty and convicted him and

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imposed sentence as afore-noted.  The trial court took note of  the evidence of the Doctor who had first examined the  informant. The trial court noted that in the opinion of the  doctor all the injuries were caused by sharp axe or another  sharp-edged weapon and was enough to cause death of the  victim.  The doctor had advised to get X-ray of head, chest and  left shoulder of the victim.  Several fractures were also noticed.   Taking note of the serious nature of the injuries inflicted and  the weapon used, the trial court held the accused-respondent  guilty and imposed sentence as afore-noted.

Respondent preferred an appeal before the High Court.   Learned counsel appearing before the High Court for the  accused-respondent did not question the finding of conviction.   The only prayer related to sentence. The High Court without  any discussion merely observed that the accused had  undergone sentence of about one year and 3= months, at the  commission of offence was aged about 20 years and an  uneducated labourer coming from rural area.  Accordingly, the  period of sentence of imprisonment was reduced to the period  already undergone.

Learned counsel for the appellant-State submitted that  the sentence imposed by the High Court is very much on the  lenient side.  In a case of this nature no leniency should have  been shown.  

A bare perusal of the doctor’s evidence shows that the  accused in a merciless and cruel manner attacked the victim  on his head and shoulder causing grievous injuries. Therefore,  the reduction of sentence was uncalled for.

Learned counsel for the respondent on the other hand  submitted that though confession appears to have been made  before the High Court about conviction that was really not  called for.  In any event, the occurrence took place nearly two  decades back.  Even if prosecution version is accepted in its  totality, the offence punishable under Section 307 IPC is not  made out and at the most it is one under Section 324 IPC.   Referring to a judgment of this Court in Kundan Singh v. State  of Punjab (1982 (3) SCC 213) it is submitted that the High  Court has rightly reduced the period of sentence.   

Though it is not necessary to examine whether Section  307 IPC had any application, in view of the stand of the  respondent that in reality that Section 307 IPC had no  application, we have considered that plea.

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 Naidu (AIR  1991 SC 1463).                   

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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 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.

The 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.

Imposition 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 system.  

The 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 the criminal".  

       It is to be noted that the alleged offence was of very  serious nature.  Section 307 relates to attempt to murder.  It  reads as follows:  

"Whoever does 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  description for a term which may extend to  ten years, and shall also be liable to fine; and,

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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."  

To 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.  

It 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 hurt.                 

This 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) and R. Parkash v.  State of Karnataka (JT 2004 (2) SC 348).  

                 In Sarju Prasad v. State of Bihar (AIR 1965 SC 843) it  was observed in para 6 that mere fact that the injury actually  inflicted by the accused did not cut any vital organ of the  victim, is not by itself sufficient to take the act out of the  purview of Section 307.

Whether 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. The circumstances 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.           Section 307 deals with two situations so far as the  sentence is concerned.  Firstly, whoever does 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  description for a term which may extend to ten years, and

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shall also be liable to fine; and secondly 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 indicated in  the first part i.e. 10 years.   

The nature of the injuries sustained, the weapon used  and the opinion of the doctors as noted above to the effect that  the injuries were enough to cause death, the trial court had  rightly convicted the accused-respondent for offence  punishable under Section 307 IPC. The decision In Kundan  Singh’s Case (supra) has no application to the facts of the  present case.  The decision was rendered in the background of  the factual position as noticed in the judgment.   

Considering the principles indicated above, the inevitable  conclusion is that the High Court was not justified in reducing  the sentence to the period already undergone. Taking into  account all relevant aspects including long passage of time  which per se is not a ground for reduction in sentence,  order  of the High Court, so far as it relates to the reduction of period  of sentence, is set aside.  The respondent shall undergo  custodial sentence for three years subject to such remissions  as may be available in law. Additionally, he shall pay a fine of  Rs.10,000/-. Deposit of the amount shall be made within  three months from today.  If the amount is not deposited the  default sentence will be one year rigorous imprisonment.  In  case the amount is deposited, a sum of Rs.8,000/- shall be  paid to the victim-Parvat Singh.

Appeal is allowed to the aforesaid extent.