REPORTABLE IN THE 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)

J U D G M E N T  

P. Sathasivam, J.

1) Leave granted.  

2) 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.

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3) Brief facts:

a) 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.  Injured Md.  

Hasib  was  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:-

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i) One  ruptured  wound  4  X  1.5  cm  deep  under  

observation on the left side of the head, 7 cm above  

the eye-brow.   

ii) It was bleeding and swelling around the injury.   

b) The 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.  

c) The  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 PW-6.   

d) The 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.  

However,  they  filed  an  application  stating  that  the  

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prosecution case does not fall under Section 308 and it  

falls under Section 324 IPC.  

e) The  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.  

f) 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  

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same, the present appellant-Jameel has filed the above  

appeal by way of special leave.

4) We  heard  Mr.  R.K.  Singh,  learned  counsel  for  the  

appellant and Mr. Ratnakar Das, learned senior counsel  for  

the State of U.P.  

5) 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.  

6) 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,  

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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.   

7) 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.   

8) 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.  

9) Recently,  this  Court,  in  Gurmukh Singh v.  State  of  

Haryana, JT  2009  (11)  SC  122  =  2009  (11)  SCALE  688,  

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enumerated  the  various  considerations  which  will  be  taken  

into  account  while  determining the sentence  which read as  

under:

“24. 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:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the  moment;

c)  The intention/knowledge  of  the  accused while  inflicting  the blow or injury;

d) Whether the death ensued instantaneously or the victim  died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre- meditation in  a sudden fight;

h)  The  nature  and  size  of  weapon  used  for  inflicting  the  injury and the force with which the blow was inflicted;

i)  The  criminal  background  and  adverse  history  of  the  accused;

j)  Whether  the  injury  inflicted  was  not  sufficient  in  the  ordinary course of nature to cause death but the death was  because of shock;

k)  Number  of  other  criminal  cases  pending  against  the  accused;

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l)  Incident  occurred  within  the  family  members  or  close  relations;

m)  The  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.”

10) 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.

11) 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  

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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.

12) 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.

13) 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  

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PW-2  that  she  had  accompanied  her  husband-PW-3  and  

father-in-law to the Police Station.

14) 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”:--

First.—Emasculation.

Secondly.—Permanent privation of the sight of either eye.

Thirdly.—Permanent privation of the hearing of either ear,

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Fourthly.—Privation of any member or joint.

Fifthly.—Destruction or permanent impairing of the powers  of any member or joint. Sixthly.—Permanent disfiguration of the head or face.

Seventhly.—Fracture or dislocation of a bone or tooth.

Eightly.—Any 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 pursuits.”

In  view 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  

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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.”

In view 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  

grievous hurt.

15) In 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  appellant.  

Consequently, the appeal fails and the same is dismissed.   

.…….…….……………………..J.                                                   (P. SATHASIVAM)

    ...…………………………………J.

                              (J.M. PANCHAL)                                           

NEW DELHI; NOVEMBER 06, 2009.

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