REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1858  OF 2008 [Arising out of SLP (Crl.) 4791/2006]

Mangal Singh & Anr. … Appellants

Versus

Kishan Singh & Ors. … Respondents

J U D G M E N T

AFTAB ALAM,J.

1. Heard counsel for the parties  

2. Leave granted

3. Appellant no.1 is the informant of the case and appellant no.2 is his

father, the injured victim of the offence. They filed this appeal against the

judgment and order dated 18 August 2005 passed by the Gwalior bench of

the Madhya Pradesh High Court in criminal appeal no.283 of 1998. Before

the High Court there were three appellants (respondents before this Court)

who were convicted by the  trial court under section 307 of Penal Code and

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sentenced  to  rigorous  imprisonment  for  five  years  and  fine  of  rupees

1000=00 each; in case of default in payment of fine they were directed to

undergo simple imprisonment  for three months.  The High Court,  by the

judgment  coming  under  appeal,  acquitted  Dault  Singh  (Appellant  no.2

before  the  High  Court)  and  altered  the  conviction  of  Kishan  Singh  and

Devilal(appellants  1  and  3  before  the  High  Court  and  respondent  1&3

before this Court) from section 307 to section 326 of the Penal Code and

reduced  their  custodial  sentence  to  the  respective  periods  that  they  had

already undergone.  In lieu of imprisonment, the High Court punished them

with  fine  of  rupees  3500=00  each  with  the  direction  that  in  default  of

payment of fine they would undergo simple imprisonment for six months.

The High Court further directed that on realisation of the amounts of fine,

Rs.5000=00 should be paid to the injured victim Omkar Lal. At the time of

the High Court judgment Kishan Singh (respondent no.1) had served about

four months in jail and Devi Lal (respondent no. 3) about three months.

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4. On hearing counsel for the parties we are satisfied that in so far as the

acquittal of Daulat singh (respondent no.2) is concerned the judgment of the

High Court calls for no interference. The limited question for consideration

is  whether  the High Court  was justified in altering the conviction of the

other two respondents from section 307 to section 326 of the Penal code and

reducing their sentence to fines only.  

5. We propose  to  state  here  only  such  facts  that  are  germane  to  the

limited issue.  

6. According  to  the  prosecution  case,  as  made  out  in  the  first

information  report  lodged  by  appellant  no.1,  on  14  July  1996  at  about

quarter  past  ten  in  the morning  while  the  informant  and his  father  were

going  through  the  jungle  they  were  ambushed  by  the  accused  persons,

including the three respondents in this appeal. Among the accused the three

respondents  were  armed  with  Pharsas  and  the  other  four  were  carrying

lathis.  All  the seven accused assaulted  the informant’s  father  Omkar Lal

with  Pharsas  and  lathis  on  his  legs  and  hands.  While  beating  him  the

accused also declared their intent not to leave him alive.  

7. All the seven accused were put on trial  on charges under Sections

307, 341, 147, 148 read with Section 149 of the Penal Code. The Trial court

by judgment and order dated 27 September 1998 passed in Sessions Trial

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no. 327/1996 acquitted the four accused who were alleged to be armed with

lathis but convicted the three respondents under section 307 of the Penal

Code  and  passed  sentence  on  them as  stated  above.  In  appeal  the  High

Court modified the conviction and sentence as noted above.  

8. Learned counsel for the appellants submitted that having regard to the

medical  evidence  and  the  nature  of  injuries  the  Trial  Court  had  rightly

convicted the respondents under section 307 and the High Court erred in

altering  the  conviction  under  section  326  of  the  Code.  Learned  counsel

placed strong reliance on the evidence of PW 3, Dr. S. O. Bhola who had

found five incised injuries on the hands and legs of Omkar lal and PW 7 Dr.

Sitaram Singh Raghuvanshi who on the basis of X-ray examination of the

different  injuries  of  Omkar lal  deposed before  the Trial  Court  that  there

were fractures of left radius, right ulna, right fibula and left fibula bones.

Counsel further submitted that Dr. Bhola PW 3 stated before the Trial Court

that  in case no medical  care was provided the injured person could have

died. Counsel submitted that the injuries sustained by appellant no. 2 and

the evidences of the two doctors clearly indicated that the accused intended

to kill him and he could survive only due to timely medical help.  

9. The injuries found on the person of appellant no. 2 are enumerated in

the judgment of the trial court; those were as follows:

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“[1] one incised wound 3 x 1 x bone deep on the right forearm and swelling on the back side and depth was upwards;

[2] Contusion 4 x 1 cm. on the right forearm on the upper portion and possibility of fracture on the back side;

[3]   Incised wound 10 x 2 x bone deep below the right leg and depth downwards and possibility of fracture;

[4] Incised wound 3 x 1 x bone deep below the right leg and 1/3rd portion (sic) deep inside;

[5] Contusion 3 x 1 cm. on the right leg on front portion;

[6] Incised wound 5 x 5 x bone deep below the right side left and on 1/3rd portion in front;

[7] Incised wound 4 x 5 x bone deep below the left leg on front side;

[8] Lacerated wound 5 x 5 x bone deep above ankle joints on 1/3rd portion and chances of fracture;

[9] Incised would 3 x 1 x bone deep below the left leg on 1/3rd portion on outer side and depth inside and upwards;

[10] Incised wound 4 x 1 x bone deep behind the left forearm and depth inside and upwards; and  

[11] Contusion 5 x 1 x bone deep behind the left forearm and the general condition of the patient was bad.”

10. The injury report shows that all the injuries inflicted on appellant no.

2 were either on his legs or arms. Indeed a number of injuries were quite

grievous but it seems the accused were careful not to give any blow on any

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vital part of the body. Had the intention been to kill him one or two blows

on  the  head  or  neck  would  have  served  the  purpose.   It  seems  while

assaulting him ruthlessly the accused aimed all the blows on his legs and

arms apparently to make sure  that  that  would  not  lead  to  his  death.  The

Doctor stated before the court that the injured might have died if medical

care was not given to him but he didn’t say the injuries were sufficient in

the course of nature to cause death.

11. Having regard to the evidence on records we are satisfied that  the

alteration of the respondents’ conviction by the High Court from Sec. 307 to

326 cannot be said to be wrong and unjustified.  

12. But the same view cannot be taken on the question of sentence. In

view of  the  nature  of  injuries  suffered  by  appellant  no.2  only a  fine  of

rupees  3500=00  appears  wholly  inadequate.  In  certain  circumstances  the

court may not feel inclined to send the convict to jail and the offence being

an old one may be a relevant consideration. But in such cases the custodial

sentence should be substituted by heavy fine; something that should pinch

the offender and make him feel and recall the offence committed by him. At

the same time that  should appear to the victim of the offence as at  least

some punishment  to  the offender.  Further,  in  a given case there  may be

considerations that may outweigh the argument in favour of not sending the

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offender to jail simply because the offence was committed long ago. In this

case we feel the High Court has erred in balancing the relevant factors. The

High Court seems to have waived off the custodial sentence and let off the

respondents with a modest fine mainly on two considerations. One, that the

offence  was  committed  in  the  year  1996  and  it  would  serve  no  useful

purpose to send the respondents  to jail  after  ten years of the  occurrence.

And  two,  the  respondents  being  convicted  of  the  offence  of  causing

grievous hurt in place attempted murder. We are unable to agree with the

High Court  on both the counts.  Any inordinate delay in  conclusion  of  a

criminal  trial  undoubtedly  has  highly  deleterious  effect  on  the  society

generally and particularly on the two sides to the case. But it will be a grave

mistake  to  assume that  delay in  trial  does  not  cause acute  suffering  and

anguish to the victim of the offence. In many cases the victim may suffer

even more than the accused. There is,  therefore no reason to give all  the

benefits on account of the delay in trial to the accused and to completely

deny all justice to the victim of the offence. In this case there is nothing to

indicate that the appellants or the prosecution were responsible for the delay

in trial. We are, therefore of the view that the High Court was not right in

substituting the custodial sentence of the respondents to only fines of rupees

3500=00.

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13. Coming to the second reason weighing with the High Court, it is a

mistake to think that as a rule all offences falling under section 326 would

be less serious than the offences falling under section 307 of the Penal Code

and would consequently attract lighter sentence. An offence under section

326 may be actually more serious than another falling under section 307 of

the Code. For instance, acid thrown on the face of a young, unmarried girl

would  come under  section  326  but  it  would  be  far  more serious  than  a

firearm shot  missing  the  victim that  would  fall  under  section  307 of  the

Code.  

14. From the injuries suffered by appellant no.2 it is evident that though

the respondents did not intend to kill him altogether they surely wanted to

leave him crippled for a lifetime. In our opinion therefore the High Court

was not right in letting them off on completing sentence of imprisonment of

merely four months and three months respectively. We accordingly restore

the sentence of rigorous imprisonment given to the respondents 1&3 and

direct that they must serve rigorous imprisonment for two years in addition

to  the  fine  of  Rs.3,500  imposed  by  High  Court;  in  case  of  default  in

payment of fine the respondents would suffer simple imprisonment for six

months. On realisation of the amounts of fine Rs.6000=00 would be paid to

appellant no.2  

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15. In the result the appeal is partly allowed as indicated above.

.........................................J.         [Tarun Chatterjee]

                  ..………………… ……..J.

        [Aftab Alam]

New Delhi, November  21, 2008.

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