REPORTABLE 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

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge  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

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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/-.

3. Prosecution 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 his  mouth.

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

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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 altered.

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4. In  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 caused death.

5. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

6. With  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.

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7. The 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 bag.

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.

8. 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

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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.”  

9. 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

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law, if there is present an intent coupled with some overt act in execution

thereof.  

10. 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.        

11. 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), R. Parkash v. State of Karnataka (JT 2004 (2)

SC 348) and State of Madhya Pradesh v. Saleem @ Chamaru & Anr. [2005

(5) SCC 554].

12. 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.

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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.  

13. 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).

14. 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.

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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.

15. 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.

16. 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

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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.

17. 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”.  

18. It  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

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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

19. Thereafter 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.   

20. Looked 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.

21. The appeal is allowed.

……………………………… …….J.

(Dr. ARIJIT PASAYAT)

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……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, February 2, 2009

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