Madhya Pradesh High Court
Ammu @ Amar vs The State Of Madhya Pradesh on 9 March, 2022
Author: Gurpal Singh Ahluwalia
Bench: G.S. Ahluwalia
1 CRA No.1646/2021
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.1646/2021
.........Appellant (s): Ammu @ Amar & Anr.
Versus
.......Respondent(s) : State of M.P.
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Shri Sunil Kumar Jain, Counsel for appellants.
Shri A.K. Nirankari, Counsel for the respondent/State.
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Date of hearing : 24/02/2022
Date of judgment : 9th /03/2022
Whether approved for reporting :
JUDGMENT
(9th /03/2022) This criminal appeal under Section 374 of Cr.P.C. has been filed against the judgment dated 5.3.2021 passed by 6 th Additional Sessions Judge, Shivpuri, District Shivpuri in S.T.No.34/2017 by which the appellants have been convicted under Sections 307/34 of IPC and have been sentenced to undergo the rigorous imprisonment of seven years and a fine of Rs.1,000/- with default stipulation.
2. The necessary facts for disposal of the present appeal in short are that on 21.11.2016 at about 9:00 PM, the complainant Govind Balmik was sitting outside his house and at that time the appellants came there and scolded the complainant as to why he is in support of 2 CRA No.1646/2021 Sunil Balmik. When the complainant objected to it, it is alleged that the appellant No.1 fired a gunshot causing injury on the left shoulder of the complainant. The appellant No.2 was instigating that he should be killed. The complainant somehow managed to save his life by running from the spot. The incident was witnessed by Padam Balmik and Swaraj. Dehati Nalsi Ex.P/1 was recorded in the hospital and on the basis of Dehati Nalsi, FIR in Crime No.1039/2016 was registered by Police Station Kotwali, District Shivpuri. The statements of the witnesses were recorded. The appellants were arrested. Firearm was seized from the possession of the appellant No.1. The police after completing the investigation filed the charge sheet under Sections 294, 307/34 of IPC and under Section 25/27 of the Arms Act.
3. The Trial Court by order dated 28.2.2017 framed charges under Sections 294, 307/34 of IPC.
4. The appellants abjured their guilt and pleaded not guilty.
5. The prosecution in order to prove its case examined Tillu @ Govind (PW-1), Padam Balmik (PW-2), Swaraj Khare (PW-3), Badal (PW-4), Girja Shankar Dwarg (PW-5), Dr. Arun Jhasya (PW-6), Rakesh Singh Jadon (PW-7), Jankilal Verma (PW-8), Sunilsingh Jat (PW-9), Dr. Manisha Singh Jadon (PW-10) and Ashok Parihar (PW-
11).
6. The appellants examined Ajji @ Ajit (Appellant No.2) as DW-1 in their defence.
7. The Trial Court by impugned judgment and sentence, convicted 3 CRA No.1646/2021 the appellants for offence under Sections 307/34 of IPC and acquitted them for offence under Section 294 of IPC and sentenced them to jail imprisonment as mentioned above.
8. Challenging the conviction recorded by the Court below, it is submitted by the counsel for the appellants that the prosecution has failed to prove that the gunshot was fired by the appellant No.1. Even otherwise the appellant No.2 has not fired any gunshot. His one leg was already amputated and he is a handicapped person. He has been falsely implicated. Even otherwise, the appellant No.2 was in jail from 2.2.2016 till 17.3.2017 as an under trial and is in jail for the last one year as a convicted appellant. Thus, it is clear that he has already undergone the actual jail sentence of one year and approximately four months. Similarly, appellant No.1 was in jail from 2.12.2016 till 12.7.2017 as an under trial and he is in jail from the date of his conviction, therefore, it is clear that the appellant No.1 has undergone the actual jail sentence of approximately one year and nine months and looking to the manner in which the offence is alleged to have taken place, the period already undergone by the appellants is sufficient to meet the ends of justice. The appellant No.2 has been falsely implicated. One leg of the appellant No.2 was already amputated and, therefore, he was not in a position to commit any offence. Further, the direction of the bullet which was found stuck in the body of the injured clearly indicates that the incident has taken place not in the manner in which it has been projected by the 4 CRA No.1646/2021 witnesses.
9. Per contra, the appeal is vehemently opposed by the counsel for the respondent/State. It is submitted that Tillu @ Govind (PW-1) has specifically stated that both the appellants came and scolded as to why he is along with one Sunil Balmik and on this pretext, they started abusing him and when he objected to it, then the appellant No.2 fired a gunshot causing injury on the left side of the chest. The ocular evidence is supported by the medical evidence as well as other eyewitnesses. Since the gunshot injury was caused on the vital part of the body, therefore, the knowledge and intention on the part of the appellants is writ large.
10. Heard the learned counsel for the parties.
11. Tillu @ Govind Balmik (PW-1) is injured eyewitness. He has stated that on 21.11.2016 at about 9:00 PM he was sitting in his house. At that time both the appellants came and started abusing him. When he objected to it, then appellant No.2 Ajji @ Ajit instigated the appellant No.1 Ammu @ Amar to kill him and, accordingly, the appellant No.1 Ammu @ Amar fired a gunshot causing injury on the left side of his chest. This witness somehow ran inside his house in order to save his life. Dehati Nalsi was lodged in District Hospital, Shivpuri Ex.P/1. This witness was admitted in District Hospital, Shivpuri and thereafter he was referred to Gwalior. This witness was cross-examined. In cross-examination he has admitted that the appellants are known to him for the last several years but denied that 5 CRA No.1646/2021 he has an old enmity. He further stated that he is working in Municipal Council and Sunil Balmik is his brother being the member of same caste. Sunil is working as Daroga in Municipal Council. He denied that Sunil had provided the job to this witness in the Municipal Council. He also denied about any dispute between the appellant No.1 and Sunil Balmik. He denied for want of knowledge that on 14.10.2013, Sunil and his friends and his brothers Nikki, Vishal etc. had made an attempt to kill Ajji, as a result the appellant No.2 Ajji had lost his one leg. He also denied for want of knowledge that the appellant No.2 Ajji @ Ajit had lodged a FIR Ex.D/1 against Sunil etc. He denied for want of knowledge that the appellants No.1 and 2 are the cousin brothers of Sunil. He denied that at the instance of Sunil, he is giving a false evidence against the appellants. He admitted that his house is situated in a dense residential colony and various houses are situated around his house. He further admitted that lot of persons had gathered after the incident including Barelal Kori, Padam Balmik, Dharmendra Goswami. He denied that the appellant No.2 is the resident of Karonda Colony whereas the appellant No.1 is the resident of Sriram Colony. He on his own claimed that both the appellants are resident of Sriram Colony. He further stated that at the time of incident, street light was ON and there was sufficient light. He denied that the incident took place in front of an abandoned house and not in front of the house of this witness. He denied that after sustaining the injury he had fell unconscious. When a question was 6 CRA No.1646/2021 put to this witness that AJK Police Station and Kotwali Police Station are situated at a nearby place, then why the FIR was not lodged in those police stations, then it was replied by this witness that initially they were interested in his treatment. He further stated that he took about 10 to 15 minutes to reach to District Hospital, Shivpuri. He claimed that Dehati Nalsi was lodged in the hospital. He denied that no Dehati Nalsi was lodged by him. He denied that the incident was committed by some unknown persons and at the instance of Sunil he has given a false evidence against the appellants. He denied that it was dark at the time of incident.
12. Padam Balmik (PW-2) has supported the prosecution case. He has stated that on the date of incident it was about 9:00 PM. The injured Tillu @ Govind (PW-1) was standing in front of his house. Both the accused persons came there and started abusing the injured Tillu @ Govind on the pretext that he is supporting Sunil. When it was objected by Tillu @ Govind, then at the instigation of the appellant No.2, the appellant No.1 fired a gunshot causing injury on the left side of his chest near his shoulder and thereafter both the appellants ran away. Tillu was shifted to District Hospital, Shivpuri. Spot map Ex.P/2 was prepared on the next day. In cross-examination, he denied that he has come to the Court for giving evidence at the instance of Tillu @ Govind. He admitted that he has good relationship with Tillu @ Govind but denied that he is deposing in his favour because of his relationship. He on his own claimed that the 7 CRA No.1646/2021 appellants also belong to his caste and, therefore, he is also having good relationship with them. He denied that he is giving a false evidence against the appellants. He further stated that he had witnessed the incident from the distance of 20 steps. He had heard the noise of gunshot. He had seen the appellants coming on a vehicle and had also escaped on the same vehicle. He claimed that he had seen Ajit firing a gunshot. He denied that any quarrel had taken place between Sunil and Ajji @ Ajit as a result the leg of Ajji @ Ajit was amputated. He admitted that Ajji @ Ajit uses crutch for walking. Sunil and Ajji @ Ajit are known to each other. He denied for want of knowledge that there is any enmity between Sunil and the accused persons. His house is at a distance of 40-50 steps from the house of injured Govind. He further stated that sometimes he smoke Biri and liquor. He never gets work on every day and on the date of incident he was in his house and had left his house at about 6:00 PM and remained outside his house upto 9:00 PM. While he was returning back after watching the Barat, he had seen the accused persons. The complainant had fallen unconscious. He stated that he had not given any information at the time of preparation of spot map Ex.P/2 but thereafter clarified that spot map Ex.P/2 was prepared as per his instructions.
13. Swaraj Khare (PW-3) is also one of the eyewitness and has also supported the prosecution case.
14. Badal (PW-4) has stated that the appellants were arrested in his 8 CRA No.1646/2021 presence vide seizure memo Ex.P/3 and P/4. The memorandum of appellant No.1 Ammu @ Amar is Ex.P/5 and, accordingly, .12 bore country made pistol was recovered from the possession of the appellant No.1 vide seizure memo Ex.P/6.
15. Girja Shankar Dwarg (PW-5) is the armorer and had inspected the country made pistol and found that it was operational and his ballistic report is Ex.P/7.
16. Dr. Arun Jhasya (PW-6) had medically examined the injured. He has stated that on 21.11.2016 he was posted in District Hospital, Shivpuri. The injured was conscious and well oriented. There was an entry wound of 4cm x 1.5 cm. almost circular in shape over left and mid sub clavicular region (12-15 cm. above the left nipple). Direction obliquely upward, laterally to the left shoulder. Margins were irregular and inverted as well as inflamed. He was admitted in ICU and referred for surgical treatment. The MLC is Ex.P/8. The x-ray was done by this witness and in the x-ray report, one radio opaque shadow was found in left scapular region. X-ray report is Ex.P/10. This witness was cross-examined and he has stated that the injured was conscious and he was brought at 9:00 PM. The witness had informed that he has sustained a gunshot injury but had not disclosed the name of accused persons. Thereafter, this witness on his own clarified that he does not re-collect as to whether he asked the name of the assailants or not. The injury was measured with the help of scale but the depth was not measured. The injured was referred to 9 CRA No.1646/2021 Surgical Specialist. He further stated that if an explosive substance during the marriage hits a person, then he can sustain the injury which was sustained by the injured. The injury was caused from a distance approximately 6 feets. Weapons were not produced before him. There was no blackness around the injury. The skin tears were inverted. He also clarified that it is not necessary that in every gunshot injury, blackness should be found. He clarified that it depends from which distance the gunshot is fired.
17. Rakesh Singh Jadon (PW-7) had recorded the FIR Ex.P/12 on the basis of Dehati Nalsi Ex.P/1. The information to the concerning Court was sent on 21.11.2016. The counter copy of FIR is Ex.P/13.
18. Jankilal Verma (PW-8) is posted in Tahsil Office, Shivpuri. He had produced the diary as well as the seized weapon in a sealed cover before the District Magistrate who had seen the sealed country made pistol as well as the case diary and thereafter issued the sanction for prosecution under Arms Act vide order Ex.P/14.
19. Sunilsingh Jat (PW-9) has stated that on the basis of Dehati Nalsi, Crime No.1039/2016 was registered for offence under Sections 307, 294, 34 of IPC and the FIR is Ex.P/15 and its photocopy is Ex.P/15C. The copy of FIR was sent to the Court of CJM on 21.11.2016 and is at serial No.3170 of inward/outward book which is Ex.P/16 and its photocopy is Ex.P/16C. The counter copy of the FIR was received in the Court of CJM on 22.11.2016 which is mentioned in Dak Book Ex.P/17 and its photocopy is Ex.P/17C. 10 CRA No.1646/2021
20. Dr. Manisha Singh Jadon (PW-10) is a Surgical Specialist who had treated the injured. She has stated that the foreign body was not removed during operation. As Dr. Bajoriya had expressed the possibility of fracture and, accordingly, the shoulder was immobilized and was referred to Surgical Department and at the request of the complainant he was discharged on 30.11.2016. The case sheet of the complainant is Ex.P/18 which runs in 24 pages. In cross-examination, she has stated that the complainant was well oriented and was conscious. However, he was a slightly discomfortable. She further stated that the complainant had informed that in the marriage ceremony, some unknown persons had shot him and some persons present in the marriage ceremony have took him to District Hospital, Shivpuri. The complainant had suffered only entry wound and there was no exit wound. The firearm was not produced before her for her query.
21. Ashok Parihar (PW-11) is the Investigating Officer.
22. Thus the case is based on the evidence of the complainant Tillu @ Govind (PW-1), Padam Balmik (PW-2) and Swaraj Khare (PW-3). A country made pistol was also seized from the possession of the appellant No.1 Ammu @ Amar and the country made pistol is Article- 1 as well as the sanction for prosecution is Ex.P/14.
23. Challenging the conviction recorded by the Court below, it is submitted by the counsel for the appellants that since the injured Tillu @ Govind (PW-1) was a close associate of Sunil with whom the 11 CRA No.1646/2021 appellant No.2 Ajji @ Ajit had an enmity and Ajji @ Ajit was assaulted by Sunil and others and as appellant No.1 Ajji @ Ajit had sustained grievous injury resulting in amputation of his left leg and thus it was not possible for him to involve in any offence. Since the prosecution of the appellant is a direct consequence of motive, therefore, the evidence of the witnesses is not reliable.
24. So far as the incapacity of appellant No.2 Ajji @ Ajit to get himself involved in an offence is concerned, the same is a far fetched imagination, although the appellants have relied upon the MLC of appellant No.2.
25. Appellant No.2 Ajji @ Ajit examined himself as DW-1. He has stated that on his report, Crime No.721/2013 was registered against Sunil, Santosh, Vishal, Kalu, Nikki and Kallu Sweeper and his MLC is Ex.D/1. On account of injuries sustained by him, his left leg was amputated. The said case is still pending in the Court of CJM, Shivpuri. The accused persons was pressurizing him to enter into a compromise and since he refused to do so, therefore, he has been falsely implicated. He further stated that he had made complaints to the Superintendent of Police, Shivpuri on 25.6.2014 and 1.7.2014 regarding threat which are Ex.D/6 and D/7. Thereafter one complaint was made to Superintendent of Police, Shivpuri with regard to abusing by Santosh Ex.D/8. His mother had given complaints to the Superintendent of Police, Shivpuri on 28.3.2017 as well as to the DIG, Gwalior on 27.3.2017 which are Ex.D/9 and D/10. A complaint 12 CRA No.1646/2021 was also made to the Police Headquarters, Bhopal which is Ex/D/11. A complaint on CM Helpline was also made on 26.11.2016 which is Ex.D/12 and the medical report is Ex.D/13. It was further alleged that for the above-mentioned reasons, Sunil and Santosh had caused self- inflected injury to the injured Tillu @ Govind in order to falsely implicate him and his brother. In cross-examination, he admitted that there is an interpolation on the date of Ex.D/8, D/9, D/10 and D/11. He denied that false complaints/applications were prepared. He further admitted that in Crime No.721/2013, the injured Tillu @ Govind was not an accused and he has never extended a threat nor had ever pressurized him to enter into a compromise. He further admitted that in all those applications/complaints there is no allegation against Tillu @ Govind. He denied that on 21.11.2016 he and his brother had shot his brother Tillu @ Govind.
26. It is the case of the appellants that one leg of the appellant No.2 Ajji @ Ajit has been amputated. Padam Balmik (PW-2) has also admitted that the appellant No.2 Ajji @ Ajit uses crutch. Thus there is no reason to disbelieve the MLC Ex.D/1, according to which multiple fractures with corresponding injuries were found on both legs and right hand. The appellant No.2 has also relied upon the disability certificate to show that his left leg has been amputated.
27. Now the only question for consideration is as to whether the appellant No.2 Ajji @ Ajit could have committed an offence as alleged against him or he has been falsely implicated specifically 13 CRA No.1646/2021 when there is no allegation of firing a gunshot.
28. The State in its reply to I.A.No.7602/2021, an application for suspension of sentence and grant of bail has annexed the criminal antecedents of the appellant No.2 Ajji @ Ajit. According to which, as many as 23 criminal cases were registered against the appellant No.2 Ajji @ Ajit including the present one. According to appellant No.2 Ajji @ Ajit on 14.10.2013 he was badly beaten, as a result, his left leg was amputated but as per the criminal history, two more offences i.e. Crime No.351/2016 and 587/2016 were registered apart from the present one. Crime No.351/2016 was registered for offence under Sections 341, 294, 323, 506, 34 of IPC and Crime No.587/2016 was registered for offence under Sections 294, 323 of IPC and under Section 3 of Damage of Public Property Act, 1984. Thus it is clear that even after the amputation of one leg of the appellant No.2 Ajji @ Ajit, he was still involved in commission of offences and two more offences were registered against him in the year 2016 apart from the present case.
29. When the attention of the counsel for the appellants was drawn towards the reply filed by the State along with the criminal antecedents of appellant No.2, then it was fairly conceded by the counsel for the appellants that the appellant No.2 Ajji @ Ajit has a criminal history and two more offences apart from the present case were registered against him in year 2016 i.e. after the amputation of his leg. Thus, merely because one leg of appellant No.2 Ajji @ Ajit 14 CRA No.1646/2021 was amputated, cannot be a ground to discard the evidence of the prosecution to hold that he has been over and falsely implicated.
30. So far as the motive is concerned, it is well established principle of law that motive is a double edged weapon and on one hand if it provides a motive to falsely implicate an accused but at the same time it also provides a basis for committing an offence. It is the case of the appellants that since the injured Tillu @ Govind (PW-1) is a close associate of Sunil who was one of the assailant causing multiple injuries to the appellant No.2 Ajji @ Ajit, therefore, Sunil and Santosh have themselves caused injury to Tillu @ Amar to implicate them. It is true that the injured Tillu @ Amar is also working in Municipal Council and Sunil is also working in Municipal Council. Ajji @ Ajit (DW-1) had admitted that injured Tillu @ Govind had never threatened him nor he was an accused in Crime No.721/2013 registered at Police Station Kotwali, District Shivpuri, according to which, the appellant No.2 Ajji @ Ajit was badly beaten which ultimately resulted in amputation of his leg. According to the appellants themselves, the injured Tillu @ Govind (PW-1) was close associate of Sunil but the injured Tillu @ Govind (PW-1) had never involved himself in any offence of beating the appellant No.2 Ajji @ Ajit or ever threatened him. Therefore, there was no good reason for the injured Tillu @ Govind to get himself shot in order to falsely implicate the appellants. On the contrary, according to appellants themselves since the injured Tillu @ Govind was close associate of 15 CRA No.1646/2021 Sunil, therefore, there is every possibility that in order to pressurize Sunil, the appellants might have caused gunshot injury to Tillu @ Govind.
31. It is next contended by the counsel for the appellants that since the direction of the bullet is upward and, therefore, the manner in which the incident is alleged to have taken place is incorrect.
32. Heard the learned counsel for the appellants.
33. The appellants have cross-examined the doctors and did not ask any question as to whether the bullet could have changed its direction after entering inside the body or not. In the x-ray report Ex.P/10, a radio opaque foreign body was found in the body of the injured Tillu @ Govind. No exit wound was found. Thus, the prosecution has proved that a gunshot injury was caused and the foreign radio opaque foreign body in the shape of bullet was also found inside the body of the injured. A bullet can always change its direction after hitting a bone. In absence of any specific questions to the doctors with regard to the track of movement of the bullet, it cannot be said that merely because the direction of the bullet was found to be upward, therefore, the gunshot was not fired in the manner in which it has been alleged.
34. Accordingly, this Court is of the considered opinion that the appellant No.1 Ammu @ Amar at the instigation of appellant No.2 Ajji @ Ajit fired a gunshot causing injury to the injured Tillu @ Govind (PW-1).
35. The next question for consideration is as to whether the 16 CRA No.1646/2021 appellants are guilty of offence under Section 307 of IPC or not.
36. Section 307 of IPC reads as under:
"307. Attempt to murder.--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 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."
37. Thus, it is clear that in case if any injury is not caused but an act is done with an intention or knowledge to the effect that if death is caused, then they would be liable for murder, then such an act on the part of an accused would be punishable under Part-I of Section 307 of IPC and if any hurt is caused, then it would be punishable under second part of Section 307 of IPC. Thus, it is clear that the nature of injury is not material but any act which is done with intention or knowledge to cause death is sufficient to convict the accused for offence under Section 307 of IPC. In the present case, the gunshot injury was caused near the left shoulder i.e. left side of mid sub clavicular region (12-15 cm. above the left nipple) which is undisputedly a vital part of the body. In order to ascertain the knowledge or intention, the nature of weapon used by an accused and the part of the body on which the injury is caused are some of the important circumstances. Firearm is undisputedly is a deadly weapon and firing at the chest of the injured clearly indicates the intention or 17 CRA No.1646/2021 motive on the part of the appellants.
38. Under these circumstances, this Court is of the considered opinion that the act alleged against the appellants would certainly bring their case within the purview of Section 307 of IPC. Accordingly, their conviction for offence under Section 307, 34 of IPC is hereby affirmed.
39. So far as the question of sentence is concerned, the Trial Court has already awarded the jail sentence of rigorous imprisonment of seven years and a fine of Rs.1,000/-. If the allegations made against the appellants and the defence taken by the appellants are considered, then it is clear that the incident took place because of old enmity. The incident was premeditated and did not take place all of a sudden without any pre motive.
40. The Supreme Court in the case of State of Himachal Pradesh vs. Nirmala Devi reported in (2017) 7 SCC 262 has held as under:
16. In Zunjarrao Bhikaji Nagarkar case [Zunjarrao Bhikaji Nagarkar v. Union of India, (1999) 7 SCC 409 : 1999 SCC (L&S) 1299] , it was impressed upon by this Court that the penalty to be imposed has to commensurate with the gravity of the offence. In Narinder Singh v. State of Punjab [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] , there is a brief narration of the jurisprudential theories of punishment in criminal cases, described as under : (Narinder Singh case [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] , SCC pp. 475- 77, paras 14-17) "14. The law prohibits certain acts and/or conduct and treats them as offences. Any person 18 CRA No.1646/2021 committing those acts is subject to penal consequences which may be of various kinds.
Mostly, punishment provided for committing offences is either imprisonment or monetary fine or both. Imprisonment can be rigorous or simple in nature. Why are those persons who commit offences subjected to such penal consequences? There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing.
15. Whereas in various countries, sentencing guidelines are provided, statutorily or otherwise, which may guide Judges for awarding specific sentence, in India we do not have any such sentencing policy till date. The prevalence of such guidelines may not only aim at achieving consistencies in awarding sentences in different cases, such guidelines normally prescribe the sentencing policy as well, namely, whether the purpose of awarding punishment in a particular case is more of a deterrence or retribution or rehabilitation, etc. In the absence of such guidelines in India, the courts go by their own perception about the philosophy behind the prescription of certain specified penal consequences for particular nature of crime. For some deterrence and/or vengeance becomes more important whereas another Judge may be more influenced by rehabilitation or restoration as the goal of sentencing. Sometimes, it would be a combination of both which would weigh in the mind of the court in awarding a particular sentence. However, that may be a question of quantum.
16. What follows from the discussion behind the purpose of sentencing is that if a particular crime is to be treated as crime against the society and/or heinous crime, then the deterrence theory as a rationale for punishing the offender becomes more relevant, to be applied in such cases. Therefore, in respect of such offences 19 CRA No.1646/2021 which are treated against the society, it becomes the duty of the State to punish the offender. Thus, even when there is a settlement between the offender and the victim, their will would not prevail as in such cases the matter is in public domain. Society demands that the individual offender should be punished in order to deter others effectively as it amounts to greatest good of the greatest number of persons in a society. It is in this context that we have to understand the scheme/philosophy behind Section 307 of the Code.
17. We would like to expand this principle in some more detail. We find, in practice and in reality, after recording the conviction and while awarding the sentence/punishment the court is generally governed by any or all or combination of the aforesaid factors. Sometimes, it is the deterrence theory which prevails in the minds of the court, particularly in those cases where the crimes committed are heinous in nature or depict depravity, or lack morality. At times it is to satisfy the element of "emotion" in law and retribution/vengeance becomes the guiding factor. In any case, it cannot be denied that the purpose of punishment by law is deterrence, constrained by considerations of justice. What, then, is the role of mercy, forgiveness and compassion in law? These are by no means comfortable questions and even the answers may not be comforting. There may be certain cases which are too obvious, namely, cases involving heinous crime with element of criminality against the society and not parties inter se. In such cases, the deterrence as purpose of punishment becomes paramount and even if the victim or his relatives have shown the virtue and gentility, agreeing to forgive the culprit, compassion of that private party would not move the court in accepting the same as larger and more important public policy of showing the iron hand of law to the wrongdoers, to reduce the commission of such offences, is more important. Cases of murder, rape, or other sexual offences, etc. would clearly fall in this category. After all, justice requires long-term vision. On the other hand, there may be offences falling in the category where the "correctional" objective of criminal law 20 CRA No.1646/2021 would have to be given more weightage in contrast with "deterrence" philosophy.
Punishment, whatever else may be, must be fair and conducive to good rather than further evil. If in a particular case the court is of the opinion that the settlement between the parties would lead to more good; better relations between them; would prevent further occurrence of such encounters between the parties, it may hold settlement to be on a better pedestal. It is a delicate balance between the two conflicting interests which is to be achieved by the court after examining all these parameters and then deciding as to which course of action it should take in a particular case."
17. The offences for which the respondent is convicted prescribe maximum imprisonment and there is no provision for minimum imprisonment. Thus, there is a wide discretion given to the court to impose any imprisonment which may be from one day (or even till the rising of the court) to ten years/life. However, at the same time, the judicial discretion which has been conferred upon the court, has to be exercised in a fair manner keeping in view the well-established judicial principles which have been laid down from time to time, the prime consideration being reason and fair play. Some of the judgments highlighting the manner in which discretion has to be exercised were taken note of in Satish Kumar Jayanti Lal Dabgar v. State of Gujarat [Satish Kumar Jayanti Lal Dabgar v. State of Gujarat, (2015) 7 SCC 359 : (2015) 3 SCC (Cri) 108] and I may reproduce the same : (SCC pp. 370-72, para 18) "18. Likewise, this Court made the following observations regarding sentencing in the cases involved in sexual offences in Sumer Singh v. Surajbhan Singh [Sumer Singh v.
Surajbhan Singh, (2014) 7 SCC 323 : (2014) 3 SCC (Cri) 184] : (SCC pp. 337-39, paras 33-36) '33. It is seemly to state here that though the question of sentence is a matter of discretion, yet the said discretion cannot be used by a court of law in a fanciful and whimsical manner. Very strong reasons on consideration of the relevant factors have to form the fulcrum for lenient use of the said discretion. It is because the ringing of 21 CRA No.1646/2021 poignant and inimitable expression, in a way, the warning of Benjamin N. Cardozo in The Nature of the Judicial Process (Yale University Press, 1921 Edn.) p. 114:
"The Judge even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodised by analogy, disciplined by system, and subordinated to "the primordial necessity of order in social life"."
34. In this regard, we may usefully quote a passage from Ramji Dayawala and Sons (P) Ltd. v. Invest Import [Ramji Dayawala and Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80] : (SCC p. 96, para 20) "20. ... when it is said that a matter is within the discretion of the court it is to be exercised according to well-established judicial principles, according to reason and fair play, and not according to whim and caprice. "Discretion", said Lord Mansfield in R. v. Wilkes [R. v. Wilkes, (1770) 4 Burr 2527 : (1558-1774) All ER Rep 570 : 98 ER 327] , 'when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague, and fanciful, but legal and regular' (see Craies on Statute Law, 6th Edn., p.
273)."
35. In Aero Traders (P) Ltd. v. Ravinder Kumar Suri [Aero Traders (P) Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307] the Court observed : (SCC p. 311, para 6) "6. ... According to Black's Law Dictionary "judicial discretion" means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court's power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word "discretion" connotes necessarily an act of a judicial character, and, as used with reference to 22 CRA No.1646/2021 discretion exercised judicially, it implies the absence of a hard-and-fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27 Corpus Juris Secundum, p. 289.) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion; according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him."
Thus, the Judges are to constantly remind themselves that the use of discretion has to be guided by law, and what is fair under the obtaining circumstances.
36. Having discussed about the discretion, presently we shall advert to the duty of the court in the exercise of power while imposing sentence for an offence. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principle that should be the guiding laser beam is that the punishment should be proportionate. It is the answer of law to the social conscience. In a way, it is an obligation to the society which has reposed faith in the court of law to curtail the evil. While imposing the sentence it is the court's accountability to remind itself about its role and the reverence for rule of law. It must evince the rationalised judicial discretion and not an individual perception or a moral propensity. But, if in the ultimate eventuate the proper sentence is not awarded, the fundamental grammar of sentencing is guillotined. Law cannot tolerate it; society does not withstand it; and sanctity of conscience abhors it. The old saying "the law can hunt one's past" cannot be allowed to be buried in an indecent manner and the rainbow of mercy, for 23 CRA No.1646/2021 no fathomable reason, should be allowed to rule. True it is, it has its own room, but, in all circumstances, it cannot be allowed to occupy the whole accommodation. The victim, in this case, still cries for justice. We do not think that increase in fine amount or grant of compensation under the Code would be a justified answer in law. Money cannot be the oasis. It cannot assume the centre stage for all redemption. Interference in manifestly inadequate and unduly lenient sentence is the justifiable warrant, for the Court cannot close its eyes to the agony and anguish of the victim and, eventually, to the cry of the society. Therefore, striking the balance we are disposed to think that the cause of justice would be best subserved if the respondent is sentenced to undergo rigorous imprisonment for two years apart from the fine that has been imposed by the learned trial Judge.'"
(emphasis supplied)
18. Likewise, stressing upon the principle of proportionality in sentencing in Hazara Singh v. Raj Kumar [Hazara Singh v. Raj Kumar, (2013) 9 SCC 516 : (2014) 1 SCC (Cri) 159] , this Court stressed that special reasons must be assigned for taking lenient view and undue sympathy for the accused is not justified. It was equally important to keep in mind rights of the victim as well as society at large and the corrective theory on the one hand and deterrence principle on the other hand should be adopted on the basis of factual matrix. The following paragraphs from the said judgment under the caption "sentencing policy" need to be referred to : (SCC pp. 521-24, paras 11-17) "11. The cardinal principle of sentencing policy is that the sentence imposed on an offender should reflect the crime he has committed and it should be proportionate to the gravity of the offence. This Court has repeatedly stressed on the central role of proportionality in sentencing of offenders in numerous cases.
12. The factual matrix of this case is similar to the facts and circumstances in Shailesh Jasvantbhai v. State of Gujarat [Shailesh Jasvantbhai v. State of Gujarat(2006) 2 SCC 359 :
(2006) 1 SCC (Cri) 499] wherein the accused was 24 CRA No.1646/2021 convicted under Sections 307/114 IPC and for the same the trial court sentenced the accused for 10 years. However, the High Court, in its appellate jurisdiction, reduced the sentence to the period already undergone. In that case, this Court held that the sentence imposed is not proportionate to the offence committed, hence not sustainable in the eye of the law. This Court observed thus :
(SCC pp. 361-62, paras 7-8) '7. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that:"State of criminal law continues to be--as it should be-- a decisive reflection of social consciousness of society." Therefore, 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 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.
8. Therefore, 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 25 CRA No.1646/2021 having regard to the nature of the offence and the manner in which it was executed or committed, etc.'
13. This position was reiterated by a three-Judge Bench of this Court in Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat [Ahmed Hussein Vali Mohammed Saiyed v. State of Gujarat, (2009) 7 SCC 254 : (2009) 3 SCC (Cri) 368] , wherein it was observed as follows : (SCC p. 281, paras 99-100) '99. ... The object of awarding appropriate sentence should be to protect the society and to deter the criminal from achieving the avowed object to (sic break the) 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. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against the interest of society which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.
100. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The court must not only keep in view the rights of the victim of the crime but the society at large while considering the imposition of appropriate punishment. 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 both the criminal and the victim belong.' In that case, the Court further goes to state that meagre sentence imposed solely on account of lapse of time without considering the degree of the offence will be counterproductive in the long run and against the interest of the society.
14. In Jameel v. State of U.P. [Jameel v. State of U.P., (2010) 12 SCC 532 :
(2011) 1 SCC (Cri) 582] , this Court reiterated the principle by stating that the punishment must be 26 CRA No.1646/2021 appropriate and proportional to the gravity of the offence committed. Speaking about the concept of sentencing, this Court observed thus : (SCC p.
535, paras 15-16) '15. 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 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.
16. It is 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.'
15. In Guru Basavaraj v. State of Karnataka [Guru Basavaraj v. State of Karnataka, (2012) 8 SCC 734 : (2012) 4 SCC (Civ) 594 :
(2013) 1 SCC (Cri) 972] , while discussing the concept of appropriate sentence, this Court expressed that : (SCC pp. 744-45, para 33) '33. ... It is the duty of the court to see that appropriate sentence is imposed regard being had to the commission of the crime and its impact on the social order. The cry of the collective for justice which includes adequate punishment cannot be lightly ignored.'
16. Recently, this Court in Gopal Singh v. State of Uttarakhand [Gopal Singh v. State of Uttarakhand, (2013) 7 SCC 545 : (2013) 3 SCC (Cri) 608] held as under : (SCC p. 551, para 18) '18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The 27 CRA No.1646/2021 principle of just punishment is the bedrock of sentencing in respect of a criminal offence.'
17. We reiterate that in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. 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. We also reiterate that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law. It is 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 court must not only keep in view the rights of the victim of the crime but also the society at large while considering the imposition of appropriate punishment."
19. The following principles can be deduced from the reading of the aforesaid judgment:
19.1. Imprisonment is one of the methods used to handle the convicts in such a way as to protect and prevent them to commit further crimes for a specific period of time and also to prevent others from committing crime on them out of vengeance.
The concept of punishing the criminals by imprisonment has recently been changed to treatment and rehabilitation with a view to modify the criminal tendency among them.
19.2. There are many philosophies behind such sentencing justifying these penal consequences. The philosophical/jurisprudential justification can be retribution, incapacitation, specific deterrence, general deterrence, rehabilitation, or restoration. Any of the above or a combination thereof can be the goal of sentencing.
19.3. Notwithstanding the above theories of punishment, when it comes to sentencing a person for committing a heinous crime, the deterrence theory as a rationale for punishing the offender becomes more relevant. In such cases, the role of 28 CRA No.1646/2021 mercy, forgiveness and compassion becomes secondary.
19.4. In such cases where the deterrence theory has to prevail, while determining the quantum of sentence, discretion lies with the court. While exercising such a discretion, the court has to govern itself by reason and fair play, and discretion is not to be exercised according to whim and caprice. It is the duty of the court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience.
19.5. While considering as to what would be the appropriate quantum of imprisonment, the Court is empowered to take into consideration mitigating circumstances, as well as aggravating circumstances.
The Supreme Court in the case of Surjit Singh vs. Nahara Ram and another reported in (2004) 6 SCC 513 has held as under:
5. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross-cultural conflict where living law must find answer to new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that, "State of criminal law continues to be -- as it should be -- a decisive reflection of social consciousness of society." Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
29 CRA No.1646/2021
6. Therefore, 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. The Supreme Court in the case of Adu Ram vs. Mukna & Ors. reported in (2005) 10 SCC 597 has held as under:
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 social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be resultwise counterproductive in the long run and against societal interest which needs to be cared for and strengthened by a string of deterrence inbuilt in the sentencing system.
17. In the instant case taking note of the background facts and special features of the case custodial sentence of six years would serve the ends of justice. Normally, sentence for conviction for offence relatable to Section 304 Part I IPC would be more. But this is a case which could be, on the facts of the case, covered under Section 304 Part II IPC. Though there is no appeal on behalf of the accused persons, the same is apparently because of reduction of sentence. The enhanced fine has to be deposited, if not already done, within two months from today. In case the fine is not deposited the default custodial sentence will be two years' RI.30 CRA No.1646/2021
41. Considering the nature of firearm used by the appellants as well as the body part of the complainant chosen by the appellants to cause injury coupled with the fact that the incident is an outcome of old enmity between the appellants and Sunil and an innocent person has become victim of the said old enmity, the jail sentence of seven years awarded by the Trial Court does not appear to be higher on side.
Accordingly, the jail sentence of seven years awarded by the Trial Court is hereby affirmed.
42. Ex consequenti, the judgment dated 5.3.2021 passed by 6 th Additional Sessions Judge, Shivpuri, District Shivpuri in S.T.No.34/2017 is hereby affirmed.
43. The appellants are in jail. They shall undergo the remaining jail sentence.
44. Let, a copy of the judgment be immediately provided to the appellants free of cost.
45. The record of the Court below be immediately sent back along with the copy of judgment for necessary information and compliance.
46. The appeal fails and is hereby dismissed.
(G.S. Ahluwalia) Judge (alok) ALOK KUMAR 2022.03.09 18:07:09 +05'30'